Exhibit 2.3
STOCKHOLDERS AGREEMENT
STOCKHOLDERS 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").
RECITALS
WHEREAS, the Company and the Principal Stockholder are, together with
PCG Acquisition Corp., a Delaware corporation and wholly owned subsidiary of the
Company ("Subsidiary"), and Personal Care Holdings Inc., a Delaware corporation
("Target"), parties to a Merger Agreement, dated as of December 22, 1997 (as
amended, the "Merger Agreement"), pursuant to which, on the Effective Date,
Subsidiary will be merged with and into Target (the "Merger"), whereupon
Subsidiary shall continue as the surviving corporation;
WHEREAS, after the Effective Date, the Childs Holders will hold, in
aggregate, 9,257,375 shares (the "Shares") of common stock of the Company, par
value $.01 ("Company Common Stock"); and
WHEREAS, as an inducement to and a condition of the Company entering
into the Merger Agreement, the Company has required that the Childs Holders, and
the Childs Holders have agreed, to execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements set
forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. (a) The following terms, whenever used herein,
shall have the following meanings for all purposes of this Agreement.
"1933 Act" means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
An "Affiliate" of, or a person "affiliated" with, a specified Person,
means a Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Person
specified. The term "control" (including the terms "controlling," "controlled
by" and "under common control with") means the possession, direct or indirect,
of the power to direct or cause the direction of the management and policies of
a person, whether through the ownership of voting securities, by contract, or
otherwise. No owner of a limited partnership interest of the Principal
Stockholder shall be deemed an affiliate of, or a Person "affiliated" with, the
Principal Stockholder solely by reason of such ownership.
"By-laws" means the by-laws of the Company.
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"By-laws Amendment" means the proposed amendment to the By-laws in the
form attached as Exhibit A hereto.
"Transfer" means, in relation to any share of Company Common Stock,
any sale, assignment, transfer or disposition by gift or otherwise, including
without limitation, any distribution in liquidation or otherwise by a
corporation or partnership; provided, however, that "Transfer" does not mean,
with respect to any such share of Company Common Stock, any pledge, mortgage,
hypothecation or grant of a security interest therein or a transfer thereof
through the granting of participation rights.
"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.
(b) Capitalized terms not otherwise defined herein shall have
the meanings given such terms in the Merger Agreement.
ARTICLE II
DIRECTORS
2.1 Increase in the Size of the Board of Directors. The Company
hereby agrees that it will use its best efforts to (i) increase the size of its
Board of Directors (the "Board") by two persons effective on the date hereof,
and (ii) cause one
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of the vacancies thus created to be filled by Xxxx X. Childs in accordance with
the By-laws as in effect on the date hereof.
2.2 Nomination of Target Director. The Company hereby agrees that
for so long as the Principal Stockholder owns, in the aggregate, at least
4,628,688 Shares, as adjusted for stock splits, stock dividends, and
reclassifications, it will use its best efforts to ensure that, following any
vote for the election of directors of the Company at a stockholders' meeting or
otherwise, one director (the "Target Director") designated by the Principal
Stockholder is a member of the Board, provided, that the Principal Stockholder
shall ensure that the proposed Target Director is nominated in accordance with
the By-Laws.
2.3 Stockholder Meeting; Proxy Material; By-Laws Amendment. The
Company shall cause either (a) a meeting of its stockholders to be duly called
and held as soon as practicable following the Effective Time, subject to the
Company's right to adjourn such meeting at any time or from time to time if in
the Board's good faith judgment such adjournment is desirable, or (b) consents
of its stockholders to be solicited, in accordance with the By-laws and the 1934
Act, for the purpose of voting for the adoption of the By-Laws Amendment (the
"Stockholder Meeting"). In connection with the Stockholder Meeting, the
Company: (A) shall promptly prepare and file with the Securities and Exchange
Commission (the "SEC") in accordance with the 1934 Act an information statement
relating to the By-Laws Amendment (the "Information Statement"), use all
reasonable efforts to have the Information Statement and/or any amendment or
supplement thereto cleared by the SEC and thereafter mail to
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its stockholders as promptly as practicable following such clearance the
Information Statement; (B) shall use its reasonable best efforts to obtain the
necessary approvals by its stockholders for the adoption of the By-Laws
Amendment (unless the Board shall have determined in good faith, based upon
advice of outside counsel, that not taking such actions is necessary for the
Board to comply with its fiduciary duties under applicable law); and (C) shall
otherwise comply with all legal requirements applicable to the Stockholders
Meeting. The Company shall make available to the Principal Stockholder prior to
the filing thereof with the SEC copies of the preliminary Information Statement
and any amendments or supplements thereto and shall make any changes therein
reasonably requested by the Principal Stockholder insofar as such changes relate
to any matters relating to the Principal Stockholder.
ARTICLE III
TRANSFERS OF SECURITIES
3.1 Restrictions on Transfer of Company Common Stock. The Principal
Stockholder agrees that, prior to the third anniversary of the Effective Date,
it shall not Transfer any of the Shares, by distribution or otherwise, to any of
its shareholders, partners, members or owners.
3.2 Transfers Subject to Compliance with Securities Laws. No Shares
may be Transferred by the Childs Holders (other than pursuant to an effective
registration Statement under the 1933 Act) unless such Childs Holder first
delivers to
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the Company an opinion of counsel, reasonably satisfactory to the Company, to
the effect that such Transfer is not required to be registered under the 1933
Act.
3.3 Certificates for Shares To Bear Legends. (A) So long as
the Shares are not sold pursuant to an effective registration statement under
the 1933 Act or pursuant to Rule 144 under the 1933 Act, the Shares shall be
subject to a stop-transfer order and the certificates therefor shall bear the
following legend by which each holder thereof shall be bound:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933, OR (ii) AN APPLICABLE EXEMPTION FROM
REGISTRATION THEREUNDER."
(B) So long as the Shares are subject to the terms and
conditions of Section 3.1, the Shares shall be subject to a stop-transfer order
and the certificates shall bear the following legend:
"THE SALE OR TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS
FURTHER SUBJECT TO RESTRICTIONS WHICH ARE CONTAINED IN A STOCKHOLDERS
AGREEMENT DATED AS OF JANUARY 28, 1998 A COPY OF WHICH IS ON FILE WITH
THE ISSUER OF THESE SHARES AND WILL BE FURNISHED BY THE ISSUER OF
THESE SHARES TO THE STOCKHOLDER ON REQUEST AND WITHOUT CHARGE."
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(C) After the termination of the legend requirements of
either Section 3.3(A) or Section 3.3(B), the Company shall, upon the written
request of the holders of the Shares and receipt by the Company of evidence
reasonably satisfactory to it that such requirement has terminated (including,
with respect to the legend required by the Section 3.3(A), a written opinion of
outside counsel), issue certificates for such Shares that do not bear all or
part of the legend described in Section 3.3(A) or Section 3.3(B), as the case
may be.
ARTICLE IV
RESTRICTIONS ON PURCHASE
4.1 Restricted Purchases. Each Childs Holder agrees that it will
not, nor will it permit any of its Affiliates to, directly or indirectly, take
any action, including, without limitation, to acquire, offer to acquire, or
agree to acquire, by purchase or otherwise any Company Common Stock, where such
action or acquisition would, in the reasonable opinion of the Company, cause (A)
a "Change of Control" under, and as defined in, (x) the Indenture dated as of
February 2, 1994 among the Company, certain subsidiaries of the Company, as
Guarantors, and IBJ Xxxxxxxx Bank & Trust Company, as Trustee (the "1994
Indenture"), (y) the Indenture dated as of July 21, 1997 among the Company,
certain subsidiaries of the Company, as Guarantors, and Marine Midland Bank, as
Trustee (the "1997 Indenture" and, together with the 1994 Indenture, the
"Indentures") or (z) any other presently existing or future agreement of the
Company (a copy of which has been delivered to the Childs Holders with the
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relevant provisions clearly identified) where such action or acquisition would
have a similar effect (any such agreement, a "Noticed Agreement"), or (B) a
default under the provisions of the Indentures or any Noticed Agreement, to the
extent that the relevant Childs Holder received a copy of such provisions prior
to taking any such action or making any such acquisition.
ARTICLE V
TERMINATION
5.1 Termination. This Agreement shall terminate ten years from the
date hereof.
ARTICLE VI
MISCELLANEOUS
6.1 Amendment. This Agreement may be altered or amended only with
the consent of the Company and the Childs Holders Representative.
6.2 Specific Performance. The parties recognize that the obligations
imposed on them in this Agreement are special, unique and of extraordinary
character, and that in the event of breach by any party, damages will be an
insufficient remedy; consequently, it is agreed that the parties hereto may have
specific performance (in addition to damages) as a remedy for the enforcement
hereof, without proving damages.
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6.3 Assignment. Except as other provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors of the parties hereto; provided, however, that this
Agreement may not be assigned by any party without the prior written consent of
the Company and the Childs Holders Representative except that the Company may
assign its rights herein to any successor to all or substantially all its assets
(by merger or otherwise). Any assignment of rights hereunder shall be coupled
with the assumption by the assignee of all of the obligations of the assignor
hereunder and shall thereby relieve such assignor of such obligations. Any
purported assignment made in violation of this Section 6.3 shall be void and of
no force and effect.
6.4 Appointment of Representative. Each Childs Holder hereby
authorizes and appoints Xxxx X. Childs (in such capacity, the "Childs Holders
Representative") as its representative and agent for purposes of accepting and
delivering notices and taking actions hereunder on behalf of each Childs Holder.
In the event that Xxxx X. Childs is unable or unwilling to be the Childs Holders
Representative, then the Childs Holders holding at least a majority of the
Shares at such time (the "Majority Childs Holders") shall appoint a successor
Childs Holders Representative and, until such successor is appointed, all
actions to be taken by the Childs Holders Representative hereunder shall be
taken by the Majority Childs Holders.
6.5 Notices. Any and all notices, designations, consents, offers,
acceptances, or any other communication provided for herein shall be given in
writing
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and deemed received when delivered by overnight courier or hand delivery, or
when sent by facsimile transmission which shall be addressed, or sent, as
follows:
If to the Company, to it at:
Playtex Products, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Chief Financial Officer
Telecopier: (000) 000-0000
With a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
If to the Childs Holders Representative to him at:
X.X. Childs Equity Partners, L.P.
c/o X.X. Childs Associates, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Childs
Telecopier: (000) 000-0000
With a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxxx, Esq.
Telecopier: (000) 000-0000
or, in each case, such other address as the Principal Stockholder
shall specify to the Company and the other parties hereto.
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6.6 Counterparts. This Agreement may be executed in one or more
counterparts and each counterpart shall be deemed to be an original and which
counterparts together shall constitute one and the same agreement of the parties
hereto.
6.7 Section Headings. Headings contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit or extend
the scope or intent of this Agreement or any provisions hereof.
6.8 Choice of Law. This Agreement shall be governed by the laws of
the State of New York, without regard to principles of conflicts of laws.
6.9 Entire Agreement. This Agreement, the Merger Agreement and the
Registration Rights Agreement contain the entire understanding of the parties
hereto respecting the subject matter hereof and thereof and supersede all prior
agreements, discussions, and understandings with respect to such subject
matters.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
PLAYTEX PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
and Chief Financial Officer
X.X. CHILDS EQUITY PARTNERS, L.P.
By: X.X. CHILDS ADVISORS, L.P., its General Partner
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By: X.X. CHILDS ASSOCIATES, L.P., its General Partner
By: X.X. CHILDS ASSOCIATES, INC.
By: /s/ Xxxx Xxxxxx
------------------------------
Name:
Title:
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FORM OF AMENDMENT TO
THE BY-LAWS OF THE COMPANY
a. The existing Section 15(b) in Article III of the By-laws shall be
redesignated Section 15(b)(A) and a Section 15(b)(B) shall be added to read as
follows:
"(B) From the Effective Date until the earlier of (1) the
date upon which the Principal Stockholder holds, in the aggregate, less
than 4,628,688 shares of common stock of the Company or (2) the tenth
anniversary of the Effective Date, one of the Non-Purchaser Directors shall
be the Target Director. The "Effective Date" shall have the meaning given
that term in the Merger Agreement. The "Merger Agreement" means the Merger
Agreement, dated as of December 22, 1997 among the Corporation, PCG
Acquisition Corp., Personal Care Holdings, Inc. and X.X. Childs Equity
Partners, L.P. (the "Principal Stockholder"). The "Target Director" means
the Director designated by the Principal Stockholder."
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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
