AMENDMENT XX. 0
Xxxxxxxxx Xx. 0, dated as of June 1, 1998, by and among PLAYTEX
PRODUCTS, INC., a Delaware corporation (the "Company"), HWH CAPITAL PARTNERS,
L.P., a Delaware limited partnership ("HWH"), HWH VALENTINE PARTNERS, L.P., a
Delaware limited partnership, ("HWHV"), and HWH SURPLUS VALENTINE PARTNERS,
L.P., a Delaware limited partnership ("HWHSV" and, together with HWH and HWHV,
the "Purchasers"), to the Stock Purchase Agreement ("Agreement"), dated as of
March 17, 1995, among the Company and the Purchasers.
WHEREAS, there is a Stock Purchase Agreement dated as of June 1, 1998
(the "Purchase Agreement") between RCBA Playtex, L.P. ("Xxxx") and X.X. Childs
Equity Partners, L.P. ("Childs LP"), pursuant to which Xxxx has agreed to
purchase 6,000,000 shares of the Company's common stock, par value $.01 from
Childs LP; and
WHEREAS, the parties to the Agreement wish to amend the Agreement as
set forth herein.
NOW, THEREFORE, the Company and the Purchasers agree as follows:
1. EFFECTIVENESS. The Agreement, as amended, herein, shall be
effective upon (and only upon) the Closing (as defined in the Purchase
Agreement, and hereinafter referred to as the "Effective Date"). In the event
the Purchase Agreement is terminated, this Agreement shall be deemed not to have
been so amended and
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restated and shall remain in full force and effect in the form it existed
immediately prior to the date hereof.
2. AMENDMENT TO ARTICLE 6 OF THE AGREEMENT. Article 6 of the
Agreement shall be amended by adding at the end thereof the following:
6.12 PREEMPTIVE RIGHTS.
(a) From and after the Effective Date, except as
provided below, the Company shall not issue, sell or transfer or allow
any of its subsidiaries to issue, sell or transfer any Voting
Securities (the "Offered Securities") unless the Purchasers are
offered in writing the right to purchase, at the same price or on the
same terms proposed to be issued and sold, a portion of the Offered
Securities (the "Stated Percentage") equal to the product of (i) the
total number of Offered Securities multiplied by (ii) a fraction, the
numerator of which is the lesser of (x) 20,000,000 or (y) the number
of Voting Securities then owned by the Purchasers and the denominator
of which is the total number of the then outstanding shares of Common
Stock, computed on a fully diluted basis (the "Preemptive Rights").
If the Offered Securities are being issued in connection with the
issuance of any other securities, or incurrence of any debt, by the
Company ("Other Securities or Debt"), the Purchasers shall be required
to purchase their Stated Percentage of such Other Securities or Debt
in order to exercise their Preemptive Rights. The Purchasers shall
have the right, during the period specified
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in Section 6.12(b), to accept the offer for any or all of their
portion of the Offered Securities.
(b) Any Purchaser who does not deliver to the Company
written notice of acceptance of any offer made pursuant to
Section 6.12(a) within 10 business days after such Purchaser's receipt
of such offer shall be deemed to have waived its rights to purchase
the Offered Securities which are the subject of such offer (including,
if the Offered Securities include convertible securities, options, or
other rights to acquire securities, such other securities.)
(c) Section 6.12(a) shall not apply to (i) the grant
of options to purchase Voting Securities, or the issuance of shares of
Voting Securities, to employees of the Company or any of its
subsidiaries, (ii) shares of Voting Securities issuable upon exercise
of any option, warrant, convertible security or other rights to
purchase or subscribe for Voting Securities which, in each case, had
been issued in compliance with Section 6.12(a) or under Section
6.12(c)(i), (iii) securities issued pursuant to any stock split,
combination of stock, stock dividend or other similar stock
recapitalization, (iv) shares of Voting Securities issued pursuant to
an employee stock option or similar plan, (v) shares of Voting
Securities issued in connection with the acquisition of the stock or
assets or of any other Person (vi) shares of Voting Securities issued
pursuant to any registered public offering under
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the 1933 Act, or (vii) any issuance of Offered Securities occurring
after the Purchasers collectively own less than 11% of the outstanding
shares of Common Stock.
3. AMENDMENT TO ARTICLE 7 OF THE AGREEMENT: Article 7 of the
Agreement is deleted in the entirety and replaced with the following:
7. STANDSTILL
7.1 PROHIBITED ACTIVITIES. The Purchasers agree that during
the Standstill Period they will not, nor will they permit any of their
Affiliates to, directly or indirectly, acquire, offer to acquire, or agree
to acquire, by purchase any Voting Securities; PROVIDED, HOWEVER, that
nothing contained herein shall prohibit the Purchasers or any of their
Affiliates from acquiring any Voting Securities (i) as a result of a stock
split, stock dividend or similar recapitalization by the Company, the
consummation of which shall not result in a violation of Section 7.1 or
(ii) so long as the Purchasers and their Affiliates beneficially own
(within the meaning of Rule 13d-3 of the Exchange Act), in the aggregate,
no more than 22,000,000 shares of Voting Securities (as adjusted for stock
splits, combination of stock, stock dividends or similar recapitalization
by the Company) immediately following such acquisition of Voting
Securities; PROVIDED, HOWEVER, that nothing in this Section 7.1 shall
prohibit the Purchasers from acquiring any Voting Securities in accordance
with the provisions of Section 6.12. Notwithstanding the foregoing, if any
breach of Section 7.1 caused by an acquisition of a non-material amount of
Voting Securities shall
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have been cured by disposition of Voting Securities within 30 days after
the Purchasers become aware of such breach, then no breach of this
Section 7.1 shall be deemed to have occurred.
7.2 STANDSTILL PERIOD. As used herein, the term "Standstill
Period" shall mean the period from the date that the Closing occurs until
the earliest to occur of (each a "Termination Event"):
(A) the date that is the fifth anniversary of the
Effective Date;
(B) the date on which the Purchasers and their
Affiliates cease to beneficially own (within the meaning of Rule 13d-3
of the Exchange Act), in the aggregate, at least 10% of the
outstanding Voting Securities;
(C) a Change of Control;
(D) the sale of substantially all of the Common Stock
of the Company or all or substantially all of the assets of the
Company or its Subsidiaries, taken as a whole, through a stock
purchase agreement, merger or other business combination not in
violation of Section 6.10;
(E) a Post-Closing Event;
(F) a Bankruptcy Event; or
(G) default in the payment of principal or interest
when due (whether at maturity, upon acceleration or otherwise) after
the
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expiration of any grace periods applicable thereto with respect to
indebtedness of the Company or any of its Subsidiaries for money
borrowed having an aggregate outstanding principal amount in excess of
$10,000,000 or more (unless at the time thereof the Company shall have
unrestricted cash, cash equivalents or commitments under existing debt
instruments available to make such payment).
4. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original and both of which together shall
be deemed to be one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
PLAYTEX PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
HWH CAPITAL PARTNERS, L.P.
By: HWH, L.P., its general partner
By: HWH Incorporated, its
general partner
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title:
HWH VALENTINE PARTNERS, L.P.
By: HWH Valentine, L.P., its
general partner
By: HWH Valentine Incorporated, its
general partner
By: /s/ Xxxxxxx X. Xxxxx
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Name:
Title:
HWH SURPLUS VALENTINE PARTNERS, L.P.
By: HWH Valentine, L.P., its
general partner
By: HWH Valentine Incorporated, its
general partner
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title:
