Exhibit 2.2
REGISTRATION RIGHTS AGREEMENT
among
PLAYTEX PRODUCTS, INC.
and
X.X. CHILDS EQUITY PARTNERS, L.P.
_______________________________________
Dated as of January 28, 1998
_______________________________________
TABLE OF CONTENTS
Page
1. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
2. Registration Under Securities Act, etc. . . . . . . . . . . . . . . . . .1
2.1 Registration on Request . . . . . . . . . . . . . . . . . . . . . . . . .1
2.2 Incidental Registration . . . . . . . . . . . . . . . . . . . . . . . . .5
2.3 Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . . .9
2.4 Underwritten Offerings. . . . . . . . . . . . . . . . . . . . . . . . . 12
2.5 Preparation; Reasonable Investigation . . . . . . . . . . . . . . . . . 13
2.6 Limitations, Conditions and Qualifications to Obligations under
Registration Covenants . . . . . . . . . . . . . . . . . . . . . . . . 13
2.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4. Rule 144 and Rule 144A. . . . . . . . . . . . . . . . . . . . . . . . . 20
5. Amendments and Waivers. . . . . . . . . . . . . . . . . . . . . . . . . 20
6. Nominees for Beneficial Owners. . . . . . . . . . . . . . . . . . . . . 20
7. Appointment of Representative . . . . . . . . . . . . . . . . . . . . . 20
8. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
9. Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10. Calculation of Percentage Interests in Registrable Securities . . . . . 21
11. No Inconsistent Agreements. . . . . . . . . . . . . . . . . . . . . . . 21
12. Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
13. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
14. Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
15. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
16. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
17. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of January
28, 1998, between PLAYTEX PRODUCTS, INC., a Delaware corporation (the "Company")
and X.X. CHILDS EQUITY PARTNERS, L.P., a Delaware limited partnership (the
"Principal Stockholder") and the other persons who are set forth in Schedule A
hereto (collectively with the Principal Stockholder, the "Childs Holders").
The parties hereby agree as follows:
1. Background. Pursuant to that certain Merger Agreement (as
amended, the "Merger Agreement"), dated as of December 22, 1997, among the
Company, PCG Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of the Company ("Subsidiary"), Personal Care Holdings Inc., a
Delaware corporation ("Target"), and the Principal Stockholder, the Childs
Holders received as part of the consideration for their shares of common stock
of Target, par value $.01 per share, among other things, in the aggregate,
9,257,375 shares (the "Shares") of Common Stock, par value $.01 per share, of
the Company. Capitalized terms used herein but not otherwise defined shall have
the meanings given them in Section 3.
2. Registration Under Securities Act, etc.
2.1 Registration on Request.
(a) Request. At any time after the date that is six months
after the Effective Date (as defined in the Merger Agreement), upon the written
request of the Childs Representative on behalf of one or more holders (the
"Initiating Holders") of Registrable Securities that the Company effect the
registration under the Securities Act of all or part of such Initiating Holders'
Registrable Securities, the Company promptly will give written notice of such
requested registration to all registered holders of Registrable Securities, and
thereupon the Company will use its best efforts to effect, at the earliest
possible date, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has
been so requested to register by such Initiating Holders; and
(ii) all other Registrable Securities which the Company
has been requested to register by the Childs Representative on behalf of
the holders thereof (such holders together with the Initiating Holders
hereinafter are referred to as the "Selling Holders") by written request
given to
the Company within 30 days after the giving of such written notice by the
Company, all to the extent necessary to permit the disposition of the
Registrable Securities so to be registered.
(b) Registration of Other Securities. Whenever the Company
shall effect a registration pursuant to this Section 2.1, no securities other
than Registrable Securities shall be included among the securities covered by
such registration unless the Selling Holders of not less than 66-2/3% of all
Registrable Securities to be covered by such registration shall have consented
in writing to the inclusion of such other securities; provided, however, that
such consent shall not be required with respect to securities required to be
registered by (a) the holders thereof (the "HWH Selling Holders") pursuant to
Section 2.2(a) of the HWH Agreement (such securities, "HWH Securities") and (b)
the holders thereof (the "Third Party Selling Holders" and together with the HWH
Selling Holders, the "Other Selling Holders") pursuant to Section 3(a) of the
Stockholders Agreement (such securities, "Third Party Securities" and, together
with the HWH Securities, the "Other Securities").
(c) Registration Statement Form. Registrations under this
Section 2.1 shall be on such appropriate registration form of the Commission as
shall be reasonably selected by the Company.
(d) Effective Registration Statement. A registration
requested pursuant to this Section 2.1 shall be deemed to have been effected if
a registration statement with respect thereto has become effective and remained
effective in compliance with the provisions of the Securities Act with respect
to the disposition of all Registrable Securities covered by such registration
statement until such time as all of such Registrable Securities have been
disposed of in accordance with the intended methods of disposition by the seller
or sellers thereof set forth in such registration statement (unless the failure
to so dispose of such Registrable Securities shall be caused solely by reason of
a failure on the part of the Selling Holders); provided, that such period need
not exceed 135 days. Notwithstanding the foregoing, a registration requested
pursuant to this Section 2.1 shall not be deemed to have been effected if (i)
after it has become effective, such registration is interfered with by any stop
order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason not attributable solely to the
Selling Holders and has not thereafter become effective, or (ii) the conditions
to closing specified in the underwriting agreement, if any, entered into in
connection with such registration are not satisfied or waived, other than solely
by reason of a failure on the part of the Selling Holders.
(e) Selection of Underwriters. The underwriter or
underwriters of each underwritten offering of the Registrable Securities so to
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be registered shall be selected by the Childs Representative on behalf of
Selling Holders of more than 50% of Registrable Securities to be included in
such registration and shall be reasonably acceptable to the Company. For
purposes of this Section 2.1(e), the Company hereby acknowledges that each of
the underwriters identified on Schedule 2.1(e) hereto shall be deemed to be
acceptable to the Company; provided that such acknowledgment is subject to the
condition that with respect to any underwriter identified on such Schedule
selected by the Selling Holders, there shall have not occurred since the date
hereof any material change with respect to such underwriter which, in the
reasonable determination of the Company, makes such underwriter unqualified to
participate in an underwritten offering of Common Stock of which change the
Company shall have notified the Childs Representative prior to any such demand
under this Section 2.1 upon request from the Childs Representative.
(f) Priority in Requested Registration. If the managing
underwriter of any underwritten offering shall advise the Company in writing
(and the Company shall so advise each Selling Holder of Registrable Securities
requesting registration of such advice) that, in its opinion, the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering within a price range acceptable to the Childs
Representative on behalf of Selling Holders of 66-2/3% of the Registrable
Securities requested to be included in such registration, the Company, except as
provided below, will include in such registration, to the extent of the number
and type which the Company is so advised can be sold in (or during the time of)
such offering (the "Maximum Amount"),
first, Third Party Securities requested to be included in such
registration to the extent required to be included therein pursuant to the
Stockholders Agreement, pro rata (based on the number of Third Party Securities
requested to be included in such registration) among the Third Party Selling
Holders requesting participation in such registration;
second, Registrable Securities requested to be included in such
registration up to an aggregate amount equal to the lesser of (A) the aggregate
amount of Registrable Securities requested to be included in such registration
and (B) (x) if such registration is the first requested pursuant to this Section
2.1 (the "first registration"), the excess, if any, of the Maximum Amount over
the amount of securities provided for in the preceding paragraph (such amount,
the "Adjusted Maximum Amount"), but not in excess of 75% of the Maximum Amount,
or (y) if such registration is the second requested pursuant to this Section 2.1
(the "second registration"), the sum of 50% of the Adjusted Maximum Amount plus
the Recapture Amount;
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third, HWH Securities requested to be included in such registration up
to an aggregate amount equal to the lesser of (A) the aggregate amount of HWH
Securities requested to be included in such registration and (B) (x) if such
registration is the first registration, the excess, if any, of the Maximum
Amount over the amount of securities provided for in the two preceding
paragraphs but not in excess of 25% of the Maximum Amount, or (y) if such
registration is the second registration, 50% of the Adjusted Maximum Amount less
the Recapture Amount;
fourth, to the extent that the amount of securities provided for in
the three immediately preceding paragraphs is less than the Maximum Amount,
Registrable Securities or HWH Securities, as applicable, requested to be
included in such registration, up to the aggregate amount requested by the
Selling Holders and HWH Selling Holders, respectively, to be included in such
registration in excess of the amounts provided for in the three immediately
preceding paragraphs; and
fifth, all securities proposed to be sold by the Company for its own
account;
provided, that from and after the date on which the Stockholders Agreement is no
longer in effect, all references to Third Party Securities in the foregoing
priorities shall be deleted and the priorities provided for herein shall be
automatically adjusted accordingly.
For purposes of the foregoing (A) all Registrable Securities included
in such registration shall be allocated pro rata (based on the number of
Registrable Securities held by each of the Selling Holders) among the Selling
Holders requesting such registration and (B) all HWH Securities included in such
registration shall be allocated pro rata (based on the number of HWH Securities
held by each of the HWH Selling Holders) among the HWH Selling Holders
requesting participation in such registration.
Notwithstanding the foregoing, if the total number of Registrable
Securities requested to be included in any registration cannot be included, the
Childs Representative on behalf of the holders of Registrable Securities
requesting registration thereof pursuant to this Section 2.1, representing not
less than 50% of the Registrable Securities with respect to which registration
has been requested, shall have the right to withdraw the request for
registration by giving written notice to the Company within 20 days after
receipt of the notice from the managing underwriter described above by the
Company and, in the event of such withdrawal, such request shall not be counted
for purposes of the requests for registration to which holders of Registrable
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Securities are entitled pursuant to this Section 2.1. If a request for
registration is withdrawn pursuant to the immediately preceding sentence and at
least 80% of the Registrable Securities requested to be included could have been
included therein, the Registration Expenses incurred by the Company in
connection with such withdrawn registration through the date of the Company's
receipt of the notice requesting such withdrawal, shall be reimbursed by the
Selling Holders, pro rata (based on the number of registrable securities
requested to be included therein) among the Selling Holders.
(g) Limitations on Registration Requests. Notwithstanding
anything in this Section 2.1 to the contrary, in no event will the Company be
required to effect (i) in the aggregate, more than two registrations pursuant to
this Section 2.1; provided that in the event that the holders of Registrable
Securities are unable to include at least 50% of the relevant Maximum Amount
with respect to any such registration requested pursuant to Section 2.1(a) as a
result solely of the participation of the Third Party Selling Holders in such
registration, then, unless the amount requested to be included in such
registration is less than 50% of the relevant Maximum Amount, such registration
shall not be counted for purposes of this clause (i), (ii) a registration
pursuant to this Section 2.1 within the six-month period occurring immediately
subsequent to the effectiveness (within the meaning of Section 2.1(d)) of a
registration statement filed pursuant to this Section 2.1, unless a majority of
the Disinterested Directors determines that effecting such second registration
within the six-month period would not have a material adverse effect on the
market price of the Common Stock, or (iii) a registration pursuant to
Section 2.1 covering less than 30% of the then outstanding Registrable
Securities.
(h) Expenses. The Company will pay all Registration
Expenses in connection with any registrations requested pursuant to this
Section 2.1.
2.2 Incidental Registration.
(a) Right to Include Registrable Securities. If the
Company at any time proposes to register any of its Common Stock under the
Securities Act by registration on any form other than Forms S-4 or S-8, whether
or not for sale for its own account, it will each such time give prompt written
notice to all registered holders of Registrable Securities of its intention to
do so and of such holders' rights under this Section 2.2. Upon the written
request of any such holder (a "Requesting Holder") (which request shall specify
the Registrable Securities intended to be disposed of by such Requesting Holder)
made as promptly as practicable and in any event within 30 days after the
receipt of any such notice from the Company (15 days if the Company states in
such written notice or gives telephonic or telecopied notice to all registered
holders of Registrable Securities, with written confirmation to follow promptly
thereafter, that (i) such registration will be on Form S-3 and (ii) such shorter
period of time is required because of a planned filing date), the Company will
use its best efforts to effect the registration under the Securities Act of all
Registrable
5
Securities which the Company has been so requested to register by the Requesting
Holders thereof; provided, that prior to the effective date of the registration
statement filed in connection with such registration, promptly upon notification
to the Company from the managing underwriter of the price at which such
securities are to be sold, if such price is below the price which any Requesting
Holder shall have indicated to be acceptable to such Requesting Holder, the
Company shall so advise such Requesting Holder of such price, and such
Requesting Holder shall then have the right to withdraw its request to have its
Registrable Securities included in such registration statement; provided,
further, however, that if, at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to each Requesting Holder of Registrable Securities and (x) in the
case of a determination not to register, shall be relieved of its obligation to
register any Registrable Securities in connection with such registration (but
not from any obligation of the Company to pay the Registration Expenses in
connection therewith), without prejudice, however, to the rights of any holder
or holders of Registrable Securities entitled to do so to cause such
registration to be effected as a registration under Section 2.1, and (y) in the
case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities, for the same period as the delay in
registering such other securities. No registration effected under this
Section 2.2 shall relieve the Company of its obligation to effect any
registration upon request under Section 2.1.
(b) Priority in Incidental Registrations. If the managing
underwriter of any underwritten offering shall inform the Company by letter of
its opinion that the number or type of Registrable Securities and Other
Securities requested to be included in such registration would materially
adversely affect such offering, and the Company has so advised the Requesting
Holders and the holders of Other Securities that have requested Other Securities
to be included in such registration ("Other Requesting Holders") in writing,
then the Company will include in such registration, to the extent of the number
and type which the Company is so advised can be sold in (or during the time of)
such offering (the "Incidental Maximum Amount"):
(A) if such registration is the first or second registration
initiated pursuant to Section 2.1 of the HWH Agreement:
first, Registrable Securities requested to be included in such
registration up to the Recapture Amount;
second, HWH Securities requested to be included in such registration
up to an amount equal to the lesser of (i) the aggregate amount of HWH
Securities
6
requested to be included in such registration and (ii) 85% of the Incidental
Maximum Amount less the Recapture Amount;
third, Third Party Securities requested to be included in such
registration to the extent required to be included therein pursuant to the
Stockholders Agreement, pro rata (based on the number of Third Party Securities
requested to be included in such registration) among the Third Party Requesting
Holders requesting participation in such registration;
fourth, Registrable Securities requested to be included in such
registration up to an amount equal to the lesser of (i) the aggregate amount of
Registrable Securities requested to be included in such registration, (ii) the
excess of the Incidental Maximum Amount over the amount provided for in the
three preceding paragraphs and (iii) 15% of the Incidental Maximum Amount;
fifth, Registrable Securities and Other Securities requested to be
included in such registration, up to the aggregate amount requested by the
Selling Holders and HWH Selling Holders to be included in such registration in
excess of the amounts provided for in the preceding paragraphs; and
sixth, securities proposed by the Company to be sold for its own
account;
(B) if such registration is the third or fourth registration
initiated pursuant to Section 2.1 of the HWH Agreement:
first, Third Party Securities requested to be included in such
registration to the extent required to be included therein pursuant to the
Stockholders Agreement, pro rata (based on the number of Third Party Securities
requested to be included in such registration) among the Third Party Requesting
Holders requesting participation in such registration;
second, Registrable Securities and HWH Securities requested to be
included in such registration, pro rata (based on the number of securities of
the Company held by each Requesting Holder and each HWH Selling Holder) among
such Requesting Holders and HWH Selling Holders; and
third, securities proposed by the Company to be sold for its own
account;
(C) if such registration is initiated by the Third Party Selling
Holders pursuant to Section 3(b) of the Stockholders Agreement:
7
first, Third Party Securities requested to be included in such
registration by the Third Party Requesting Holders to the extent required to be
included therein pursuant to the Stockholders Agreement, pro rata (based on the
number of Third Party Securities requested to be included in such registration);
second, Registrable Securities and HWH Securities requested to be
included in such registration, pro rata (based on the number of securities of
the Company held by each Requesting Holder and each HWH Requesting Holder) among
such Requesting Holders and HWH Requesting Holders; and
third, securities proposed by the Company to be sold for its own
account; and
(D) in all other incidental registrations:
first, securities proposed by the Company to be sold for its own
account;
second, Third Party Securities requested to be included in such
registration to the extent required to be included therein pursuant to the
Stockholders Agreement and HWH Securities, pro rata (based on the number of
Other Securities requested to be included in such registration by each Other
Requesting Holder) among the Other Requesting Holders requesting participation
in such registration; and
third, Registrable Securities;
provided, that from and after the date that the Stockholders Agreement is no
longer in effect, (x) all references to Third Party Securities in the priorities
set forth in clauses (A) and (B) above shall be deleted and the priorities
provided for herein shall be automatically adjusted accordingly, (y) clause (C)
above shall be deleted in its entirety, and (z) clause (D) shall be redesignated
as clause (C) and shall be amended in its entirety to read as follows:
"(C) in all other incidental registrations:
first, securities proposed by the Company to be sold for its own
account; and
second, Registrable Securities and HWH Securities requested to be
included in such registration, pro rata (based on the number of securities of
the Company held by each Requesting Holder and each HWH Requesting Holder) among
the Requesting Holders and the HWH Requesting Holders requesting participation
in such registration."
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For purposes of the foregoing, to the extent not otherwise provided
for above, (x) all Registrable Securities included in any such registration
shall be allocated pro rata (based on the number of Registrable Securities held
by each of the Requesting Holders) among the Requesting Holders and (y) all HWH
Securities included in any such registration shall be allocated pro rata (based
on the number of HWH Securities held by each of the HWH Requesting Holders)
among the HWH Requesting Holders.
(c) Expenses. The Company will pay all Registration
Expenses in connection with any registration contemplated pursuant to this
Section 2.2.
2.3 Registration Procedures. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Sections 2.1 and 2.2, the
Company will, as expeditiously as possible:
(i) prepare and (within 90 days after the end of the period
within which requests for registration may be given to the Company) file
with the Commission the requisite registration statement to effect such
registration and thereafter use its best efforts to cause such registration
statement to become effective; provided, however, that the Company may
discontinue any registration of its securities which are not Registrable
Securities (and, under the circumstances specified in Section 2.2(a),
Registrable Securities) at any time prior to the effective date of the
registration statement relating thereto;
(ii) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective in accordance with Section 2.1(d) hereof and to comply
with the provisions of the Securities Act with respect to the disposition
of all Registrable Securities covered by such registration statement until
such time as all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement; provided, that
except with respect to any such registration statement filed pursuant to
Rule 415 under the Securities Act, such period need not exceed 135 days;
(iii) furnish to each seller of Registrable Securities
covered by such registration statement, such number of conformed copies of
such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
prospectus contained in such registration statement (including each
preliminary prospectus
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and any summary prospectus) and any other prospectus filed under Rule 424 under
the Securities Act, in conformity with the requirements of the Securities Act,
and such other documents, as such seller may reasonably request;
(iv) use its reasonable best efforts (x) to register or
qualify all Registrable Securities and other securities covered by such
registration statement under such other securities or blue sky laws of such
States of the United States of America where an exemption is not available
and as the sellers of Registrable Securities covered by such registration
statement shall reasonably request, (y) to keep such registration or
qualification in effect for so long as such registration statement remains
in effect and (z) to take any other action which may be reasonably
necessary or advisable to enable such sellers to consummate the disposition
in such jurisdictions of the securities to be sold by such sellers, except
that the Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction
wherein it would not but for the requirements of this subdivision (iv) be
obligated to be so qualified or to consent to general service of process in
any such jurisdiction;
(v) use its best efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other federal or state governmental agencies or
authorities as may be necessary in the reasonable opinion of counsel to the
Company and counsel to the seller or sellers of Registrable Securities to
enable the seller or sellers thereof to consummate the disposition of such
Registrable Securities;
(vi) furnish at the effective date of such registration
statement to each seller of Registrable Securities, and each such seller's
underwriters, if any, a signed counterpart of:
(x) an opinion of counsel for the Company, dated the
effective date of such registration statement and, if applicable, the
date of the closing under the underwriting agreement; and
(y) a "comfort" letter signed by the independent
public accountants who have certified the Company's financial
statements included or incorporated by reference in such registration
statement,
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountants' comfort letter, with respect to events subsequent to the date
of such
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financial statements, as are customarily covered in opinions of issuer's counsel
and in accountants' comfort letters delivered to the underwriters in
underwritten public offerings of securities and, in the case of the accountants'
comfort letter, such other financial matters, and, in the case of the legal
opinion, such other legal matters, as the underwriters may reasonably request;
(vii) notify each seller of Registrable Securities
covered by such registration statement at any time when a prospectus
relating thereto is required to be delivered under the Securities Act,
upon discovery that, or upon the happening of any event as a result of
which, the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, in the light of the
circumstances under which they were made, and at the request of any such
seller promptly prepare and furnish to it a reasonable number of copies
of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances under which they were made;
(viii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable (but not more than
eighteen months after the effective date of such registration statement),
an earnings statement covering the period of at least twelve months
beginning with the first full calendar month after the effective date of
such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder;
(ix) provide and cause to be maintained a transfer agent and
registrar (which, in each case, may be the Company) for all Registrable
Securities covered by such registration statement from and after a date not
later than the effective date of such registration; and
(x) use its best efforts to list all Registrable Securities
covered by such registration statement on any national securities exchange
on which Registrable Securities of the same class covered by such
registration statement are then listed and, if no such Registrable
Securities are so listed, on any national securities exchange on which the
Common Stock is then listed.
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The Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company such information regarding
such seller and the distribution of such securities as the Company may from time
to time reasonably request in writing.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in subdivision (vii) of this
Section 2.3, such holder will forthwith discontinue such holder's disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subdivision (vii) of this
Section 2.3 and, if so directed by the Company, will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies, then in
such holder's possession of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice.
2.4 Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering by holders of Registrable Securities
pursuant to a registration requested under Section 2.1, the Company will enter
into an underwriting agreement with such underwriters for such offering, such
agreement to be reasonably satisfactory in substance and form to the Childs
Representative on behalf of the holders of Registrable Securities representing
at least 50% of all Registrable Securities and the underwriters and to contain
such representations and warranties by the Company and such other terms as are
generally prevailing in agreements of that type, including, without limitation,
indemnities to the effect and to the extent provided in Section 2.7 or such
other indemnities as are customarily received by underwriters in public
offerings of similar securities. The holders of the Registrable Securities
proposed to be sold by such underwriters will reasonably cooperate with the
Company in the negotiation of the underwriting agreement. Such holders of
Registrable Securities to be sold by such underwriters shall be parties to such
underwriting agreement and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such holders of Registrable Securities and that any or all of
the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
holders of Registrable Securities. No holder of Registrable Securities shall be
required to make any representations or warranties to or agreements with the
Company other than representations, warranties or agreements regarding such
holder, such holder's Registrable Securities and such holder's intended method
of distribution or any other representations required by applicable law.
12
(b) Incidental Underwritten Offerings. If the Company
proposes to register any of its securities under the Securities Act as
contemplated by Section 2.2 and such securities are to be distributed by or
through one or more underwriters, the Company will, if requested by any
Requesting Holder of Registrable Securities, use its reasonable best efforts to
arrange for such underwriters to include all the Registrable Securities to be
offered and sold by such Requesting Holder among the securities of the Company
to be distributed by such underwriters, subject to the provisions of
Section 2.2(b). The holders of Registrable Securities to be distributed by such
underwriters shall be parties to the underwriting agreement between the Company
and such underwriters and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such holders of Registrable Securities and that any or all of
the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
holders of Registrable Securities. Any such Requesting Holder of Registrable
Securities shall not be required to make any representations or warranties to or
agreements with the Company or the underwriters other than representations,
warranties or agreements regarding such Requesting Holder, such Requesting
Holder's Registrable Securities and such Requesting Holder's intended method of
distribution or any other representations required by applicable law.
2.5 Preparation; Reasonable Investigation. In connection with
the preparation and filing of each registration statement under the Securities
Act pursuant to this Agreement, the Company will give the Childs Representative
on behalf of the holders of Registrable Securities to be registered under such
registration statement, their underwriters, if any, and their respective counsel
the opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the Commission, and
each amendment thereof or supplement thereto, and will give each of them such
reasonable access to its books and records and such opportunities to discuss the
business of the Company with its officers and the independent public accountants
who have certified its financial statements as shall be necessary, in the
opinion of such holders' and such underwriters' respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act.
2.6 Limitations, Conditions and Qualifications to Obligations
under Registration Covenants. The Company shall be entitled to postpone for a
reasonable period of time (but not exceeding 90 days) the filing of any
registration statement otherwise required to be prepared and filed by it
pursuant to Section 2.1 if the Company determines, in its reasonable judgment,
that such registration and offering would interfere with any financing,
acquisition, corporate reorganization or other material transaction involving
the Company and promptly gives the holders of
13
Registrable Securities requesting registration thereof pursuant to Section 2.1
written notice of such determination, containing a general statement of the
reasons for such postponement and an approximation of the anticipated delay. If
the Company shall so postpone the filing of a registration statement, holders of
Registrable Securities requesting registration thereof pursuant to Section 2.1,
representing not less than 50% of the Registrable Securities with respect to
which registration has been requested, shall have the right to withdraw the
request for registration by giving written notice to the Company within 30 days
after receipt of the notice of postponement and, in the event of such
withdrawal, such request shall not be counted for purposes of the requests for
registration to which holders of Registrable Securities are entitled pursuant to
Section 2.1 hereof.
2.7 Indemnification.
(a) Indemnification by the Company. The Company will, and
hereby does, indemnify and hold harmless, in the case of any registration
statement filed pursuant to Section 2.1 or 2.2, each seller of any Registrable
Securities covered by such registration statement and each other Person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls such seller or any such underwriter
within the meaning of the Securities Act or the Exchange Act, and their
respective directors, officers, partners, agents and affiliates, against any
losses, claims, damages or liabilities, joint or several, to which such seller
or underwriter or any such director, officer, partner, agent, affiliate or
controlling person may become subject under the Securities Act or otherwise,
including, without limitation, the reasonable fees and expenses of legal
counsel, insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Company will reimburse such seller or
underwriter and each such director, officer, partner, agent, affiliate and
controlling Person for any reasonable legal or any other expenses incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided, however, that the Company shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to
14
the Company by or on behalf of such seller or underwriter, as the case may be,
specifically stating that it is for use in the preparation thereof; provided,
further, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement of any material fact
contained in any such registration statement, preliminary prospectus, final
prospectus or summary prospectus contained therein or any omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances in which they were made not
misleading in a prospectus or prospectus supplement, if such untrue statement or
omission is completely corrected in an amendment or supplement to such
prospectus or prospectus supplement, the seller of the Registrable Securities
has an obligation under the Securities Act to deliver a prospectus or prospectus
supplement in connection with such sale of Registrable Securities and the seller
of Registrable Securities thereafter fails to deliver such prospectus or
prospectus supplement as so amended or supplemented prior to or concurrently
with the sale of Registrable Securities to the person asserting such loss,
claim, damage or liability after the Company has furnished such seller with a
sufficient number of copies of the same. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
seller or underwriter or any such director, officer, partner, agent, affiliate
or controlling person and shall survive the transfer of such securities by such
seller or underwriter.
(b) Indemnification by the Sellers. As a condition to
including any Registrable Securities in any registration statement, the Company
shall have received an undertaking reasonably satisfactory to it from the
prospective seller of such Registrable Securities, to indemnify and hold
harmless (in the same manner and to the same extent as set forth in
Section 2.7(a)) the Company, and each director of the Company, each officer of
the Company and each other Person, if any, who participates as an underwriter in
the offering or sale of such securities and each other Person who controls the
Company or any such underwriter within the meaning of the Securities Act or the
Exchange Act, with respect to any statement or alleged statement in or omission
or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such seller specifically stating
that it is for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement; provided, however, that the liability of such indemnifying party
under this Section 2.7(b) shall be limited to the amount of proceeds received by
such indemnifying party in the offering giving rise to such liability. Such
indemnity shall remain in full force and effect, regardless of any investigation
made by or on
15
behalf of the Company or any such director, officer or controlling person and
shall survive the transfer of such securities by such seller.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in Section 2.7(a) or (b), such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party,
give written notice to the latter of the commencement of such action; provided,
however, that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under the
preceding subdivisions of this Section 2.7, except to the extent that the
indemnifying party is actually and materially prejudiced by such failure to give
notice. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it may wish, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, that any indemnified
party may, at its own expense, retain separate counsel to participate in such
defense. Notwithstanding the foregoing, in any action or proceeding in which
both the Company and an indemnified party is, or is reasonably likely to become,
a party, such indemnified party shall have the right to employ separate counsel
at the Company's expense and to control its own defense of such action or
proceeding if, in the reasonable opinion of counsel to such indemnified party,
(a) there are or may be legal defenses available to such indemnified party or to
other indemnified parties that are different from or additional to those
available to the Company or (b) any conflict or potential conflict exists
between the Company and such indemnified party that would make such separate
representation advisable; provided, however, that in no event shall the Company
be required to pay fees and expenses under this Section 2.7 for more than one
firm of attorneys representing the indemnified parties (together, if
appropriate, with one firm of local counsel per jurisdiction) in any one legal
action or group of related legal actions. No indemnifying party shall be liable
for any settlement of any action or proceeding effected without its written
consent, which consent shall not be unreasonably withheld. No indemnifying
party shall, without the consent of the indemnified party, which consent shall
not be unreasonably withheld, consent to entry of any judgment or enter into any
settlement which does not include as a term thereof the giving by the claimant
or plaintiff to such indemnified party of a release from all liability in
respect to such claim or litigation or which requires action other than the
payment of money by the indemnifying party.
(d) Contribution. If the indemnification provided for in
this Section 2.7 shall for any reason be held by a court to be unavailable to an
indemnified party under Section 2.7(a) or (b) hereof in respect of any loss,
claim, damage or liability, or any action in respect thereof, then, in lieu of
the amount paid or
16
payable under Section 2.7(a) or (b), the indemnified party and the indemnifying
party under Section 2.7(a) or (b) shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating the same), (i) in such proportion as
is appropriate to reflect the relative fault of the Company and the prospective
sellers of Registrable Securities covered by the registration statement which
resulted in such loss, claim, damage or liability, or action or proceeding in
respect thereof, with respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action or proceeding in respect
thereof, as well as any other relevant equitable considerations or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and such prospective sellers from the offering of the
securities covered by such registration statement, provided, that for purposes
of this clause (ii), the relative benefits received by the prospective sellers
shall be deemed not to exceed the amount of proceeds received by such
prospective sellers. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. Such prospective sellers' obligations to contribute as
provided in this Section 2.7(d) are several in proportion to the relative value
of their respective Registrable Securities covered by such registration
statement and not joint. In addition, no Person shall be obligated to
contribute hereunder any amounts in payment for any settlement of any action or
claim effected without such Person's consent, which consent shall not be
unreasonably withheld.
(e) Other Indemnification. Indemnification and
contribution similar to that specified in the preceding subdivisions of this
Section 2.7 (with appropriate modifications) shall be given by the Company and
each seller of Registrable Securities with respect to any required registration
or other qualification of securities under any federal or state law or
regulation of any governmental authority other than the Securities Act.
(f) Indemnification Payments. The indemnification and
contribution required by this Section 2.7 shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, as and
when bills are received or expense, loss, damage or liability is incurred.
3. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
17
"Common Stock" shall mean and include the Common Stock, par value $.01
per share, of the Company and each other class of capital stock of the Company
that does not have a preference over any other class of capital stock of the
Company as to dividends or upon liquidation, dissolution or winding up of the
Company and, in each case, shall include any other class of capital stock of the
Company into which such stock is reclassified or reconstituted.
"Disinterested Director" means, with respect to any transaction or
series of related transactions, a member of the board of directors of the
Company who does not have any material direct or indirect financial interest in
or with respect to such transaction or series of related transactions.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any superseding Federal statute, and the rules and regulations promulgated
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Exchange Act of 1934, as amended, shall
include a reference to the comparable section, if any, of any such superseding
Federal statute.
"HWH Agreement" means the Registration Rights Agreement dated as of
March 17, 1995 among the Company, HWH Capital Partners, L.P., HWH Valentine
Partners, L.P., and HWH Surplus Valentine Partner, L.P.
"Incidental Maximum Amount" is defined in Section 2.2(b).
"Initiating Holder" is defined in Section 2.1.
"Person" means any individual, firm, corporation, partnership, limited
liability company or partnership, trust, incorporated or unincorporated
association, joint venture, joint stock company, government (or an agency or
political subdivision thereof) or other entity of any kind and shall include any
successor (by merger or otherwise) of such entity.
"Recapture Amount" means the sum of (A) in the event that Selling
Holders have requested registration of Registrable Securities representing, in
the aggregate, more than the Adjusted Maximum Amount with respect to the first
registration effected by the Company pursuant to Section 2.1 hereof, the excess,
if any, of (x) the lower of 75% of the Maximum Amount with respect to such
registration or the aggregate amount requested by the Selling Holders to be
included in such registration, over (y) the number of Registrable Securities
included in such registration, plus (B) in the event that Requesting Holders
have requested registration of Registrable Securities representing, in the
aggregate, more than 15% of the Incidental Maximum Amount with respect to the
first registration effected by the Company pursuant to Section 2.1 of the HWH
Agreement, the excess, if any, of (x) 15% of such Incidental Maximum Amount,
over (y) the number of Registrable Securities included in such registration.
The Recapture Amount in respect of any registration effected by the Company
pursuant to
18
Section 2.1 hereof or Section 2.1 of the
HWH Agreement shall be adjusted to reflect the inclusion of any portion of the
Recapture Amount included in any prior registration.
"Registrable Securities" means any Shares and any Related Registrable
Securities. As to any particular Registrable Securities, once issued, such
securities shall cease to be Registrable Securities when (a) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, (b) they shall have been sold
as permitted by Rule 144 (or any successor provision) under the Securities Act,
(c) they shall have been otherwise transferred, new certificates for them not
bearing a legend restricting further transfer shall have been delivered by the
Company and subsequent public distribution of them shall not require
registration of such distribution under the Securities Act, (d) they shall have
been transferred or distributed to any limited partner, general partner, member
or holder of interests (however called) of any Childs Holder or (e) they shall
have ceased to be outstanding.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with Section 2, including, without limitation, all
registration and filing fees, all fees of the New York Stock Exchange, other
national securities exchanges or the National Association of Securities Dealers,
Inc., all fees and expenses of complying with securities or blue sky laws, all
word processing, duplicating and printing expenses, messenger and delivery
expenses, the fees and disbursements of counsel for the Company and of its
independent public accountants, including the expenses of "comfort" letters
required by or incident to such performance and compliance, any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities (excluding any underwriting discounts or commissions with respect to
the Registrable Securities) and the reasonable fees and expenses of one counsel
to the Selling Holders (selected by Selling Holders representing at least 50% of
the Registrable Securities covered by such registration); provided, however,
that in the event the Company shall determine, in accordance with Section 2.2(a)
or Section 2.6, not to register any securities with respect to which it had
given written notice of its intention to so register to holders of Registrable
Securities, all of the costs of the type (and subject to any limitation to the
extent) set forth in this definition and incurred by Requesting Holders in
connection with such registration on or prior to the date the Company notifies
the Requesting Holders of such determination shall be deemed Registration
Expenses.
19
"Related Registrable Securities" means with respect to the Shares any
securities of the Company issued or issuable with respect to any of the Shares
by way of a dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise.
"Requesting Holder" is defined in Section 2.2.
"Securities Act" means the Securities Act of 1933, as amended, or any
superseding Federal statute, and the rules and regulations promulgated
thereunder, all as the same shall be in effect at the time. References to a
particular section of the Securities Act of 1933, as amended, shall include a
reference to the comparable section, if any, of any such superseding Federal
statute.
"Securityholder" means any of the parties to the HWH Agreement and the
Stockholders Agreement, respectively, in each case other than the Company.
"Selling Holder" is defined in Section 2.1.
"Stockholders Agreement" means the Amended and Restated Stockholders
Agreement, dated as of November 5, 1991, by and among Playtex FP Group
Incorporated, the management investors listed on Schedule A thereto, XX-Xxx
Acquisition Fund, L.P., Xxxxxx X. Xxx Company and the related persons thereof
set forth on Schedule B thereto, Chesterfield Investments and Xxxx Xxx
Corporation, as amended by Amendment No. 1, dated as of March 17, 1995 and
effective as of June 6, 1995, by and among the Company, Xxxx X. Xxxxxx, Xxxxxxx
Xxxxxx Trust, Xxxxxxx Xxxxxx Trust, Xxxxx Xxxxx Trust, Hercules X. Xxxxx,
Xxxxxxxxx Xxxxx Trust, Xxxxx Xxxxx Trust, Xxxxxxx Xxxxx Trust, Xxxxxx X. Xxxxx
and the 1989 Xxxxxx X. Xxx Nominee Trust, dated as of September 29, 1989.
4. Rule 144 and Rule 144A. The Company shall take all actions
reasonably necessary to enable holders of Registrable Securities to sell such
securities without registration under the Securities Act within the limitation
of the provisions of (a) Rule 144 under the Securities Act, as such Rule may be
amended from time to time, (b) Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or (c) any similar rules or regulations
hereafter adopted by the Commission. Upon the request of any holder of
Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
5. Amendments and Waivers. This Agreement may be amended with the
consent of the Company and the Company may take any action herein prohibited, or
omit to perform any act herein required to be performed by it, only if the
Company shall have obtained the written consent to such amendment, action or
omission to act, of the holder or holders of at least 50% of the Registrable
Securities affected by such amendment, action or
20
omission to act. Each holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any consent authorized by this
Section 5, whether or not such Registrable Securities shall have been marked to
indicate such consent.
6. Nominees for Beneficial Owners. In the event that any
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its election in writing delivered to the
Company, be treated as the holder of such Registrable Securities for purposes of
any request or other action by any holder or holders of Registrable Securities
pursuant to this Agreement or any determination of any number or percentage of
shares of Registrable Securities held by any holder or holders of Registrable
Securities contemplated by this Agreement. If the beneficial owner of any
Registrable Securities so elects, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership of such Registrable
Securities.
7. Appointment of Representative. Each Childs Holder hereby
authorizes and appoints the Principal Stockholder as its representative and
agent for purposes of accepting and delivering notices and taking actions
hereunder on behalf of each such Childs Holder hereunder and the Company
acknowledges and consents thereto. The Principal Stockholder acting in such
capacity is sometimes referred to herein as the "Childs Representative."
8. Notices. All notices, demands and other communications provided
for or permitted hereunder shall be made in writing and shall be by registered
or certified first-class mail, return receipt requested, telecopier, courier
service or personal delivery:
(a) if to the Principal Stockholder, addressed to it in the
manner set forth in the Merger Agreement, or at such other address as it shall
have furnished to the Company in writing in the manner set forth herein; or
(b) if to the Company, addressed to it in the manner set forth
in the Merger Agreement, or at such other address as the Company shall have
furnished to each holder of Registrable Securities at the time outstanding in
the manner set forth herein.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; when delivered by a
courier, if delivered by overnight courier service; three business days after
being deposited in the mail, postage prepaid, if mailed; and when receipt is
acknowledged, if telecopied.
21
9. Assignment. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and, with respect to the
Company only, its respective successors and permitted assigns.
10. Calculation of Percentage Interests in Registrable Securities.
For purposes of this Agreement, all references to a percentage of the
Registrable Securities shall be calculated based upon the number of Registrable
Securities outstanding at the time such calculation is made.
11. No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities, or modify, amend, supplement
or extend any existing agreement with respect to its securities, which is or
will be inconsistent with the rights granted to the holders of Registrable
Securities in this Agreement.
12. Remedies. Each holder of Registrable Securities, in addition to
being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
13. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all of the rights and privileges of the
Principal Stockholder shall be enforceable to the fullest extent permitted by
law.
14. Entire Agreement. This Agreement, together with the Merger
Agreement (including the exhibits and schedules thereto) and the Stockholders
Agreement, is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein.
This Agreement, the Merger Agreement (including the exhibits and schedules
thereto) and the Stockholders Agreement supersede all prior agreements and
understandings between the parties with respect to such subject matter.
22
15. Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
16. Governing Law. This Agreement has been negotiated, executed and
delivered in the State of New York and shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of law.
17. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed an original and all of which taken together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their respective representatives hereunto duly
authorized as of the date first above written.
PLAYTEX PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
and Chief Financial Officer
23
X.X. CHILDS EQUITY PARTNERS, L.P.
By: X.X. CHILDS ADVISORS, L.P., its
general partner
By: X.X. Childs Associates, L.P., its
general partner
By: X.X. Childs Associates, Inc.
By: /s/ Xxxx Xxxxxx
---------------
Name:
Title:
24
Schedule 2.1(e)
Acceptable Underwriters:
Xxxxxxx Xxxxx & Co., Inc.
Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co.
Salomon Brothers Inc.
Xxxxxxxxx Xxxxxx & Xxxxxxxx
NationsBank Xxxxxxxxxx
Xxxxxxx, Xxxxx & Co.
BT Xxxx Xxxxx Incorporated
Credit Suisse First Boston
PaineWebber Incorporated
SCHEDULE A
Xxxx Family Trust
X.X. Childs Equity Partners, L.P.
Xxxxx X. Childs
Xxxx X. Childs
Xxxxxxx X. Childs
The Xxxxx Family Investment Trust
Xxxxxxx X. Xxxxx
Xxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxx
Xxxx X. Xxxx Revocable Living Trust
Xxxx X. Xxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxxxx X. Xxxxxxxxx
Xxxxxxxx X. Xxxxxxxxx and Xxxxx X. Xxxxxxxxx
Xxxxx Childs Xxxxxxx
Xxxxxxx X. Xxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx 1995 Irrevocable Trust
SGS 1995 Family Limited Partnership
SGS-III Family Limited Partnership
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxxxx Family Trust
Xxxxx Xxxxx
Xxxxxxx X. Xxxx
Xxxxxxxxx Xxxxxx
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx and Xxxxx X. Xxxxxx
Xxxxxx Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Xxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxx Xxxxx
Xxxxxx X. Xxxxx
Xxxx Xxxxxxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Xxxx X. Xxxxxxxx
Xxxxxxx Xxxxxxxx
Xxxxx X. August
Xxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxx Xxxx
Xxx Xxxxxx
Xxxxxxx Xxx
Xxxxxxx X. Xxxxxxx
Xxxxxxxx Xxxxxxx
Xxxxx Xxxxx
Xxxxxx Xxxxxx
Xxx Xxxxxx
Xxxxx Block
Xxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxxx
