EXECUTION COPY
FIRST AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
between
PLAYTEX PRODUCTS, INC.
and
X.X. CHILDS EQUITY PARTNERS, L.P.
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Dated as of June 1, 1998
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TABLE OF CONTENTS
Page
1. Background...........................................................1
2. Registration Under Securities Act....................................1
2.1 Intentionally Omitted.......................................1
2.2 Incidental Registration.....................................1
2.3 Registration Procedures.....................................3
2.4 Underwritten Offerings......................................6
2.5 Preparation; Reasonable Investigation.......................6
2.6 Intentionally Omitted.......................................7
2.7 Indemnification.............................................7
3. Definitions.........................................................10
4. Rule 144 and Rule 144A..............................................12
5. Amendments and Waivers..............................................12
6. Nominees for Beneficial Owners......................................12
7. Appointment of Representative.......................................13
8. Notices.............................................................13
9. Assignment..........................................................13
10. Calculation of Percentage Interests in Registrable Securities.......14
11. No Inconsistent Agreements..........................................14
12. Remedies............................................................14
13. Severability........................................................14
14. Entire Agreement....................................................14
15. Headings............................................................14
16. Governing Law.......................................................14
17. Counterparts........................................................15
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FIRST AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the
"Agreement"), dated as of January 28, 1998, as amended and restated as of June
1, 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
thereto (collectively with the Principal Stockholder, the "Childs Holders").
The parties hereby agree as follows:
1. Background.
(a) The Principal Stockholder is a party to
a Stock Purchase Agreement dated as of June 1, 1998 (the "Purchase Agreement")
between the Principal Stockholder and RCBA Playtex, L.P. (the "Buyer"), pursuant
to which the Principal Stockholder has agreed to sell 6,000,000 shares of Common
Stock, par value $.01 ("Common Stock") to the Buyer. The shares of Common Stock
received by the Childs Holders in the merger of PCG Acquisition Corp. and
Personal Care Holdings, Inc. which are held by the Childs Holders immediately
after the Closing (as defined in the Purchase Agreement) (the "Closing") shall
be referred to in this Agreement as the "Shares."
(b) This First Amended and Restated
Agreement, as amended and restated herein, shall become effective upon (and only
upon) the Closing. In the event the Purchase Agreement is terminated, the
Agreement shall be deemed not to have been so amended and restated and shall
remain in full force and effect in the form it existed immediately prior to its
amendment and restatement on the date hereof.
2. Registration Under Securities Act.
2.1 Intentionally Omitted.
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 and any Securityholder is requesting
Registrable Securities (as defined in the Other Registration Rights Agreements,
referred to herein as "Third Party Securities") be included in such
registration, the Company 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 (i) should
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specify the Registrable Securities intended to be disposed of by such Requesting
Holder and (ii) when aggregated with all other requests from Requesting Holders
under this Agreement, must include at least 250,000 shares of Registrable
Securities (including at least 50,000 shares of Registrable Securities owned by
the Principal Stockholder or any transferee thereof pursuant to Section 9
hereof)), 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 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 promptly 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 connec
tion 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), 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.
(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
the Third Party Securities requested to be included in such registration would
materially adversely affect such offering, and the Company has so advised the
Requesting Holders, 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, first, (x) if such registration is being
effected pursuant to the request of Securityholders under the demand
registration provisions of one of the Other Registration Rights Agreements, all
Third Party Securities so requested by such Securityholders under such Other
Registration Rights Agreement, or (y) if such registration is not being so
effected, all securities of the Company to be sold for its
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own account, and second, such Registrable Securities requested to be included in
such registration pursuant to this Agreement and such Third Party Securities
requested to be included in such registration pursuant to the provisions of the
Other Registration Rights Agreements comparable to this Section 2.2, pro rata
(based on the number of Registrable Securities requested to be included therein
by each Requesting Holder and the number of Third Party Securities requested to
be included therein by each Securityholder) among such Requesting Holders and
the Securityholders and third, if clause (x) of this Section 2.2(b) applies, all
securities proposed by the Company to be sold for its own account.
(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 Section 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) Intentionally Omitted;
(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 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
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Xxxxxx xx xxx Xxxxxx Xxxxxx xx Xxxxxxx 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 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
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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.
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
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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) Intentionally Omitted.
(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.
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2.6 Intentionally Omitted.
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 2.2, 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 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
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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 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 Sec tion 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
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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 settle ment 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 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)
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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:
"Xxxx Agreement" means the Registration Rights Agreement dated
as of June 1, 1998, between RCBA PLAYTEX, L.P. and the Company.
"Commission" means the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
"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.
"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.
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"XXX Xxxxxxxxx" means the Registration Rights Agreement dated
as of March 17, 1995, as amended, among the Company, HWH Capital Partners, L.P.,
HWH Valentine Partners, L.P., and HWH Surplus Valentine Partners, L.P.
"Other Registration Rights Agreements" means each of the Xxxx
Agreement and the HWH Agreement.
"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.
"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 may be sold
as permitted by Rule 144 (or any successor provision) under the Securities Act
without reference, for this purpose, to any volume limitation thereunder, (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 Principal Stockholder 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 Requesting Holders (selected by Requesting 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), 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
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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.
"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 Xxxx Agreement, respectively, in each case other than the Company.
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 or
terminated 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 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
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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.
9. Assignment. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and (i) with respect
to the Company only, its respective successors and permitted assigns and (ii)
with respect to any Childs Holder, only if such Childs Holder is transferring at
least 250,000 shares of Registrable Securities to such assignee and, in such
case, subject to the provisions with respect to the minimum amount of
Registrable Securities required in order to be entitled to certain rights or
take certain actions contained herein, its assigns.
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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 out standing 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), 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 and the Merger Agreement
(including the exhibits and schedules thereto) supersede all prior agreements
and understandings between the parties with respect to such subject matter.
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
15
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.
[Remainder of page intentionally left blank]
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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: Chief Financial Officer
X.X. CHILDS EQUITY PARTNERS, L.P.,
on behalf of itself and all Childs Holders
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 X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
