Exhibit 10.29.2
[EXECUTION COPY]
FIRST AMENDMENT AND ACKNOWLEDGMENT
TO SENIOR MANAGEMENT AGREEMENT
This First Amendment and Acknowledgment to Senior Management Agreement
(this "AMENDMENT"), dated as of April 6, 2004, is made to the Senior Management
Agreement (the "AGREEMENT"), dated as of March 5, 2004, by and among
Medtech/Denorex, LLC, a Delaware limited liability company and now known as
Prestige International Holdings, LLC (the "COMPANY"), Medtech/Denorex
Management, Inc., a Delaware corporation and now known as Prestige Brands, Inc.
("EMPLOYER"), and Xxxxxxx Xxxxxxx ("EXECUTIVE"). Each capitalized term used
herein but not otherwise defined shall have the meaning ascribed to such term in
the Agreement.
WHEREAS, concurrently herewith, the Company is indirectly acquiring all of
the outstanding shares of capital stock of Xxxxxx Bay Holdings, Inc., a Virginia
corporation and ultimate parent of Prestige Brands International, Inc. (the
"ACQUISITION"); and
WHEREAS, in connection with the Acquisition, and in order to better reflect
the intent of the undersigned, the undersigned desire to amend certain terms of
the Agreement, make certain acknowledgments with respect to the Agreement and
reaffirm the other term and make provisions of the Agreement.
NOW, THEREFORE, effective immediately prior to the consummation of the
Acquisition (except as otherwise provided in Section 11 below), the undersigned,
intending to be legally bound, hereby agree as follows:
1. Each reference, if any, in the Agreement to any of the entities identified
below shall be deemed a reference to such entity's new name, as indicated:
(a) Medtech/Denorex, LLC n/k/a Prestige International Holdings, LLC;
(b) SNS Household Holdings, Inc. n/k/a Prestige Household Holdings, Inc.;
(c) SNS Household Brands, Inc. n/k/a Prestige Household Brands, Inc.;
(d) Medtech Acquisition Holdings, Inc. n/k/a Prestige Products Holdings,
Inc.;
(e) Medtech Acquisition, Inc. n/k/a Prestige Brands, Inc.;
(f) Medtech/Denorex Management, Inc. n/k/a Prestige Brands, Inc., as
successor by merger;
(g) Denorex Acquisition Holdings, Inc. n/k/a Prestige Personal Care
Holdings, Inc.; and
(h) Denorex Acquisition, Inc. n/k/a Prestige Personal Care, Inc.
2. The definitions for each of the following defined terms in the Agreement
shall be deleted in their entirety and amended and restated as follows:
(a) "CREDIT AGREEMENT" means the Credit Agreement, dated as of April 6,
2004, among Employer, Prestige Brands International, LLC, a Delaware
limited liability company, the lenders and issuers party thereto,
Citicorp North America, Inc., as administrative agent and Tranche C
Agent (as defined therein), Bank of America, N.A., as syndication
agent for the lenders and issuers, Xxxxxxx Xxxxx Capital, a division
of Xxxxxxx Xxxxx Business Financial Services Inc., as documentation
agent for the lenders and issuers, and the other parties named
therein, as the same may be amended, supplemented or otherwise
modified from time to time, at any renewal, extension, refunding,
restructuring, replacement or refinancing thereof (whether with the
original agent or lenders or another agent or agents or other lenders
and whether provided under the original Credit Agreement or any other
credit agreement).
(b) "DEBT" means "Indebtedness" as such term is defined in the Credit
Agreement.
(c) "EBITDA" means "Adjusted EBITDA" as such term is defined in the Credit
Agreement.
(d) "LLC AGREEMENT" means the Third Amended and Restated Limited Liability
Company Agreement of the Company, dated as of April 6, 2004, as
amended from time to time pursuant to its terms.
(e) "MAXIMUM NUMBER OF REPURCHASABLE STANDARD CARRIED COMMON UNITS" means,
with respect to any Follow-on Purchaser Equity Investment, the product
of the Purchaser Equity Fund Dilution Percentage MULTIPLIED BY the
number of Standard Carried Common Units owned by Executive immediately
prior to the Follow-on Purchaser Equity Investment.
3. The following defined terms in the Agreement shall be deleted in their
entirety:
(a) Maximum Percentage of Repurchaseable Standard Carried Common Units;
(b) Purchaser Mezzanine Fund Dilution Factor;
(c) Purchaser Mezzanine Fund Dilution Percentage;
(d) Equity Investors; and
(e) Investors
4. The following defined terms (and related definitions) shall be added to the
Agreement:
(a) "COMET" means The Comet Products Corporation, a Delaware corporation.
(b) "PRESTIGE" means Prestige Brands International, Inc. a Virginia
corporation.
5. Each reference to "Investor" or "Equity Investor" in the Agreement shall
instead be deemed a reference to "Purchaser"; PROVIDED, HOWEVER, that each
reference to "Investor"
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in Sections 3(b)(v) and (vi) of the Agreement shall instead be deemed a
reference to "Participating Purchaser".
6. Section 3(b)(ii) of the Agreement shall be deleted in its entirety and
amended and restated as follows:
(ii) Subject to the terms and conditions set forth in this
SECTION 3(b), in the event of any Follow-on Purchaser Equity Investment,
the Purchasers who participated in such Follow-on Purchaser Equity
Investment (the "PARTICIPATING PURCHASERS") will have the right to
repurchase (the "DILUTION REPURCHASE OPTION") from Executive and his
transferees (including for this purpose the Company and, with respect to
any Standard Carried Common Units acquired other than pursuant to the
Dilution Repurchase Option, the Purchasers) all or any portion of
Executive's Maximum Number of Repurchasable Standard Carried Common Units
as of such Follow-on Purchaser Equity Investment.
7. Section 3(b)(iv) of the Agreement shall be deleted in its entirety and
amended and restated as follows:
(iv) As soon as practicable after the Company has determined the
Maximum Number of Repurchasable Standard Carried Common Units in respect of
any Follow-on Purchaser Equity Investment, the Company shall give written
notice (the "DILUTION REPURCHASE OPTION NOTICE") to the Participating
Purchasers setting forth the Maximum Number of Repurchasable Standard
Carried Common Units and the purchase price therefor. The Participating
Purchasers may elect to purchase any or all of the Maximum Number of
Repurchasable Standard Carried Common Units by giving written notice to the
Company within 30 days after the Dilution Repurchase Option Notice has been
given by the Company. If the Participating Purchasers elect to purchase an
aggregate number greater than the Maximum Number of Repurchasable Standard
Carried Common Units, the Maximum Number of Repurchasable Standard Carried
Common Units shall be allocated among the Participating Purchasers on a pro
rata basis consistent with each such Participating Purchaser's portion of
such Follow-on Purchaser Equity Investment Amount. As soon as practicable,
and in any event within 10 days after the expiration of the 30-day period
set forth above, the Company shall notify each holder of the Standard
Carried Common Units as to the number of units being purchased from such
holder by the Participating Purchasers, the aggregate consideration to be
paid for such units and the time and place for the closing of the
transaction (the "DILUTION REPURCHASE NOTICE"). At such time, the Company
shall also deliver written notice to each Participating Purchaser setting
forth the number of units such Participating Purchaser is entitled to
purchase, the aggregate purchase price and the time and place of the
closing of the transaction.
8. In Section 10(a) of the Agreement, the phrase "the Company, Employer,
Medtech, Denorex, Spic and Span" shall be deleted in its entirety and
amended and replaced, in each case in which it appears, with the phrase
"the Company, Employer, Medtech, Denorex, Spic and Span, Comet, Prestige".
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9. EXHIBIT B to the Agreement shall be replaced and superseded in its entirety
by the form of EXHIBIT B attached hereto.
10. The parties hereto agree that the defined term "Substantial
Underperformance" and the references thereto in the Agreement shall be
disregarded until July 1, 2004, at which time such defined term and the
references thereto shall be reinstated in the Agreement with full force and
effect.
11. Immediately following the consummation of the Acquisition and the
transactions related thereto, the definitions for each of the following
defined terms in the Agreement shall be deleted in their entirety and
amended and restated as follows:
(a) "EQUITY EQUIVALENTS" means, at any time, without duplication with any
other Equity Securities or Equity Equivalents, any rights, warrants,
options, convertible debt or equity securities, exchangeable debt or
equity securities, or other rights exercisable for or convertible or
exchangeable into, directly or indirectly, Equity Securities or
securities convertible or exchangeable into Equity Securities, whether
at the time of issuance or upon the passage of time or the occurrence
of a future event; PROVIDED THAT, (i) any of the foregoing shall only
be considered an Equity Equivalent to the extent (and only to the
extent) that it is convertible or exchangeable into an Equity Security
at a price below the then Fair Market Value of such Equity Security
and (ii) in no event shall the Senior Preferred Units (as defined in
the LLC Agreement) be deemed Equity Equivalents hereunder
(b) "EQUITY SECURITIES" means all Class A Preferred Units, Class B
Preferred Units, Common Units and other Units (as defined in the LLC
Agreement) or other equity interests in the Company (including other
classes or series thereof having different rights) that are purchased
simultaneously with Common Units as a strip of securities as may be
authorized for issuance by the Company from time to time. Equity
Securities will also include equity of the Company (or a corporate
successor to the Company or a Subsidiary of the Company) issued with
respect to Equity Securities (i) by way of a unit split, unit
dividend, conversion, or other recapitalization, (ii) by way of
reorganization or recapitalization of the Company in connection with
the incorporation of a corporate successor in accordance with Section
15.7 of the LLC Agreement, or (iii) by way of a distribution of
securities of a Subsidiary of the Company to the members of the
Company following or with respect to a Subsidiary Public Offering.
12. Except for the changes noted above, the Agreement shall remain in full
force and effect and any dispute under this Amendment shall be resolved in
accordance with the terms of the Agreement, including, but not limited to,
Section 13(h) thereof (Choice of Law).
13. This Amendment may be executed in any number of counterparts (including by
means of facsimiled signature pages), which shall together constitute one
and the same instrument.
* * * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
and Acknowledgment to Senior Management Agreement on the date first written
above.
PRESTIGE INTERNATIONAL
HOLDINGS, LLC
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
---------------------------------
Title: Chief Financial Officer
---------------------------------
PRESTIGE BRANDS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
---------------------------------
Title: Vice President
---------------------------------
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XXXXXXX XXXXXXX
Accepted and agreed to:
GTCR FUND VIII, L.P.
By: GTCR Partners VIII, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx XX, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Its: Principal
GTCR FUND VIII/B, L.P.
By: GTCR Partners VIII, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx XX, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Its: Principal
[PRESTIGE INTERNATIONAL HOLDINGS, LLC: SIGNATURE PAGE TO SECOND AMENDMENT AND
ACKNOWLEDGMENT TO SENIOR MANAGEMENT AGREEMENT]
GTCR CO-INVEST II, L.P.
By: GTCR Xxxxxx Xxxxxx XX, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Its: Principal
GTCR CAPITAL PARTNERS, L.P.
By: GTCR Mezzanine Partners, L.P.
Its: General Partner
By: GTCR Partners VI, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Its: Principal
TCW/CRESCENT MEZZANINE PARTNERS III, L.P.
TCW/CRESCENT MEZZANINE TRUST III
TCW/CRESCENT MEZZANINE PARTNERS III
NETHERLANDS, L.P.
By: TCW/Crescent Mezzanine
Management III, L.L.C.,
its Investment Manager
By: TCW Asset Management Company,
its Sub-Advisor
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: Managing Director
[PRESTIGE INTERNATIONAL HOLDINGS, LLC: SIGNATURE PAGE TO FIRST AMENDMENT AND
ACKNOWLEDGMENT TO SENIOR MANAGEMENT AGREEMENT]
EXHIBIT B
EBITDA
FISCAL YEAR ANNUAL EBITDA
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2004 $ 102 million
2005 $ 102 million
2006 $ 102 million
2007 $ 102 million
2008 $ 102 million
