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REGISTRATION RIGHTS AGREEMENT
between
PLAYTEX PRODUCTS, INC.,
and
MONDIAL INDUSTRIES L.P.
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Dated as of January 29, 1999
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TABLE OF CONTENTS
Page
1. Background............................................................1
2. Registration Under Securities Act, etc................................1
2.1 Incidental Registration......................................1
2.2 Registration Procedures......................................2
2.3 Underwritten Offerings.......................................5
2.4 Preparation; Reasonable Investigation........................6
2.5 Indemnification..............................................6
3. Definitions..........................................................10
4. Rule 144.............................................................12
5. Amendments and Waivers...............................................12
6. Nominees for Beneficial Owners.......................................13
7. Notices..............................................................13
8. Assignment...........................................................14
9. Calculation of Percentage Interests in Registrable Securities........14
10. Remedies.............................................................14
11. Severability.........................................................14
12. Entire Agreement.....................................................14
13. Headings.............................................................14
14. Governing Law........................................................14
15. Counterparts.........................................................15
16. No Inconsistent Agreements...........................................15
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REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of January
29, 1999, between PLAYTEX PRODUCTS, INC., a Delaware corporation (the
"Company"), and MONDIAL INDUSTRIES LIMITED PARTNERSHIP, a Wisconsin limited
partnership (the "Seller").
The parties hereby agree as follows:
1. Background. Pursuant to an Asset Purchase Agreement, dated as of
January 6, 1999, among the Seller and the Company (the "Purchase Agreement"),
the Company agrees with the Seller, (i) for its benefit and (ii) for the benefit
of the holders from time to time of the Notes (including the Seller) and the
holders from time to time of the Common Stock issued upon conversion of the
Notes to provide the registration rights set forth in this Agreement. The
execution of this Agreement is a condition precedent to the obligation of the
Seller to enter into and complete the closing under the Purchase Agreement. As
partial consideration for the purchase of the assets of the Seller, the Company
will have delivered to the Seller at the Closing (as defined in the Purchase
Agreement) an aggregate of $50,000,000 principal amount of Notes of the Company.
The Notes are convertible into such number of shares (the "Shares") of Common
Stock as determined in accordance with the terms set forth in the Indenture.
Capitalized terms used herein but not otherwise defined shall have the meanings
given them in Section 3.
2. Registration Under Securities Act, etc.
2.1 Incidental Registration.
(a) Right to Include Registrable Securities. If at
any time following the first anniversary of the closing of the transactions
contemplated by the Purchase Agreement, the Company 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 or another similar form under the Securities Act which would
not permit the inclusion of Registrable Securities, whether or not for sale for
its own account, it 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 2.1. Upon the written request of any
such holder (a "Requesting Holder") 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) (which request shall specify the Registrable Securities
intended to be disposed of by such Requesting Holder), 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,
immediately upon notification to the Company from the managing
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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 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 in
writing 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 own account, 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 2.1, 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 2.1(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 2.1.
2.2 Registration Procedures. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities
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under the Securities Act as provided in Section 2.1, the Company will, as
expeditiously as possible:
(i) prepare and (within 45 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 2.1(a), Registrable Securities) at
any time prior to the effective date of the Registration Statement
relating thereto;
(ii) 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;
(iii) 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 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 or become subject to taxation in any
jurisdiction wherein it would not but for the requirements of this
subdivision (iii) be obligated to be so qualified or to consent to
general service of process in any such jurisdiction;
(iv) 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;
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(v) 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;
(vi) 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;
(vii) 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 day of the
first full fiscal quarter of the Company after the effective date of
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such Registration Statement, which earnings statement shall satisfy the
provi sions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder;
(viii) 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
(ix) 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 (i) such information
regarding such seller and the distribution of such securities as the Company may
from time to time reasonably request in writing and (ii) if requested by the
Company an executed custody agreement and power of attorney in form and
substance reasonably satisfactory to the Company with respect to the Registrable
Securities to be registered pursuant to this Agreement.
Each holder of Registrable Securities agrees 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 2.2, 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 2.2 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.
2.3 Underwritten Offerings.
(a) Incidental Underwritten Offerings. If the Company
proposes to register any of its securities under the Securities Act as
contemplated by Section 2.1 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
2.1(b). The holders of Registrable Securities to be distributed by such
underwriters shall be parties to the underwriting
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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.
2.4 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 holders of Registrable
Securities to be registered under such Registration Statement, their
underwriters, if any, and their respective counsel the opportunity prior to
filing to review 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.
2.5 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 2.1, 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
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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 (i) 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 or (ii) if the seller received written
notice from the Company of the existence of such an untrue statement or such an
omission and the seller continued to dispose of Registrable Securities prior to
the time of the receipt of either (a) an amended or supplemented prospectus or
prospectus supplement that completely corrected the untrue statement or the
omission or (b) a notice from the Company that the use of the existing
prospectus or prospectus supplement may be resumed. 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
2.5(a)) the Company, and each director
8
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 2.5(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 2.5(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 2.5, 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 2.5 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-
9
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 2.5 shall for any reason be held by a court to be unavailable to
an indemnified party under Section 2.5(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 2.5(a) or (b), the indemnified party
and the indemnifying party under Section 2.5(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) 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 2.5(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 2.5 (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 2.5 shall be made by periodic payments of
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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 upon
receipt by the Company of written invoices or statements, describing in
reasonable detail the expenses incurred and the amount and basis of calculation
thereof.
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, as amended, supplemented or otherwise modified from time to time,
between the Company and RCBA Playtex, L.P.
"Childs Agreement" means the Registration Rights Agreement, dated as of
January 28, 1998, as amended and restated by the First Amended and Restated
Registration Rights Agreement, dated as of June 1, 1998, as amended,
supplemented or otherwise modified from time to time, between Playtex Products,
Inc. and X.X. Childs Equity Partners L.P.
"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 any other shares of common stock as may constitute
"Common Stock" for purposes of the Indenture, in each case, as issuable or
issued upon conversion of the Notes.
"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 and restated by the First Amended and Restated
Registration Rights Agreement, dated as of June 1, 1998, as amended,
supplemented or otherwise modified from time to time, among the Company, HWH
Capital Partners, L.P., HWH Valentine Partners, L.P., and HWH Surplus Valentine
Partner, L.P.
"Indenture" means the Indenture, dated as of January 29, 1999 between
the Company and Marine Midland Bank, as Trustee, pursuant to which the Notes are
being issued, as amended or supplemented from time to time in accordance with
the terms hereof.
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"Notes" means the 6% Convertible Subordinated Notes Due 2004 of the
Company being issued and sold pursuant to the Purchase Agreement and the
Indenture.
"Other Registration Rights Agreement" means each of the Xxxx Agreement,
the Childs 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.
"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, Inc.,
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 2.1(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.
"Registration Statement" means any registration statement of the
Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
"Registrable Securities" means (A) the Shares of the Company into which
the Notes are convertible or converted, and any Related Registrable Securities
and (B) the Notes. As to any particular Registrable Securities, once issued,
such securities shall cease to be Registrable Securities when (i) a Registration
Statement
12
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, (ii) they may have been sold as permitted by
Rule 144 (or any successor provision) under the Securities Act, (iii) 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, (iv) they shall have ceased to be
outstanding, (v) in the case of a Note, such Note is converted into shares of
Common Stock in accordance with the terms of the Indenture or (vi) in the case
of a Note, such Note is eligible to be sold pursuant to paragraph (k) of Rule
144 and, as a result of the event or circumstance described in any of the
foregoing clauses (i) through (iv), the legends with respect to transfer
restrictions required under the Indenture (other than any such legends required
solely as the consequence of the fact that such Note is owned by, or was
previously owned by, the Company or an Affiliate of the Company) are removed or
removable in accordance with the terms of the Indenture. All references to
percentages of Registrable Securities shall be calculated pursuant to Section 9.
"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 2.1.
"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 each of the Other
Registration Rights Agreements, in each case other than the Company.
4. Rule 144. 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, or (b) 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 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
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the Company shall have obtained the written consent to such amendment, action or
omission to act, of the holder or holders of at least 66-2/3% 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. 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 Seller, addressed to it in the manner set forth
in the Purchase Agreement, or at such other address as it shall have furnished
to the Company in writing in the manner set forth herein;
(b) if to any other holder of Registrable Securities, at the
address that such holder shall have furnished to the Company in writing in the
manner set forth herein, or, until any such other holder so furnishes to the
Company an address, then to and at the address of the last holder of such
Registrable Securities who has furnished an address to the Company; or
(c) if to the Company, addressed to it in the manner set forth
in the Purchase 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.
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8. Assignment. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and, with respect to the
Company, the Seller and their respective successors and permitted assigns.
Except by operation of law, this Agreement may not be assigned by the Company
without the prior written consent of the holders of 66-2/3% of the Registrable
Securities outstanding at the time such consent is requested.
9. 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.
10. 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.
11. 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 Seller
shall be enforceable to the fullest extent permitted by law.
12. Entire Agreement. This Agreement, together with the Indenture, are
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
Indenture supersede all prior agreements and understandings between the parties
with respect to such subject matter.
13. Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
14. 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, applicable to contracts made
and to be performed wholly within such state.
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15. 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.
16. 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.
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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:
MONDIAL INDUSTRIES LIMITED
PARTNERSHIP
By:______________________________
Name:
Title:
