UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
Playtex Products, Inc.
(Name of Issuer)
Common Stock, Par Value $.01 per share
(Title of Class of Securities)
72813P 10 0
(CUSIP Number)
John W. Childs
J.W. Childs Equity Partners, L.P.
One Federal Street
Boston, Massachusetts 02110
(617)753-1100
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
January 28, 1998
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 72813P 10 0 Page 2 of 12 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
J.W. Childs Equity Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
SHARES 7,855,764
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
7,855,764
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,855,764
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13.05%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 72813P 10 0 Page 3 of 12 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
J.W. Childs Advisors, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
SHARES 7,855,764
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
7,855,764
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,855,764
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13.05%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 72813P 10 0 Page 4 of 12 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
J.W. Childs Associates, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
SHARES 7,855,764
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
7,855,764
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,855,764
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13.05%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 72813P 10 0 Page 5 of 12 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
J.W. Childs Associates, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
SHARES 7,855,764
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
7,855,764
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,855,764
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13.05%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 72813P 10 0 Page 6 of 12 Pages
Item 1. Security and issuer.
The class of equity securities to which this statement relates is
Common Stock, $.01 par value per share ("Shares"), of Playtex Products, Inc., a
Delaware corporation ("Playtex"), with principal executive offices at 300 Nyala
Farms Road, Westport, Connecticut 06880.
Item 2. Identify and background.
This statement is being filed jointly by J.W. Childs Equity Partners,
L.P. ("Childs"), a Delaware limited partnership, J.W. Childs Advisors L.P. ("JWC
Advisors"), a Delaware limited partnership which is the general partner of
Childs, J.W. Childs Associates, L.P. ("Associates L.P."), a Delaware limited
partnership which is the general partner of JWC Advisors and J.W. Childs
Associates, Inc. ("Associates Inc."), a Delaware corporation which is the
general partner of Associates L.P. Childs, JWC Advisors, Associates L.P. and
Associates Inc. are the "Reporting Persons". The agreement among the Reporting
Persons relating to joint filing of this statement is attached as Exhibit 1
hereto.
Each of the Reporting Persons is principally engaged in the business
of investing through partnerships in securities. Information concerning the
directors and executive officers of Associates, Inc. is contained in Schedule A
attached hereto.
The address of the principal business and office of each of the
Reporting Persons is One Federal Street, Twenty-First Floor, Boston,
Massachusetts 02110.
During the last five years, neither the Reporting Persons nor, to the
best knowledge of the Reporting Persons, any of the other persons named in this
Item 2 or Schedule A hereto: (i) has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors); or (ii) was a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any violation
with respect to such laws.
Item 3. Source and amount of funds or other consideration.
The consideration for the acquisition of Shares to which this statement
relates was shares in Personal Care Holdings, Inc. ("PCH"). On January 28, 1998,
PCH merged with and into PCG Acquisition Corp., a subsidiary of Playtex (the
"Merger") in exchange for $91 million in cash and an aggregate of 9,257,375
Shares. As a result of the Merger, Childs acquired 7,855,764 Shares. Effective
upon the consummation of the Merger, John W. Childs, the President of JWC
Advisors, was appointed a director of Playtex.
<PAGE>
SCHEDULE 13D
CUSIP No. 72813P 10 0 Page 7 of 12 Pages
Item 4. Purpose of transaction.
The transaction requiring the filing of this statement is described in
Item 3 above. The transaction was entered into principally for investment
purposes.
Depending upon Childs' continuing review of its investments, Childs may
(subject to any applicable securities laws) decide to sell all or any part of
the Shares, although it has no current plans to do so.
Except as set forth in this Item 4, the Reporting Persons do not have
any plans or proposals which would related to or result in:
(a) The acquisition by any person of additional securities of Playtex,
or the disposition of securities of Playtex;
(b) An extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving Playtex or any of its subsidiaries;
(c) A sale or transfer of a material amount of assets of Playtex or any
of its subsidiaries;
(d) Any change in the present board of directors or management of
Playtex including any plans or proposals to change the number or terms of
directors or to fill any existing vacancies on the board;
(e) Any material change in the present capitalization or dividend
policy of Playtex;
(f) Any other material change in Playtex's business or corporate
structure;
(g) Changes in Playtex's charter, bylaws or instruments corresponding
thereto or other actions which may impede the acquisition of control of Playtex
by any person;
(h) Causing a class of securities of Playtex to be delisted from a
national securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association;
(i) A class of equity securities of Playtex becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934; or
(j) Any action similar to any of those enumerated above.
<PAGE>
SCHEDULE 13D
CUSIP No. 72813P 10 0 Page 8 of 12 Pages
Item 5. Interest in securities of the issuer.
(a) Childs currently holds 7,855,764 Shares (constituting approximately
13.05% of the outstanding Shares, based upon the sum of the number reported by
Playtex in its Quarterly Report on Form 10-Q for the quarter ended September 27,
1997, plus the number of Shares issued in the Merger). JWC Advisors is the sole
general partner of Childs. Associates L.P. is the sole general partner of JWC
Advisors. Associates Inc. is the sole general partner of Associates L.P.
Therefore, JWC Advisors, Associates L.P. and Associates Inc. have the power to
direct the voting and disposition of any Shares owned or deemed to be
beneficially owned by Childs. As a result, JWC Advisors, Associates L.P. and
Associates Inc. may be deemed to beneficially own any shares of Issuer Common
Stock owned or deemed to be beneficially owned by Childs.
(b) Except as otherwise described in paragraph (a), Childs has the sole
right to vote and direct the disposition of the Shares which are the subject of
this statement.
(c) Other than as may be described in Item 3, no transactions in Shares
have been effected by the Reporting Persons during the past sixty days.
(d) No other person is known to have the right to receive or the power
to direct the receipt of dividends from, or the proceeds from the sale of
securities covered by this statement.
Item 6. Contracts, arrangements, understandings or relationships with respect to
securities of the issuer.
In connection with the Merger, Childs entered into a Stockholders
Agreement and a Registration Rights Agreement with Playtex. Pursuant to the
Stockholders Agreement, Childs has agreed (i) not to acquire, offer to acquire
or agree to acquire Shares where such action would, in the reasonable opinion of
Playtex, cause a "change of control" as defined in or a default under certain
indentures and other agreements to which Playtex is or becomes a party, and (ii)
not to distribute to its partners any of the Shares owned by it prior to the
third anniversary of the effective date of the Merger. Also pursuant to the
Stockholders Agreement, Playtex has agreed that as long as Childs continues to
own at least 4,628,688 Shares, as adjusted for stock splits, stock dividends and
reclassifications, it will use its best efforts to ensure that one person
designated by Childs is a member of the Playtex Board of Directors.
In accordance with the terms of their agreements to subscribe for
shares in PCH, certain former shareholders of PCH (including the directors and
executive officers of Associates, Inc. identified on Schedule A attached hereto)
have agreed that they will sell Shares acquired in the Merger only if a pro rata
portion of the Shares acquired by Childs in the Merger is being sold by Childs
or distributed to its partners on substantially the same terms, and as of the
date of the proposed sale such former shareholders, the Shares distributed are,
or upon the exercise of
<PAGE>
SCHEDULE 13D
CUSIP No. 72813P 10 0 Page 9 of 12 Pages
registration rights then exercisable could be, saleable under applicable
securities laws to the same extent as the Shares proposed to be sold by such
former shareholders.
Except as set forth in this Statement, to the best knowledge of the
Reporting Persons, there are no other contracts, arrangements, understandings or
relationships (legal or otherwise) among the persons named in Item 2 and between
such persons and any person with respect to any securities of Playtex, including
but not limited to, transfer or voting of any of the securities of the Issuer,
joint ventures, loan or option arrangements, puts or calls, guarantees or
profits, division of profits or loss, or the giving or withholding of proxies,
or a pledge or contingency the occurrence of which would give another person
voting power over the securities of the Issuer.
Item 7. Material to be filed as exhibits.
The following documents are filed as an exhibit to this statement:
1. Joint Filing Agreement
2. Stockholders Agreement
3. Registration Rights Agreement
4. Form of PCH Subscription Agreement
<PAGE>
SCHEDULE 13D
CUSIP No. 72813P 10 0 Page 10 of 12 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
current.
February 6, 1998
J.W. CHILDS EQUITY PARTNERS, L.P.
By: J.W. CHILDS ADVISORS, L.P., its general partner
By: J.W. CHILDS ASSOCIATES, L.P., its general partner
By: J.W. CHILDS ASSOCIATES, INC., its general partner
By: /s/ John W. Childs
Name: John W. Childs
Title: President
J.W. CHILDS ADVISORS, L.P.,
By: J.W. CHILDS ASSOCIATES, L.P., its general partner
By: J.W. CHILDS ASSOCIATES, INC., its general partner
By: /s/ John W. Childs
Name: John W. Childs
Title: President
J.W. CHILDS ASSOCIATES, L.P.,
By: J.W. CHILDS ASSOCIATES, INC., its general partner
By: /s/ John W. Childs
Name: John W. Childs
Title: President
J.W. CHILDS ASSOCIATES, INC.
By: /s/ John W. Childs
Name: John W. Childs
Title: President
<PAGE>
SCHEDULE 13D
CUSIP No. 72813P 10 0 Page 11 of 12 Pages
SCHEDULE A
<TABLE>
<CAPTION>
J.W. CHILDS ASSOCIATES, INC.
Executive Officers and Directors:
Principal
Name Business Address Occupation Office Citizenship
- ---- ---------------- ---------- ------ -----------
<S> <C> <C> <C> <C>
John W. Childs One Federal Street, President, President and U.S.
Boston, MA 02110 Associates Treasurer
Steven G. Segal One Federal Street, Employee, Vice President U.S.
Boston, MA 02110 Associates and Secretary
Adam L. Suttin One Federal Street, Employee, Vice President U.S.
Boston, MA 02110 Associates
Glenn A. Hopkins One Federal Street, Employee, Vice President U.S.
Boston, MA 02110 Associates
</TABLE>
<PAGE>
SCHEDULE 13D
CUSIP No. 72813P 10 0 Page 12 of 12 Pages
EXHIBIT INDEX
Exhibit
1. Joint Filing Agreement
2. Stockholders Agreement
3. Registration Rights Agreement
4. Form of PCH Subscription Agreement
AGREEMNT
Pursuant to Rule 13d-1(f)(1) under the Securities Exchange Act of 1934,
the undersigned hereby agree that only one statement containing the information
required by Schedule 13D (or any amendment thereof) need be filed on their
behalf with respect to the beneficial ownership of any equity securities of
Playtex Products, Inc. ("Playtex") or any subsequent acquisitions or
dispositions of equity securities of Playtex by any of the undersigned.
Dated: February 6, 1998
J.W. CHILDS EQUITY PARTNERS, L.P.
By: J.W. CHILDS ADVISORS, L.P., its general partner
By: J.W. CHILDS ASSOCIATES, L.P., its general partner
By: J.W. CHILDS ASSOCIATES, INC., its general partner
By: /s/ John W. Childs
Name: John W. Childs
Title: President
J.W. CHILDS ADVISORS, L.P.,
By: J.W. CHILDS ASSOCIATES, L.P., its general partner
By: J.W. CHILDS ASSOCIATES, INC., its general partner
By: /s/ John W. Childs
Name: John W. Childs
Title: President
J.W. CHILDS ASSOCIATES, L.P.,
By: J.W. CHILDS ASSOCIATES, INC., its general partner
By: /s/ John W. Childs
Name: John W. Childs
Title: President
J.W. CHILDS ASSOCIATES, INC.
By: /s/ John W. Childs
Name: John W. Childs
Title: President
EXHIBIT 99.2
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (the "Agreement") dated as of January
28, 1998, between PLAYTEX PRODUCTS, INC., a Delaware corporation (the
"Company"), and J.W. CHILDS EQUITY PARTNERS, L.P., a Delaware limited
partnership (the "Principal Stockholder") and the other persons who are set
forth in Schedule A hereto (collectively with the Principal Stockholder, the
"Childs Holders").
RECITALS
WHEREAS, the Company and the Principal Stockholder are,
together with PCG Acquisition Corp., a Delaware corporation and wholly owned
subsidiary of the Company ("Subsidiary"), and Personal Care Holdings Inc., a
Delaware corporation ("Target"), parties to a Merger Agreement, dated as of
December 22, 1997 (as amended, the "Merger Agreement"), pursuant to which, on
the Effective Date, Subsidiary will be merged with and into Target (the
"Merger"), whereupon Subsidiary shall continue as the surviving corporation;
WHEREAS, after the Effective Date, the Childs Holders will
hold, in aggregate, 9,257,375 shares (the "Shares") of common stock of the
Company, par value $.01 ("Company Common Stock"); and
WHEREAS, as an inducement to and a condition of the Company
entering into the Merger Agreement, the Company has required that the Childs
Holders, and the Childs Holders have agreed, to execute and deliver this
Agreement.
<PAGE>
2
NOW, THEREFORE, in consideration of the covenants and
agreements set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. (a) The following terms, whenever used
herein, shall have the following meanings for all purposes of this Agreement.
"1933 Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
An "Affiliate" of, or a person "affiliated" with, a specified
Person, means a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the Person specified. The term "control" (including the terms "controlling,"
"controlled by" and "under common control with") means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities, by
contract, or otherwise. No owner of a limited partnership interest of the
Principal Stockholder shall be deemed an affiliate of, or a Person "affiliated"
with, the Principal Stockholder solely by reason of such ownership.
"By-laws" means the by-laws of the Company.
"By-laws Amendment" means the proposed amendment to the
By-laws in the form attached as Exhibit A hereto.
<PAGE>
3
"Transfer" means, in relation to any share of Company Common
Stock, any sale, assignment, transfer or disposition by gift or otherwise,
including without limitation, any distribution in liquidation or otherwise by a
corporation or partnership; provided, however, that "Transfer" does not mean,
with respect to any such share of Company Common Stock, any pledge, mortgage,
hypothecation or grant of a security interest therein or a transfer thereof
through the granting of participation rights.
"Person" means any individual, firm, corporation, partnership,
limited liability company or partnership, trust, incorporated or unincorporated
association, joint venture, joint stock company, government (or an agency or
political subdivision thereof) or other entity of any kind, and shall include
any successor (by merger or otherwise) of such entity.
(b) Capitalized terms not otherwise defined herein shall have
the meanings given such terms in the Merger Agreement.
ARTICLE II
DIRECTORS
2.1 Increase in the Size of the Board of Directors. The
Company hereby agrees that it will use its best efforts to (i) increase the size
of its Board of Directors (the "Board") by two persons effective on the date
hereof, and (ii) cause one of the vacancies thus created to be filled by John W.
Childs in accordance with the By-laws as in effect on the date hereof.
2.2 Nomination of Target Director. The Company hereby agrees
that for so long as the Principal Stockholder owns, in the aggregate, at least
<PAGE>
4
4,628,688 Shares, as adjusted for stock splits, stock dividends, and
reclassifications, it will use its best efforts to ensure that, following any
vote for the election of directors of the Company at a stockholders' meeting or
otherwise, one director (the "Target Director") designated by the Principal
Stockholder is a member of the Board, provided, that the Principal Stockholder
shall ensure that the proposed Target Director is nominated in accordance with
the By-Laws.
2.3 Stockholder Meeting; Proxy Material; By-Laws Amendment.
The Company shall cause either (a) a meeting of its stockholders to be duly
called and held as soon as practicable following the Effective Time, subject to
the Company's right to adjourn such meeting at any time or from time to time if
in the Board's good faith judgment such adjournment is desirable, or (b)
consents of its stockholders to be solicited, in accordance with the By-laws and
the 1934 Act, for the purpose of voting for the adoption of the By-Laws
Amendment (the "Stockholder Meeting"). In connection with the Stockholder
Meeting, the Company: (A) shall promptly prepare and file with the Securities
and Exchange Commission (the "SEC") in accordance with the 1934 Act an
information statement relating to the By-Laws Amendment (the "Information
Statement"), use all reasonable efforts to have the Information Statement and/or
any amendment or supplement thereto cleared by the SEC and thereafter mail to
its stockholders as promptly as practicable following such clearance the
Information Statement; (B) shall use its reasonable best efforts to obtain the
necessary approvals by its stockholders for the adoption of the By-Laws
Amendment (unless the Board shall have determined in good faith, based upon
advice of outside counsel, that not taking such actions is necessary for the
Board to comply with its fiduciary duties
<PAGE>
5
under applicable law); and (C) shall otherwise comply with all legal
requirements applicable to the Stockholders Meeting. The Company shall make
available to the Principal Stockholder prior to the filing thereof with the SEC
copies of the preliminary Information Statement and any amendments or
supplements thereto and shall make any changes therein reasonably requested by
the Principal Stockholder insofar as such changes relate to any matters relating
to the Principal Stockholder.
ARTICLE III
TRANSFERS OF SECURITIES
3.1 Restrictions on Transfer of Company Common Stock. The
Principal Stockholder agrees that, prior to the third anniversary of the
Effective Date, it shall not Transfer any of the Shares, by distribution or
otherwise, to any of its shareholders, partners, members or owners.
3.2 Transfers Subject to Compliance with Securities Laws. No
Shares may be Transferred by the Childs Holders (other than pursuant to an
effective registration Statement under the 1933 Act) unless such Childs Holder
first delivers to the Company an opinion of counsel, reasonably satisfactory to
the Company, to the effect that such Transfer is not required to be registered
under the 1933 Act.
3.3 Certificates for Shares To Bear Legends. (A) So long as
the Shares are not sold pursuant to an effective registration statement under
the 1933 Act or pursuant to Rule 144 under the 1933 Act, the Shares shall be
subject to a stop-transfer order and the certificates therefor shall bear the
following legend by which each holder thereof shall be bound:
<PAGE>
6
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT
BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, OR
(ii) AN APPLICABLE EXEMPTION FROM REGISTRATION THEREUNDER."
(B) So long as the Shares are subject to the terms and
conditions of Section 3.1, the Shares shall be subject to a stop-transfer order
and the certificates shall bear the following legend:
"THE SALE OR TRANSFER OF THE SHARES REPRESENTED BY THIS
CERTIFICATE IS FURTHER SUBJECT TO RESTRICTIONS WHICH ARE
CONTAINED IN A STOCKHOLDERS AGREEMENT DATED AS OF JANUARY 28,
1998 A COPY OF WHICH IS ON FILE WITH THE ISSUER OF THESE
SHARES AND WILL BE FURNISHED BY THE ISSUER OF THESE SHARES TO
THE STOCKHOLDER ON REQUEST AND WITHOUT CHARGE."
(C) After the termination of the legend requirements of
either Section 3.3(A) or Section 3.3(B), the Company shall, upon the written
request of the holders of the Shares and receipt by the Company of evidence
reasonably satisfactory to it that such requirement has terminated (including,
with respect to the legend required by the Section 3.3(A), a written opinion of
outside counsel), issue certificates for such Shares that do not bear all or
part of the legend described in Section 3.3(A) or Section 3.3(B), as the case
may be.
<PAGE>
7
ARTICLE IV
RESTRICTIONS ON PURCHASE
4.1 Restricted Purchases. Each Childs Holder agrees that it
will not, nor will it permit any of its Affiliates to, directly or indirectly,
take any action, including, without limitation, to acquire, offer to acquire, or
agree to acquire, by purchase or otherwise any Company Common Stock, where such
action or acquisition would, in the reasonable opinion of the Company, cause (A)
a "Change of Control" under, and as defined in, (x) the Indenture dated as of
February 2, 1994 among the Company, certain subsidiaries of the Company, as
Guarantors, and IBJ Schroder Bank & Trust Company, as Trustee (the "1994
Indenture"), (y) the Indenture dated as of July 21, 1997 among the Company,
certain subsidiaries of the Company, as Guarantors, and Marine Midland Bank, as
Trustee (the "1997 Indenture" and, together with the 1994 Indenture, the
"Indentures") or (z) any other presently existing or future agreement of the
Company (a copy of which has been delivered to the Childs Holders with the
relevant provisions clearly identified) where such action or acquisition would
have a similar effect (any such agreement, a "Noticed Agreement"), or (B) a
default under the provisions of the Indentures or any Noticed Agreement, to the
extent that the relevant Childs Holder received a copy of such provisions prior
to taking any such action or making any such acquisition.
<PAGE>
8
ARTICLE V
TERMINATION
5.1 Termination. This Agreement shall terminate ten years from
the date hereof.
ARTICLE VI
MISCELLANEOUS
6.1 Amendment. This Agreement may be altered or amended only
with the consent of the Company and the Childs Holders Representative.
6.2 Specific Performance. The parties recognize that the
obligations imposed on them in this Agreement are special, unique and of
extraordinary character, and that in the event of breach by any party, damages
will be an insufficient remedy; consequently, it is agreed that the parties
hereto may have specific performance (in addition to damages) as a remedy for
the enforcement hereof, without proving damages.
6.3 Assignment. Except as other provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors of the parties hereto; provided, however, that this
Agreement may not be assigned by any party without the prior written consent of
the Company and the Childs Holders Representative except that the Company may
assign its rights herein to any successor to all or substantially all its assets
(by merger or otherwise). Any assignment of rights hereunder shall be coupled
with the assumption by the assignee of all of the obligations of the assignor
hereunder and shall thereby relieve
<PAGE>
9
such assignor of such obligations. Any purported assignment made in violation of
this Section 6.3 shall be void and of no force and effect.
6.4 Appointment of Representative. Each Childs Holder hereby
authorizes and appoints John W. Childs (in such capacity, the "Childs Holders
Representative") as its representative and agent for purposes of accepting and
delivering notices and taking actions hereunder on behalf of each Childs Holder.
In the event that John W. Childs is unable or unwilling to be the Childs Holders
Representative, then the Childs Holders holding at least a majority of the
Shares at such time (the "Majority Childs Holders") shall appoint a successor
Childs Holders Representative and, until such successor is appointed, all
actions to be taken by the Childs Holders Representative hereunder shall be
taken by the Majority Childs Holders.
6.5 Notices. Any and all notices, designations, consents,
offers, acceptances, or any other communication provided for herein shall be
given in writing and deemed received when delivered by overnight courier or hand
delivery, or when sent by facsimile transmission which shall be addressed, or
sent, as follows:
If to the Company, to it at:
Playtex Products, Inc.
300 Nyala Farms Road
Westport, Connecticut 06880
Attention: Michael F. Goss, Chief Financial Officer
Telecopier: (203) 341-4260
<PAGE>
10
With a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Robert M. Hirsh, Esq.
Telecopier: (212) 373-2159
If to the Childs Holders Representative to him at:
J.W. Childs Equity Partners, L.P.
c/o J.W. Childs Associates, Inc.
One Federal Street
Boston, MA 02110
Attention: John W. Childs
Telecopier: (617) 753-1101
With a copy to:
Sullivan & Worcester LLP
One Post Office Square
Boston, MA 02109
Attention: Christopher Cabot, Esq.
Telecopier: (617) 338-2880
or, in each case, such other address as the Principal
Stockholder shall specify to the Company and the other parties hereto.
6.6 Counterparts. This Agreement may be executed in one or
more counterparts and each counterpart shall be deemed to be an original and
which counterparts together shall constitute one and the same agreement of the
parties hereto.
6.7 Section Headings. Headings contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit or extend
the scope or intent of this Agreement or any provisions hereof.
<PAGE>
11
6.8 Choice of Law. This Agreement shall be governed by the
laws of the State of New York, without regard to principles of conflicts of
laws.
6.9 Entire Agreement. This Agreement, the Merger Agreement and
the Registration Rights Agreement contain the entire understanding of the
parties hereto respecting the subject matter hereof and thereof and supersede
all prior agreements, discussions, and understandings with respect to such
subject matters.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
PLAYTEX PRODUCTS, INC.
By: /s/ Michael F. Goss
Name: Michael F. Goss
Title: Executive Vice President
and Chief Financial Officer
J.W. CHILDS EQUITY PARTNERS, L.P.
By: J.W. CHILDS ADVISORS, L.P., its
General Partner
By: J.W. CHILDS ASSOCIATES, L.P., its
General Partner
By: J.W. CHILDS ASSOCIATES, INC.
By: /s/ Adam L. Suttin
Name: Adam L. Suttin
Title: Vice President
<PAGE>
12
FORM OF AMENDMENT TO
THE BY-LAWS OF THE COMPANY
a. The existing Section 15(b) in Article III of the By-laws
shall be redesignated Section 15(b)(A) and a Section 15(b)(B) shall be added to
read as follows:
"(B) From the Effective Date until the earlier of (1)
the date upon which the Principal Stockholder holds, in the
aggregate, less than 4,628,688 shares of common stock of the
Company or (2) the tenth anniversary of the Effective Date,
one of the Non-Purchaser Directors shall be the Target
Director. The "Effective Date" shall have the meaning given
that term in the Merger Agreement. The "Merger Agreement"
means the Merger Agreement, dated as of December 22, 1997
among the Corporation, PCG Acquisition Corp., Personal Care
Holdings, Inc. and J.W. Childs Equity Partners, L.P. (the
"Principal Stockholder"). The "Target Director" means the
Director designated by the Principal Stockholder."
<PAGE>
13
<TABLE>
<CAPTION>
Schedule A
<S> <C>
Bock Family Trust James D. Murphy and Diane G. Murphy
J.W. Childs Equity Partners, L.P. Joseph Pachella
James E. Childs Leslie A. Paparone
John W. Childs Jay E. Politi
Richard S. Childs Kenneth F. Reilly
The Dowds Family Investment Trust Joel Slank
Kenneth M. Evans Daniel M. Synan
Adam T. Feild Anne Tashjian
Timothy J. Healy James D. Tates
Glenn A. Hopkins Sharad B. Tilak
Jerry D. Horn Paul W. Tonnesen
Alan R. Koss Revocable Living Trust Mariane Wojcicki
Alan R. Koss Karen A. August
Lambros J. Lambros Dennis G. Podlesak
Stephanie L. Mansfield Julie B. Sweeney
Lawrence J. Mansfield and Edith R. Mansfield Neil P. Guller
Jenny Childs Preston Stephen K. Carrico
Raymond B. Rudy Michael Fleury
Steven G. Segal James P. Garvey
Steven G. Segal 1995 Irrevocable Trust Marcie J. Griesmeyer
SGS 1995 Family Limited Partnership David Hays
SGS-III Family Limited Partnership Kim Levine
Mario E. Soussou Michael Cox
Adam L. Suttin Rebecca Cushing
Suttin Family Trust Teresita Eugenio
Gagan Verma Peter Gower
Stephen H. Wise Thomas Horton
Catherine Durden Lee Jacobs
Michael P. Ferry Loren Block
Debra T. Follick Christina Bartolick
Bruce A. Goldsmith Cheryl Lawler
William R. Kinder
Michael J. Metzger
Donald W. Miller
Dennis L. Moore
Donald G. Morgan
</TABLE>
EXHIBIT 99.3
REGISTRATION RIGHTS AGREEMENT
among
PLAYTEX PRODUCTS, INC.
and
J.W. CHILDS EQUITY PARTNERS, L.P.
---------------------------------------
Dated as of January 28, 1998
---------------------------------------
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
<S> <C> <C>
1. Background......................................................................................1
2. Registration Under Securities Act, etc..........................................................1
2.1 Registration on Request................................................................1
2.2 Incidental Registration................................................................5
2.3 Registration Procedures................................................................9
2.4 Underwritten Offerings................................................................12
2.5 Preparation; Reasonable Investigation.................................................13
2.6 Limitations, Conditions and Qualifications to Obligations under
Registration Covenants................................................................13
2.7 Indemnification.......................................................................14
3. Definitions....................................................................................17
4. Rule 144 and Rule 144A.........................................................................20
5. Amendments and Waivers.........................................................................20
6. Nominees for Beneficial Owners.................................................................20
7. Appointment of Representative..................................................................20
8. Notices........................................................................................21
9. Assignment.....................................................................................21
10. Calculation of Percentage Interests in Registrable Securities..................................21
11. No Inconsistent Agreements.....................................................................21
12. Remedies.......................................................................................21
13. Severability...................................................................................22
14. Entire Agreement...............................................................................22
15. Headings.......................................................................................22
16. Governing Law..................................................................................22
17. Counterparts...................................................................................22
</TABLE>
<PAGE>
REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of January
28, 1998, between PLAYTEX PRODUCTS, INC., a Delaware corporation (the "Company")
and J.W. CHILDS EQUITY PARTNERS, L.P., a Delaware limited partnership (the
"Principal Stockholder") and the other persons who are set forth in Schedule A
hereto (collectively with the Principal Stockholder, the "Childs Holders").
The parties hereby agree as follows:
1. Background. Pursuant to that certain Merger Agreement (as amended,
the "Merger Agreement"), dated as of December 22, 1997, among the Company, PCG
Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of the
Company ("Subsidiary"), Personal Care Holdings Inc., a Delaware corporation
("Target"), and the Principal Stockholder, the Childs Holders received as part
of the consideration for their shares of common stock of Target, par value $.01
per share, among other things, in the aggregate, 9,257,375 shares (the "Shares")
of Common Stock, par value $.01 per share, of the Company. 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 Registration on Request.
(a) Request. At any time after the date that is six months
after the Effective Date (as defined in the Merger Agreement), upon the written
request of the Childs Representative on behalf of one or more holders (the
"Initiating Holders") of Registrable Securities that the Company effect the
registration under the Securities Act of all or part of such Initiating Holders'
Registrable Securities, the Company promptly will give written notice of such
requested registration to all registered holders of Registrable Securities, and
thereupon the Company will use its best efforts to effect, at the earliest
possible date, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has
been so requested to register by such Initiating Holders; and
(ii) all other Registrable Securities which the
Company has been requested to register by the Childs
Representative on behalf of the holders thereof (such holders
together with the Initiating Holders hereinafter are referred
to as the "Selling Holders") by written request given to the
Company within 30 days after the giving of such written notice
by the
<PAGE>
2
Company, all to the extent necessary to permit the disposition of the
Registrable Securities so to be registered.
(b) Registration of Other Securities. Whenever the Company
shall effect a registration pursuant to this Section 2.1, no securities other
than Registrable Securities shall be included among the securities covered by
such registration unless the Selling Holders of not less than 66-2/3% of all
Registrable Securities to be covered by such registration shall have consented
in writing to the inclusion of such other securities; provided, however, that
such consent shall not be required with respect to securities required to be
registered by (a) the holders thereof (the "HWH Selling Holders") pursuant to
Section 2.2(a) of the HWH Agreement (such securities, "HWH Securities") and (b)
the holders thereof (the "Third Party Selling Holders" and together with the HWH
Selling Holders, the "Other Selling Holders") pursuant to Section 3(a) of the
Stockholders Agreement (such securities, "Third Party Securities" and, together
with the HWH Securities, the "Other Securities").
(c) Registration Statement Form. Registrations under this
Section 2.1 shall be on such appropriate registration form of the Commission as
shall be reasonably selected by the Company.
(d) Effective Registration Statement. A registration
requested pursuant to this Section 2.1 shall be deemed to have been effected if
a registration statement with respect thereto has become effective and remained
effective in compliance with the provisions of the Securities Act with respect
to the disposition of all Registrable Securities covered by such registration
statement until such time as all of such Registrable Securities have been
disposed of in accordance with the intended methods of disposition by the seller
or sellers thereof set forth in such registration statement (unless the failure
to so dispose of such Registrable Securities shall be caused solely by reason of
a failure on the part of the Selling Holders); provided, that such period need
not exceed 135 days. Notwithstanding the foregoing, a registration requested
pursuant to this Section 2.1 shall not be deemed to have been effected if (i)
after it has become effective, such registration is interfered with by any stop
order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason not attributable solely to the
Selling Holders and has not thereafter become effective, or (ii) the conditions
to closing specified in the underwriting agreement, if any, entered into in
connection with such registration are not satisfied or waived, other than solely
by reason of a failure on the part of the Selling Holders.
(e) Selection of Underwriters. The underwriter or
underwriters of each underwritten offering of the Registrable Securities so to
be registered shall be selected by the Childs Representative on behalf of
Selling Holders of more than 50% of Registrable Securities to be included in
such registration and
<PAGE>
3
shall be reasonably acceptable to the Company. For purposes of this Section
2.1(e), the Company hereby acknowledges that each of the underwriters identified
on Schedule 2.1(e) hereto shall be deemed to be acceptable to the Company;
provided that such acknowledgment is subject to the condition that with respect
to any underwriter identified on such Schedule selected by the Selling Holders,
there shall have not occurred since the date hereof any material change with
respect to such underwriter which, in the reasonable determination of the
Company, makes such underwriter unqualified to participate in an underwritten
offering of Common Stock of which change the Company shall have notified the
Childs Representative prior to any such demand under this Section 2.1 upon
request from the Childs Representative.
(f) Priority in Requested Registration. If the managing
underwriter of any underwritten offering shall advise the Company in writ ing
(and the Company shall so advise each Selling Holder of Registrable Securities
requesting registration of such advice) that, in its opinion, the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering within a price range acceptable to the Childs
Representative on behalf of Selling Holders of 66-2/3% of the Registrable
Securities requested to be included in such registration, the Company, except as
provided below, 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 (the "Maximum Amount"),
first, Third Party Securities requested to be included in such
registration to the extent required to be included therein pursuant to the
Stockholders Agreement, pro rata (based on the number of Third Party Securities
requested to be included in such registration) among the Third Party Selling
Holders requesting participation in such registration;
second, Registrable Securities requested to be included in
such registration up to an aggregate amount equal to the lesser of (A) the
aggregate amount of Registrable Securities requested to be included in such
registration and (B) (x) if such registration is the first requested pursuant to
this Section 2.1 (the "first registration"), the excess, if any, of the Maximum
Amount over the amount of securities provided for in the preceding paragraph
(such amount, the "Adjusted Maximum Amount"), but not in excess of 75% of the
Maximum Amount, or (y) if such registration is the second requested pursuant to
this Section 2.1 (the "second registration"), the sum of 50% of the Adjusted
Maximum Amount plus the Recapture Amount;
third, HWH Securities requested to be included in such
registration up to an aggregate amount equal to the lesser of (A) the aggregate
amount of HWH Securities requested to be included in such registration and (B)
(x) if such registration is the first registration, the excess, if any, of the
Maximum Amount over the amount of securities provided for in the two preceding
paragraphs but not in excess of 25% of
<PAGE>
4
the Maximum Amount, or (y) if such registration is the second registration, 50%
of the Adjusted Maximum Amount less the Recapture Amount;
fourth, to the extent that the amount of securities provided
for in the three immediately preceding paragraphs is less than the Maximum
Amount, Registrable Securities or HWH Securities, as applicable, requested to be
included in such registration, up to the aggregate amount requested by the
Selling Holders and HWH Selling Holders, respectively, to be included in such
registration in excess of the amounts provided for in the three immediately
preceding paragraphs; and
fifth, all securities proposed to be sold by the Company for
its own account;
provided, that from and after the date on which the Stockholders Agreement is no
longer in effect, all references to Third Party Securities in the foregoing
priorities shall be deleted and the priorities provided for herein shall be
automatically adjusted accordingly.
For purposes of the foregoing (A) all Registrable Securities
included in such registration shall be allocated pro rata (based on the number
of Registrable Securities held by each of the Selling Holders) among the Selling
Holders requesting such registration and (B) all HWH Securities included in such
registration shall be allocated pro rata (based on the number of HWH Securities
held by each of the HWH Selling Holders) among the HWH Selling Holders
requesting participation in such registration.
Notwithstanding the foregoing, if the total number of
Registrable Securities requested to be included in any registration cannot be
included, the Childs Representative on behalf of the holders of Registrable
Securities requesting registration thereof pursuant to this Section 2.1,
representing not less than 50% of the Registrable Securities with respect to
which registration has been requested, shall have the right to withdraw the
request for registration by giving written notice to the Company within 20 days
after receipt of the notice from the managing underwriter described above by the
Company and, in the event of such withdrawal, such request shall not be counted
for purposes of the requests for registration to which holders of Registrable
Securities are entitled pursuant to this Section 2.1. If a request for
registration is withdrawn pursuant to the immediately preceding sentence and at
least 80% of the Registrable Securities requested to be included could have been
included therein, the Registration Expenses incurred by the Company in
connection with such withdrawn registration through the date of the Company's
receipt of the notice requesting such withdrawal, shall be reimbursed by the
Selling Holders, pro rata (based on the number of registrable securities
requested to be included therein) among the Selling Holders.
<PAGE>
5
(g) Limitations on Registration Requests. Notwithstanding
anything in this Section 2.1 to the contrary, in no event will the Company be
required to effect (i) in the aggregate, more than two registrations pursuant to
this Section 2.1; provided that in the event that the holders of Registrable
Securities are unable to include at least 50% of the relevant Maximum Amount
with respect to any such registration requested pursuant to Section 2.1(a) as a
result solely of the participation of the Third Party Selling Holders in such
registration, then, unless the amount requested to be included in such
registration is less than 50% of the relevant Maximum Amount, such registration
shall not be counted for purposes of this clause (i), (ii) a registration
pursuant to this Section 2.1 within the six-month period occurring immediately
subsequent to the effectiveness (within the meaning of Section 2.1(d)) of a
registration statement filed pursuant to this Section 2.1, unless a majority of
the Disinterested Directors determines that effecting such second registration
within the six-month period would not have a material adverse effect on the
market price of the Common Stock, or (iii) a registration pursuant to Section
2.1 covering less than 30% of the then outstanding Registrable Securities.
(h) Expenses. The Company will pay all Registration
Expenses in connection with any registrations requested pursuant to this Section
2.1.
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, 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 2.2. Upon the written
request of any such holder (a "Requesting Holder") (which request shall specify
the Registrable Securities intended to be disposed of by such 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), 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 its request to have
its Registrable Securities included in such registration
<PAGE>
6
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 registra tion 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), without prejudice, however, to the rights of
any holder or holders of Registrable Securities entitled to do so to cause such
registration to be effected as a registration under Section 2.1, 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. No registration effected under this Section
2.2 shall relieve the Company of its obligation to effect any registration upon
request under Section 2.1.
(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 Other
Securities requested to be included in such registration would materially
adversely affect such offering, and the Company has so advised the Requesting
Holders and the holders of Other Securities that have requested Other Securities
to be included in such registration ("Other Requesting Holders") in writing,
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 (the "Incidental Maximum Amount"):
(A) if such registration is the first or second registration
initiated pursuant to Section 2.1 of the HWH Agreement:
first, Registrable Securities requested to be included in such
registration up to the Recapture Amount;
second, HWH Securities requested to be included in such
registration up to an amount equal to the lesser of (i) the aggregate amount of
HWH Securities requested to be included in such registration and (ii) 85% of the
Incidental Maximum Amount less the Recapture Amount;
third, Third Party Securities requested to be included in such
registration to the extent required to be included therein pursuant to the
Stockholders Agreement, pro rata (based on the number of Third Party Securities
requested to be included in such registration) among the Third Party Requesting
Holders requesting participation in such registration;
<PAGE>
7
fourth, Registrable Securities requested to be included in
such registration up to an amount equal to the lesser of (i) the aggregate
amount of Registrable Securities requested to be included in such registration,
(ii) the excess of the Incidental Maximum Amount over the amount provided for in
the three preceding paragraphs and (iii) 15% of the Incidental Maximum Amount;
fifth, Registrable Securities and Other Securities requested
to be included in such registration, up to the aggregate amount requested by the
Selling Holders and HWH Selling Holders to be included in such registration in
excess of the amounts provided for in the preceding paragraphs; and
sixth, securities proposed by the Company to be sold for its
own account;
(B) if such registration is the third or fourth registration
initiated pursuant to Section 2.1 of the HWH Agreement:
first, Third Party Securities requested to be included in such
registration to the extent required to be included therein pursuant to the
Stockholders Agreement, pro rata (based on the number of Third Party Securities
requested to be included in such registration) among the Third Party Requesting
Holders requesting participation in such registration;
second, Registrable Securities and HWH Securities requested to
be included in such registration, pro rata (based on the number of securities of
the Company held by each Requesting Holder and each HWH Selling Holder) among
such Requesting Holders and HWH Selling Holders; and
third, securities proposed by the Company to be sold for its
own account;
(C) if such registration is initiated by the Third Party
Selling Holders pursuant to Section 3(b) of the Stockholders Agreement:
first, Third Party Securities requested to be included in such
registration by the Third Party Requesting Holders to the extent required to be
included therein pursuant to the Stockholders Agreement, pro rata (based on the
number of Third Party Securities requested to be included in such registration);
second, Registrable Securities and HWH Securities requested to
be included in such registration, pro rata (based on the number of securities of
the Company held by each Requesting Holder and each HWH Requesting Holder) among
such Requesting Holders and HWH Requesting Holders; and
<PAGE>
8
third, securities proposed by the Company to be sold for its
own account; and
(D) in all other incidental registrations:
first, securities proposed by the Company to be sold for its
own account;
second, Third Party Securities requested to be included in
such registration to the extent required to be included therein pursuant to the
Stockholders Agreement and HWH Securities, pro rata (based on the number of
Other Securities requested to be included in such registration by each Other
Requesting Holder) among the Other Requesting Holders requesting participation
in such registration; and
third, Registrable Securities;
provided, that from and after the date that the Stockholders Agreement is no
longer in effect, (x) all references to Third Party Securities in the priorities
set forth in clauses (A) and (B) above shall be deleted and the priorities
provided for herein shall be automatically adjusted accordingly, (y) clause (C)
above shall be deleted in its entirety, and (z) clause (D) shall be redesignated
as clause (C) and shall be amended in its entirety to read as follows:
"(C) in all other incidental registrations:
first, securities proposed by the Company to be sold for its
own account; and
second, Registrable Securities and HWH Securities requested to
be included in such registration, pro rata (based on the number of securities of
the Company held by each Requesting Holder and each HWH Requesting Holder) among
the Requesting Holders and the HWH Requesting Holders requesting participation
in such registration."
For purposes of the foregoing, to the extent not otherwise
provided for above, (x) all Registrable Securities included in any such
registration shall be allocated pro rata (based on the number of Registrable
Securities held by each of the Requesting Holders) among the Requesting Holders
and (y) all HWH Securities included in any such registration shall be allocated
pro rata (based on the number of HWH Securities held by each of the HWH
Requesting Holders) among the HWH Requesting Holders.
<PAGE>
9
(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 Sections 2.1 and 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) prepare and file with the Commission such
amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be
necessary to keep such registration statement effective in
accordance with Section 2.1(d) hereof and to comply with the
provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such
registration statement until such time as all of such
Registrable Securities have been disposed of in accordance
with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement;
provided, that except with respect to any such registration
statement filed pursuant to Rule 415 under the Securities Act,
such period need not exceed 135 days;
(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 of the United
States of America where an exemption is not available and
<PAGE>
10
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;
(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
<PAGE>
11
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
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
<PAGE>
12
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) Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering by holders of Registrable Securities
pursuant to a registration requested under Section 2.1, the Company will enter
into an underwriting agreement with such underwriters for such offering, such
agreement to be reasonably satisfactory in substance and form to the Childs
Representative on behalf of the holders of Registrable Securities representing
at least 50% of all Registrable Securities and the underwriters and to contain
such representations and warranties by the Company and such other terms as are
generally prevailing in agreements of that type, including, without limitation,
indemnities to the effect and to the extent provided in Section 2.7 or such
other indemnities as are customarily received by underwriters in public
offerings of similar securities. The holders of the Registrable Securities
proposed to be sold by such underwriters will reasonably cooperate with the
Company in the negotiation of the underwriting agreement. Such holders of
Registrable Securities to be sold by such underwriters shall be parties to such
underwriting agreement 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. No holder of Registrable Securities shall be
required to make any representations or warranties to or agreements with the
Company other than representations, warranties or agreements regarding such
holder, such holder's Registrable Securities and such holder's intended method
of distribution or any other representations required by applicable law.
(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
<PAGE>
13
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 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 Limitations, Conditions and Qualifications to
Obligations under Registration Covenants. The Company shall be entitled to
postpone for a reasonable period of time (but not exceeding 90 days) the filing
of any registration statement otherwise required to be prepared and filed by it
pursuant to Section 2.1 if the Company determines, in its reasonable judgment,
that such registration and offering would interfere with any financing,
acquisition, corporate reorganization or other material transaction involving
the Company and promptly gives the holders of Registrable Securities requesting
registration thereof pursuant to Section 2.1 written notice of such
determination, containing a general statement of the reasons for such
postponement and an approximation of the anticipated delay. If the Company shall
so postpone the filing of a registration statement, holders of Registrable
Securities requesting registration thereof pursuant to Section 2.1, representing
not less than 50% of the Registrable Securities with respect to which
registration has been requested, shall have the right to withdraw the request
for registration by giving written notice to the Company within 30 days after
receipt of the notice of postponement and, in the event of such withdrawal, such
request shall not be counted for purposes of the requests for registration to
which holders of Registrable Securities are entitled pursuant to Section 2.1
hereof.
<PAGE>
14
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 2.1 or 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 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
<PAGE>
15
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 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 2.7, 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
<PAGE>
16
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 settle 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 2.7 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 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
<PAGE>
17
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:
"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 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.
"Disinterested Director" means, with respect to any
transaction or series of related transactions, a member of the board of
directors of the Company who does not have any material direct or indirect
financial interest in or with respect to such transaction or series of related
transactions.
"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.
<PAGE>
18
"HWH Agreement" means the Registration Rights Agreement dated
as of March 17, 1995 among the Company, HWH Capital Partners, L.P., HWH
Valentine Partners, L.P., and HWH Surplus Valentine Partner, L.P.
"Incidental Maximum Amount" is defined in Section 2.2(b).
"Initiating Holder" is defined in Section 2.1.
"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.
"Recapture Amount" means the sum of (A) in the event that
Selling Holders have requested registration of Registrable Securities
representing, in the aggregate, more than the Adjusted Maximum Amount with
respect to the first registration effected by the Company pursuant to Section
2.1 hereof, the excess, if any, of (x) the lower of 75% of the Maximum Amount
with respect to such registration or the aggregate amount requested by the
Selling Holders to be included in such registration, over (y) the number of
Registrable Securities included in such registration, plus (B) in the event that
Requesting Holders have requested registration of Registrable Securities
representing, in the aggregate, more than 15% of the Incidental Maximum Amount
with respect to the first registration effected by the Company pursuant to
Section 2.1 of the HWH Agreement, the excess, if any, of (x) 15% of such
Incidental Maximum Amount, over (y) the number of Registrable Securities
included in such registration. The Recapture Amount in respect of any
registration effected by the Company pursuant to Section 2.1 hereof or Section
2.1 of the HWH Agreement shall be adjusted to reflect the inclusion of any
portion of the Recapture Amount included in any prior registration.
"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 shall have
been sold as permitted by Rule 144 (or any successor provision) under the
Securities Act, (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 Childs Holder or
(e) they shall have ceased to be outstanding.
<PAGE>
19
"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, 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 Selling Holders (selected by Selling 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)
or Section 2.6, 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 Stockholders Agreement, respectively, in each case other than the
Company.
"Selling Holder" is defined in Section 2.1.
"Stockholders Agreement" means the Amended and Restated
Stockholders Agreement, dated as of November 5, 1991, by and among Playtex FP
Group Incorporated, the management investors listed on Schedule A thereto,
ML-Lee Acquisition Fund, L.P., Thomas H. Lee Company and the related persons
thereof set forth on Schedule B thereto, Chesterfield Investments and Sara Lee
Corporation, as
<PAGE>
20
amended by Amendment No. 1, dated as of March 17, 1995 and effective as of June
6, 1995, by and among the Company, Joel E. Smilow, Richard Smilow Trust, William
Smilow Trust, Susan Varsa Trust, Hercules P. Sotos, Christina Sotos Trust, Peter
Sotos Trust, Cynthia Sotos Trust, Calvin J. Gauss and the 1989 Thomas H. Lee
Nominee Trust, dated as of September 29, 1989.
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.
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 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."
<PAGE>
21
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.
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, with respect to the
Company only, its respective successors and permitted 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
out standing 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.
<PAGE>
22
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.
14. Entire Agreement. This Agreement, together with the Merger
Agreement (including the exhibits and schedules thereto) and the Stockholders
Agreement, 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, the Merger Agreement (including the exhibits and schedules thereto)
and the Stockholders Agreement 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.
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: /s/ Michael F. Goss
Name: Michael F. Goss
Title: Executive Vice President
and Chief Financial Officer
<PAGE>
23
J.W. CHILDS EQUITY PARTNERS, L.P.
By: J.W. CHILDS ADVISORS, L.P., its
general partner
By: J.W. Childs Associates, L.P., its
general partner
By: J.W. Childs Associates, Inc.
By: /s/ Adam L. Suttin
Name: Adam L. Suttin
Title: Vice President
<PAGE>
Schedule 2.1(e)
Acceptable Underwriters:
Merrill Lynch & Co., Inc.
Morgan Stanley, Dean Witter, Discover & Co.
Salomon Brothers Inc.
Donaldson Lufkin & Jenrette
NationsBank Montgomery
Goldman, Sachs & Co.
BT Alex Brown Incorporated
Credit Suisse First Boston
PaineWebber Incorporated
<PAGE>
<TABLE>
<CAPTION>
Schedule A
<S> <C>
Bock Family Trust James D. Murphy and Diane G. Murphy
J.W. Childs Equity Partners, L.P. Joseph Pachella
James E. Childs Leslie A. Paparone
John W. Childs Jay E. Politi
Richard S. Childs Kenneth F. Reilly
The Dowds Family Investment Trust Joel Slank
Kenneth M. Evans Daniel M. Synan
Adam T. Feild Anne Tashjian
Timothy J. Healy James D. Tates
Glenn A. Hopkins Sharad B. Tilak
Jerry D. Horn Paul W. Tonnesen
Alan R. Koss Revocable Living Trust Mariane Wojcicki
Alan R. Koss Karen A. August
Lambros J. Lambros Dennis G. Podlesak
Stephanie L. Mansfield Julie B. Sweeney
Lawrence J. Mansfield and Edith R. Mansfield Neil P. Guller
Jenny Childs Preston Stephen K. Carrico
Raymond B. Rudy Michael Fleury
Steven G. Segal James P. Garvey
Steven G. Segal 1995 Irrevocable Trust Marcie J. Griesmeyer
SGS 1995 Family Limited Partnership David Hays
SGS-III Family Limited Partnership Kim Levine
Mario E. Soussou Michael Cox
Adam L. Suttin Rebecca Cushing
Suttin Family Trust Teresita Eugenio
Gagan Verma Peter Gower
Stephen H. Wise Thomas Horton
Catherine Durden Lee Jacobs
Michael P. Ferry Loren Block
Debra T. Follick Christina Bartolick
Bruce A. Goldsmith Cheryl Lawler
William R. Kinder
Michael J. Metzger
Donald W. Miller
Dennis L. Moore
Donald G. Morgan
</TABLE>
EXHIBIT 99.4
Subscription Letter
(for J.W. Childs & Participants)
Personal Care Holdings, Inc.
c/o J.W. Childs Associates, L.P.
One Federal Street, 21st Floor
Boston, Massachusetts 02110
Gentlemen:
The undersigned hereby offers to purchase the aggregate number of
shares (the "Shares") of the Common Stock, par value $0.01 per share, of
Personal Care Holdings, Inc., a Delaware corporation (the "Corporation"), for
the cash price, per share and in the aggregate, as set forth on the signature
page hereto.
The undersigned hereby acknowledges that he/she/it understands that the
Shares have not been registered under the Securities Act of 1933, as amended
(the "Act"), or any state securities law ("Blue Sky Law") and that the Shares
constitute "restricted securities" within the meaning of the rules promulgated
under the Act.
The undersigned hereby represents to the Corporation that he/she/it
will acquire the Shares for his/her/its own account for investment and not with
a view to or for sale in connection with any distribution thereof, and that
he/she/it has no present intention of selling or distributing any of the Shares.
The undersigned further represents to the Corporation that he/she/it has no
reason to anticipate any change in his/her/its circumstances or any other
particular occasion or event which would cause him/her/it to sell or distribute
any of the Shares.
The undersigned has completed the section of this subscription letter
entitled "Investor General Information".
If the undersigned is an "accredited investor" as such term is defined
in Regulation D promulgated under the Act, he/she/it has completed the section
of this subscription letter entitled "Certification of Accredited Investor
Status," and all information he/she/it has provided therein is complete and
correct.
If the undersigned is not an "accredited investor", he/she/it has
completed the attached "Investor Financial Information" and will provide the
Corporation with such other information as the Corporation may request in order
to determine whether the undersigned meets applicable investment suitability
standards. All such information provided by the undersigned is and will be
complete and correct.
The undersigned agrees that he/she/it will make no sale, assignment or
transfer of any interest in any of the Shares in the absence of an effective
registration statement under the Act and under applicable Blue Sky Law relating
to such transfer of the Shares or an opinion of counsel satisfactory to the
Corporation that registration under the Act or Blue Sky Law is not required. The
stock certificates for the Shares will bear a legend to this effect.
<PAGE>
The undersigned acknowledges that he/she/it has been afforded an
opportunity to ask such questions and obtain such information as the undersigned
has determined necessary in order to understand the risks of purchasing the
Shares.
The undersigned acknowledges that he/she/it is a "participant" of John
W. Childs in respect of the undersigned's investment in the Corporation within
the meaning of paragraph 3.07 of the First Amended and Restated Agreement of
Limited Partnership of J.W. Childs Equity Partners, L.P. dated as of December
20, 1996 (the "Equity Partners Agreement"), and, accordingly, the undersigned
agrees to be bound by all of the provisions of paragraph 3.07 of the Equity
Partners Agreement, including, without limitation, the provisions of 3.07(b),
and further agrees to be bound by the confidentiality provisions set forth in
paragraph 14.08 of the Equity Partners Agreement as if the undersigned were a
limited partner under the Equity Partners Agreement.
INVESTOR GENERAL INFORMATION
(To be completed by all Investors.)
Name:___________________________________ Telephone:_______________________
Home Address: ______________________________________________________________
City:_____________________________State:_______________Zip Code: _____________
Name of Business
or Employer:__________________________________________Position: ______________
Business Address: ____________________________________________________________
City:_____________________________State:_______________Zip Code: _____________
Telephone:_______________________________________
Date of Birth:_____________________________________
Social Security Number:____________________________
U.S. Citizen: Yes_______ No_______
CERTIFICATION OF ACCREDITED
INVESTOR STATUS
(To be completed by each "accredited" investor according to the
criteria set forth below.)
The undersigned qualifies as an "accredited investor" pursuant to
Regulation D under the Securities Act of 1933, as amended, as a result of his or
her status as (check as appropriate):
____ A natural person whose individual net worth, or joint net
worth with his or her spouse, exceeds $1,000,000 (including
home, home furnishings and automobiles);
____ A natural person who had an individual income in excess of
$200,000 in each of the two most recent years, or joint income
with his or her spouse in excess of $300,000
-2-
<PAGE>
in each of those years, and who reasonably expects an income
of the same level in the current year. For this purpose,
"income" means individual adjusted gross income for federal
income tax purposes, plus (A) any deduction for long-term
capital gains under Section 1202 of the Internal Revenue Code
of 1986, as amended (the "Code"), (B) any deduction for
depletion under Section 611 et seq. of the Code, (C) any
exclusion for interest under Section 103 of the Code, and (D)
any losses of a partnership allocated to him as reported on
Schedule E of Form 1040 or any successor form;
____ A director or executive officer of the Corporation. For this
purpose, "executive officer" means its president, any managing
director or other officer or other person who performs a
policy making function and may include officers of affiliates
of the Corporation or if they perform such policy making
functions for the Corporation;
____ A trust with total assets greater than $5,000,000 not formed
for the purpose of acquiring shares of the Corporation, whose
purchase is directed by a person who has such knowledge and
experience in financial and business matters that he is
capable of evaluating the merits and risks of the proposed
investment;
____ A trust or other entity in which all of the equity owners/
beneficiaries are "accredited investors" as defined herein in
any one or more of the categories specified above;
____ A charitable, educational, religious or other not-for-profit
organization described in Section 501(c)(3) of the Code,
corporation, Massachusetts or similar business trust, or
partnership, with total assets in excess of $5,000,000 and not
formed for the specific purpose of acquiring shares of the
Corporation.
INVESTOR FINANCIAL INFORMATION
(To be completed by investors who are not accredited
investors according to the criteria set forth above.)
Income
The approximate amount of my income for the years indicated below is
(in 000's):
(i) Gross individual (not joint) income for the tax year ended:
1994: Over - $150__ $175__ $200__ $300__
1995: Over - $150__ $175__ $200__ $300__
(ii) Anticipated individual (not joint) gross income for the tax year
ended:
1996: Over - $150__ $175__ $200__ $300__
1997: Over - $150__ $175__ $200__ $300__
-3-
<PAGE>
(iii) Gross joint income for the tax year ended:
1994: Over - $150__ $175__ $200__ $300__
1995: Over - $150__ $175__ $200__ $300__
(iv) Anticipated gross joint income for the tax year ended:
1996: Over - $150__ $175__ $200__ $300__
1997: Over - $150__ $175__ $200__ $300__
Net Worth
(v) My individual net worth is (in 000's):
Over - $500__ $750__
Over - $1,000__ $2,000__ $3,000__
(vi) My joint net worth is (in 000's):
Over - $500__ $750__
Over - $1,000__ $2,000__ $3,000__
Other Suitability Standards
I satisfy at least one of the following criteria:
(vii) I, either alone or with a purchaser representative,
have such knowledge and experience in financial and
business matters so as to be capable of evaluating the
merits and risk of an investment in the Corporation.
Yes_____ No_____
(viii) I am able to bear the economic risk of an investment in
the Corporation, and I am investing no more than 10% of
my net worth (or joint net worth with my spouse) in an
investment in the Corporation.
Yes_____ No_____
[Signatures on the following page.]
-4-
<PAGE>
Signature Page to Subscription Letter
Personal Care Holdings, Inc.
IN WITNESS WHEREOF, the undersigned has executed, or caused to be
executed, this subscription letter for the number of shares and at the aggregate
and per share price set forth below.
Name:
Signature:________________________________
Title (if applicable):____________________
Date:_____________________________________
No. of Shares:
Price per share:
Aggregate price:
The above subscription is hereby accepted this ____ day of
________________, 1996.
PERSONAL CARE HOLDINGS, INC.
By:_________________________
Title:
-5-
