Exhibit 10.6
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FIRST AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
between
PLAYTEX PRODUCTS, INC.
and
X.X. CHILDS EQUITY PARTNERS, L.P.
_______________________________________
Dated as of June 1, 1998
_______________________________________
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TABLE OF CONTENTS
Page
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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
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request of any such holder (a "Requesting Holder") (which request (i) should
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
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), 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
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Other Registration Rights Agreement, or (y) if such registration is not being so
effected, all securities of the Company to be sold for its 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
States
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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 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;
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(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.
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
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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) 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
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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 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
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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 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
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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 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
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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:
"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
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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.
"HWH AGREEMENT" 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,
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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 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.
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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 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.
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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.
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.
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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
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.
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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:
-------------------------------------
Name:
Title:
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:
----------------------------------
Name:
Title:
