<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 5)*
PLAYTEX PRODUCTS, INC.
(Name of Issuer)
Common Stock, Par Value $.01
(Title of Class of Securities)
72813P-10-0
(CUSIP Number)
Murray A. Indick
Richard C. Blum & Associates, L.P.
909 Montgomery Street, Suite 400
San Francisco, CA 94133
(415) 434-1111
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 1, 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> 2
<TABLE>
<CAPTION>
CUSIP NO. 72813P-10-0 SCHEDULE 13D
<S> <C>
- ------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON RICHARD C. BLUM & ASSOCIATES, L.P.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 94-3205364
- ------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]
(b) [ ]
- ------------------------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------------------------
4. SOURCE OF FUNDS* See Item 3 below
- ------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- ------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION California
- ------------------------------------------------------------------------------
7. SOLE VOTING POWER -0-
NUMBER OF -----------------------------------------------------------
SHARES 8. SHARED VOTING POWER 5,758,700**
BENEFICIALLY
OWNED BY EACH -----------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER -0-
-----------------------------------------------------------
10. SHARED DISPOSITIVE POWER 5,758,700**
- ------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,758,700**
- ------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- ------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.6%**
- ------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON PN, IA
- ------------------------------------------------------------------------------
** See Item 5 below
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 3
<TABLE>
<CAPTION>
CUSIP NO. 72813P-10-0 SCHEDULE 13D
<S> <C>
- ------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON RICHARD C. BLUM & ASSOCIATES, INC.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 94-2967812
- ------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]
(b) [ ]
- ------------------------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------------------------
4. SOURCE OF FUNDS* See Item 3 below
- ------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- ------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION California
- ------------------------------------------------------------------------------
7. SOLE VOTING POWER -0-
NUMBER OF -----------------------------------------------------------
SHARES 8. SHARED VOTING POWER 5,758,700**
BENEFICIALLY
OWNED BY EACH -----------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER -0-
-----------------------------------------------------------
10. SHARED DISPOSITIVE POWER 5,758,700**
- ------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,758,700**
- ------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- ------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.6%**
- ------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON CO
- ------------------------------------------------------------------------------
** See Item 5 below
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 4
<TABLE>
<CAPTION>
CUSIP NO. 72813P-10-0 SCHEDULE 13D
<S> <C>
- ------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON RICHARD C. BLUM
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
- ------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]
(b) [ ]
- ------------------------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------------------------
4. SOURCE OF FUNDS* See Item 3 below
- ------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- ------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION California
- ------------------------------------------------------------------------------
7. SOLE VOTING POWER -0-
NUMBER OF -----------------------------------------------------------
SHARES 8. SHARED VOTING POWER 5,758,700**
BENEFICIALLY
OWNED BY EACH -----------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER -0-
-----------------------------------------------------------
10. SHARED DISPOSITIVE POWER 5,758,700**
- ------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,758,700**
- ------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- ------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.6%**
- ------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON IN
- ------------------------------------------------------------------------------
** See Item 5 below
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 5
CUSIP NO. 72813P-10-0 SCHEDULE 13D
This Amendment No. 5 amends the Statement on Schedule 13D (the "Schedule 13D")
filed with the Securities and Exchange Commission (the "Commission") on
December 4, 1997 by Richard C. Blum & Associates, L.P., a California limited
partnership ("RCBA L.P."); Richard C. Blum & Associates, Inc., a California
corporation ("RCBA Inc."); and Richard C. Blum, the Chairman and a substantial
shareholder of RCBA Inc. (collectively, and together with RCBA-Playtex, L.P.,
the "Reporting Persons"). The principal executive office and mailing address of
the Issuer is 300 Nyala Farms Road, Westport, CT 06880. The following
amendments to Items 4,5 and 6 of the Schedule 13D are hereby made. Unless
otherwise defined herein, all capitalized terms shall have the meanings
ascribed to them in the Schedule 13D.
ITEM 4. PURPOSE OF TRANSACTION
Item 4 of the Schedule 13D is amended as follows:
As set forth in Item 6 below, on June 1, 1998, pursuant to agreements attached
hereto as Exhibits B, C and D, the Reporting Persons have agreed to acquire an
additional six million (6,000,000) shares of the securities of the Issuer, the
Issuer has agreed to elect two persons designated by the Reporting Persons to
the Board of Directors of the Issuer, the Reporting Persons and other
shareholders of the Issuer have agreed to vote their shares in support of all
nominees for director nominated by the Board of Directors, the Reporting
Persons have agreed to limit their acquisition of additional shares to two
million (2,000,000) and the Issuer has granted certain registration rights to
the Reporting Persons.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
Item 5 of the Schedule 13D is hereby amended as follows:
(a),(b) According to the Issuer's most recent Form 10-Q, there were 60,296,851
shares of Common Stock issued and outstanding as of May 11, 1998. Based on such
information, after taking into account the transactions described in Item 5(c)
below, the Reporting Persons report direct holdings of 4,829,900 shares of the
Common Stock on behalf of its clients, which represents 8% of the outstanding
shares of the Common Stock.
In addition, because RCBA L.P. has voting and investment power with respect to
928,800 shares that are legally owned by The Common Fund for the account of its
Equity Fund ("The Common Fund"), those shares are reported as beneficially
owned by RCBA L.P. The Common Fund is principally engaged in the business of
managing investments for educational institutions. The principal administrative
office of The Common Fund is located at 450 Post Road East, Westport,
Connecticut 06881-0909. The Common Fund disclaims membership in a group with
any of the Reporting Persons, and disclaims beneficial ownership of any shares
held by the Reporting Persons.
Voting and investment power concerning the above shares are held solely by RCBA
L.P. The Reporting Persons therefore may be deemed to be members in a
<PAGE> 6
group, in which case each Reporting Person would be deemed to have beneficial
ownership of an aggregate of 5,758,700 shares of the Common Stock, which is
9.6% of the outstanding Common Stock. As the sole general partner of RCBA L.P.,
RCBA Inc. is deemed the beneficial owner of the securities over which RCBA L.P.
has voting and investment power. As Chairman, director and a substantial
shareholder of RCBA Inc., Richard C. Blum might be deemed to be the beneficial
owner of the securities beneficially owned by RCBA Inc.
CUSIP NO. 72813P-10-0 SCHEDULE 13D
Although Mr. Blum is joining in this Schedule as a Reporting Person, the filing
of this Schedule shall not be construed as an admission that he, or any of the
other shareholders, directors or executive officers of RCBA Inc. is, for any
purpose, the beneficial owner of any of the securities that are beneficially
owned by RCBA Inc.
(c) During the last 60 days, the Reporting Persons purchased the following
shares of Common Stock in the open market:
<TABLE>
<CAPTION>
Trade Date Shares Price/Share
- ---------- ------- -----------
<S> <C> <C>
04-09-98 5,600 14.48
04-09-98 1,400 14.49
04-14-98 60,400 14.07
04-14-98 8,800 14.07
04-14-98 21,100 14.07
04-14-98 10,900 14.07
04-14-98 5,700 14.07
04-14-98 4,100 14.07
04-16-98 7,500 14.25
04-20-98 10,000 14.50
04-23-98 11,400 15.50
04-23-98 1,600 15.50
04-23-98 2,800 15.50
04-23-98 11,100 15.50
04-23-98 2,500 15.50
04-23-98 400 15.53
04-27-98 6,900 15.25
04-27-98 1,000 15.25
04-27-98 1,800 15.25
04-27-98 5,800 15.25
04-27-98 1,300 15.25
04-27-98 300 15.25
05-01-98 4,200 15.09
05-01-98 600 15.09
05-01-98 1,100 15.09
05-01-98 3,200 15.09
05-01-98 700 15.11
05-01-98 200 15.15
</TABLE>
<PAGE> 7
(d) and (e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
Item 6 is amended as follows:
None of the Reporting Persons or, to the best knowledge of the Reporting
Persons, the other persons named in Item 2, is a party to any contract,
arrangement, understanding or relationship with respect to any securities of
the Issuer, including but not limited to the transfer or voting of any
securities of the Issuer, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of profits or
loss, or the giving or withholding of proxies, except (i) as previously
CUSIP NO. 72813P-10-0 SCHEDULE 13D
disclosed, (ii) as noted above, RCBA L.P. has voting and investment power of
the shares held by it for the benefit of the Common Fund and (iii) agreements
entered into on June 1, 1998, attached hereto as Exhibits B, C and D, pursuant
to which (a) the Reporting Persons have agreed to acquire an additional six
million (6,000,000) shares of the securities of the Issuer, (b) the Issuer has
agreed to elect two persons designated by the Reporting Persons to the Board of
Directors of the Issuer, (c) the Reporting Persons and other shareholders of
the Issuer have agreed to vote their shares in support of all nominees for
director nominated by the Board of Directors,(d) the Reporting Persons have
agreed to limit their acquisition of additional shares to two million
(2,000,000) and (e) the Issuer has granted certain registration rights to the
Reporting Persons.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit B Stock Purchase Agreement
Exhibit C Stockholders Agreement
Exhibit D Registration Rights Agreement
<PAGE> 8
SIGNATURES
After reasonable inquiry and to the best of our knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
Dated: June 2, 1998
RICHARD C. BLUM & ASSOCIATES, L.P. RICHARD C. BLUM & ASSOCIATES, INC.
<TABLE>
<S> <C> <C>
By /s/ Murray A. Indick By /s/ Murray A. Indick
------------------------------- -----------------------------------
Murray A. Indick Murray A. Indick
Managing Director Managing Director, General Counsel
and General Counsel and Secretary
/s/ Murray A. Indick
---------------------------------------
RICHARD C. BLUM
By Murray A. Indick, Attorney-in-Fact
</TABLE>
<PAGE> 1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is entered into as of
June 1, 1998 between J.W. Childs Equity Partners, L.P. (the "Seller"), RCBA
Playtex, L.P. (the "Buyer"), and Richard C. Blum & Associates, Inc. (the
"Guarantor").
BACKGROUND
A. The Seller is the owner of a total of in excess of six million
(6,000,000) shares of Common Stock (the "Shares") of Playtex Products, Inc., a
Delaware corporation (the "Company").
B. Richard C. Blum & Associates, L.P., a California limited partnership
("RCBA"), is the general partner of RCBA Playtex, L.P., and RCBA is also the
beneficial owner of shares of the Company through limited partnerships for which
it serves as general partner and managed accounts for which it serves as
investment adviser.
C. The Seller desires to sell, and the Buyer desires to purchase, all of
the Shares upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Basic Transaction.
(a) Purchase of Shares. Pursuant to the terms and conditions set
forth below, the Seller shall sell 6,000,000 Shares to Buyer, and Buyer shall
purchase those Shares from Seller. Seller may assign its rights in whole or in
part at any time and from time to time before the Closing to sell Shares
hereunder to any one or more of those persons listed on Schedule A hereto, so
long as (i) such assignees become signatories to this Agreement, (ii) RCBA shall
be reasonably satisfied they have the capacity to perform the obligations of
Seller in respect of their Shares, and (iii) the aggregate number of Shares
subject to this Agreement is 6,000,000. Buyer may assign its rights to purchase
some or all of its Shares to any of its Affiliates listed on Schedule B hereto,
all of whom are presently stockholders of the Company.
(b) Purchase Price. The purchase price is $13.25 per Share, for a
total purchase price of $79.5 million for the 6,000,000 Shares.
2. Conditions; Closing.
(a) Buyer's Conditions. The Buyer's obligations under this Agreement
are conditioned upon (i) the Company's execution of a Stockholders Agreement
with the Buyer, (ii) all of the Shares being sold to the Buyer, (iii) the
waiting period under the Hart-Scott-Rodino Antitrust Improvements Acts of 1976
("HSR") shall have expired or been terminated, to the extent applicable, (iv)
there shall be no judgment, injunction, order or decree enjoining the Buyer from
consummating the transactions contemplated by this Agreement, (v) the
representations and warranties of Seller and the Guarantor shall be true and
correct, (vi) the Company's performance of its obligations under a certain
Letter Agreement dated June 1, 1998 with the Seller, and (vii)
1
<PAGE> 2
receipt by the Seller of a written consent to the sale by John W. Childs and
Steven G. Segal of shares of Common Stock from Donaldson Lufkin & Jenrette
International ("DLJ Consent").
(b) Seller's Conditions. The Seller's obligations under this
Agreement are conditioned upon (i) all of the Shares being bought by the Buyer,
(ii) the waiting period under the HSR shall have expired or been terminated, to
the extent, applicable, (iii) there shall be no judgment, injunction, order or
decree enjoining the Seller from consummating the transactions contemplated by
this Agreement, (iv) the representations and warranties of Buyer and Guarantor
shall be true and correct, (v) the Company's performance of its obligations
under a certain Letter Agreement dated June 1, 1998 with the Seller, and (vi)
receipt by the Seller of a written consent to the sale by John W. Childs and
Steven G. Segal of shares of Common Stock from Donaldson Lufkin & Jenrette
International ("DLJ Consent").
(c) Settlement Date. If the conditions in Sections 2(a) and 2(b) are
satisfied or waived, settlement (the "Closing") shall occur one (1) business day
after the expiration or termination of the waiting period under the HSR. In
exchange for the Seller's good delivery of the Shares being transferred at
settlement, the Buyer will wire transfer immediately available funds into the
Seller's account an amount equal to the purchase price of the Shares being
transferred, pursuant to wire transfer instructions to be provided by the Seller
to RCBA.
(d) Termination. This Agreement may be terminated by Seller or Buyer
if the Closing has not occurred on or before July 31, 1998. If this Agreement is
terminated, the Agreement shall become void and of no effect, except that any
party shall remain liable for any breach of his obligations prior to
termination.
3. Representations of Seller. The Seller represents, warrants and
covenants to the Buyer that:
(a) Ownership. Such Seller owns its Shares free and clear of any
pledge, lien, charge, claim, security interest or other encumbrance of any kind,
nature or description. Seller has been assured by the Company that such Seller's
Shares are validly issued, fully paid and non-assessable.
(b) Authority and Compliance. Subject to receipt of the DLJ Consent,
such Seller has full power and authority to transfer its Shares and has complied
with or will comply with all legal requirements, if any, in connection with the
sale of its Shares. Subject to receipt of the DLJ Consent, such transfer will
not violate the rights of any third party.
(c) No Restrictions. Subject to receipt of the DLJ Consent, the
Shares being transferred by such Seller are either free of any transfer
restrictions applicable to such Seller or, if there are any transfer
restrictions, such Seller has received assurances from the Company and/or its
counsel that such restrictions will not prevent the transfer of such Shares
pursuant to the terms set forth in this Agreement.
4. Representations of Buyer. The Buyer represents, warrants and
covenants to the Seller that:
(a) Accredited. Such Buyer is or will be an accredited investor as
defined in Regulation D under The Securities Act of 1933, as amended (the
"Securities Act").
2
<PAGE> 3
(b) Investment Intent. The Shares being acquired by the Buyer are
being acquired for investment for Buyer's own account, and not with a view to a
prompt distribution of any part thereof.
(c) Transfer. Such Buyer understands that it must bear the economic
risk of this investment in the Shares for an indefinite period of time because
such Shares cannot be transferred by such Buyer unless such transfer is
registered under the Securities Act or an exemption from such registration is
available, and such share certificates will bear a legend to such effect.
(d) Authority and Compliance. Such Buyer has or will have full power
and authority to purchase its Shares and has complied with or will comply with
all legal requirements, if any, in connection with the purchase of its Shares.
4A. Representations and Warranties of Guarantor. The Guarantor
represents, warrants and covenants to the Seller that:
(a) Authority. Such Guarantor has the full power and authority to
(i) unconditionally guarantee the obligations of the Buyer pursuant to this
Agreement and (ii) perform all of such obligations in the place of the Buyer in
the event the Buyer fails to so perform.
(b) Financial Capability. The Guarantor has sufficient net worth to
pay the aggregate purchase price for the Shares in accordance with the
provisions of this Agreement.
5. Miscellaneous.
(a) Further Action. Each party agrees to use best efforts to take,
or cause to be taken, all action and to do, or cause to be done, all things
necessary, proper or advisable to consummate and make effective the transactions
contemplated by this Agreement.
(b) Entire Agreement; Successors and Assigns. This Agreement
constitutes the entire understanding among the parties with regard to the
subjects hereof, superseding all prior understandings, agreements,
representations and negotiations, whether oral or written. The terms and
conditions of this Agreement will inure to the benefit of, and be binding upon,
the respective executors, administrators, heirs, successors and assigns of the
parties.
(c) Choice of Law. This agreement will be interpreted and enforced
in accordance with the laws of the State of Delaware as applied to contracts
executed and performed entirely therein.
(d) Counterparts. This Agreement may be signed in any number of
counterparts and by facsimile, and when so signed and delivered will have the
same effect as if all signatures appeared on the same document.
(e) Notices. All notices required or permitted under this Agreement
must be given in writing (which may include facsimile). All notices will be
effective upon the earlier of (i) receipt (including confirmation that a
facsimile has been received) or (ii) five business days after being deposited in
the U.S. mail or two business days after being delivered to an overnight
3
<PAGE> 4
courier, in each case properly addressed as set forth on Schedule A or B (as the
case may be), as such address may be changed by proper notice to the other
parties.
(f) Interpretation. All parties have been assisted by counsel in
connection with this Agreement. The normal rule of construction that any
ambiguity will be resolved against the drafting party will not be used in the
interpretation of this Agreement.
(g) Gender and Number. As the context so requires, (i) the masculine
gender will include the feminine and neuter, and vice versa, and (ii) the
singular will include the plural, and vice versa.
(h) Amendment of Agreement. This Agreement may be amended only by a
written instrument signed by all of the parties.
(i) Severability. If any provision of this Agreement or the
application of any such provision to any party is held by a court of competent
jurisdiction to be contrary to law, such provision will be deemed amended to the
minimum extent possible to comply with such law, and the remaining provisions of
this Agreement will remain in full force and effect.
(j) Attorneys' Fees. If it becomes necessary for any party to
initiate legal action or any other proceeding to enforce, defend or construe
such party's rights or obligations under this Agreement, the prevailing party
will be entitled to reasonable costs and expenses, including attorneys' fees and
costs, incurred and paid in connection with such action or proceeding.
(k) Fees and Expenses. The Seller, on the one hand, and the Buyer,
on the other, shall each bear their own respective fees and costs in connection
with the negotiation and execution of this Agreement and the consummation of the
transactions contemplated hereby, including the payment of any commission,
finder's fee or similar payment because of any act or omission by such party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
4
<PAGE> 5
IN WITNESS WHEREOF, the parties hereby have executed this Agreement as of
the date set forth above.
THE SELLER:
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:
------------------------------
THE BUYER:
RCBA Playtex, L.P.
By: Richard C. Blum & Associates, L.P.,
Its general partner
By: Richard C. Blum & Associates, Inc.,
Its general partner
By:
------------------------------
5
<PAGE> 6
THE GUARANTOR:
Richard C. Blum & Associates, Inc.
By:
-----------------------------
Its: Managing Director
6
<PAGE> 7
SCHEDULE A
Permitted Assignee of Seller
<TABLE>
<S> <C>
Bock Family Trust 4,298
John W. Childs 272,902
Richard S. Childs 11,786
James E. Childs 11,786
Adam T. Felid 5,663
Glenn A. Hopkins 17,894
Jerry D. Horn 19,347
Lambros J. Lambros 24,773
Stephanie L. Mansfield 2,149
Lawrence & Edith Mansfield 1,074
Jenny Childs Preston 1,039
Raymond B. Rudy 58,394
Steven G. Segal 67,558
Steven G. Segal 1995 Irrevcable Trust 12,221
SGS 1995 Family Limited Partnership 4,847
SGS III Family Limited Partnership 3,820
Adam L. Suttin 17,894
Suttin Family Trust 9,043
The Dowds Family Investment Trust 1,827
Gagan Verma 2,686
Stephen H. Wise 2,686
Timothy J. Healy 5,333
Michael Cox 1,500
Teresita Eugenio 650
Kenneth M. Evans 5,333
Bruce A. Goldsmith 2,133
Peter Gower 1,875
Neil P. Guller 3,860
Lee Jacobs 1,500
Koss Trust 85,330
Cheryl Lawler 1,875
Kim Levine 2,796
Donald W. Miller 3,199
Dennis L. Moore 10,666
Donald G. Morgan 7,901
Joseph M. Pachella 3,929
Leslie A. Paparone 8,180
Jay E. Politi 1,033
Kenneth F. Reilly 2,133
Joel Slank 2,796
Mario E. Soussou 35,314
James D. Tates 1,066
Sharad B. Tilak 10,666
Marianne Wojcicki 2,133
-----
754,918
=======
</TABLE>
<PAGE> 8
SCHEDULE B
BUYER'S AFFILIATES
Stinson Capital Partners, L.P.
Stinson Capital Partners II, L.P.
BK Capital Partners IV, L.P.
Stinson Capital Fund (Cayman), Ltd.
Insurance Company Supported Organizations Pension Plan
United Brotherhood of Carpenters and Joiners of America Local Unions and
Councils Pension
Fund
The Carpenters Pension Trust for Southern California
The Common Fund
B-1
<PAGE> 1
EXECUTION COPY
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (the "Agreement") dated as of June 1, 1998,
between PLAYTEX PRODUCTS, INC., a Delaware corporation (the "Company"), and RCBA
PLAYTEX, L.P., a Delaware limited partnership (the "Principal Stockholder").
RECITALS
WHEREAS, J.W. Childs Equity Partners, L.P. (the "Seller") and the
Principal Stockholder are parties to a Stock Purchase Agreement, dated as of
June 1, 1998 (the "Purchase Agreement"), pursuant to which the Principal
Stockholder will purchase from the Seller, an aggregate 6,000,000 shares (the
"Purchased Shares") of common stock of the Company, par value $.01 ("Common
Stock"); and
WHEREAS, upon the Closing (as defined in the Purchase Agreement,
referred to herein as the "Effective Date"), the Principal Stockholder will
hold, in aggregate, 11,758,700 shares of the Common Stock (the "Shares");
NOW, THEREFORE, in consideration of the covenants and agreements set
forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions.The following terms, whenever used herein, shall
have the following meanings for all purposes of this Agreement.
<PAGE> 2
2
"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.
"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.
"Transfer" or "Transferred" means, in relation to any share of
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 Common Stock, any pledge,
mortgage, hypothecation or grant of a security interest therein.
"Person" means any individual, firm, corporation, partnership,
limited liability company or partnership, trust, incorporated or unincorporated
association, joint
<PAGE> 3
3
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.
ARTICLE II
DIRECTORS
2.1 Increase in the Size of the Board of Directors. The Company
hereby agrees that it will upon or immediately following the Effective Date (i)
increase the size of its Board of Directors (the "Board") to a number necessary
to effect clause (ii) of this Section 2.1, and (ii) cause two of the vacancies
thus created (or created by resignation) to be filled by Richard C. Blum and
Jeffrey W. Ubben.
2.2 Nomination of Designated Directors. The Company hereby agrees
that for so long as the Principal Stockholder owns, in the aggregate, at least
11% of the outstanding shares of Common Stock, the Company 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, two directors (each a
"Designated Director") designated by the Principal Stockholder are members of
the Board, provided, that (i) one Designated Director is either Jeffrey W. Ubben
or N. Colin Lind for so long as he is an employee, officer, director, member or
partner of the Principal Stockholder or any of its Affiliates, (ii) any other
Designated Director shall be approved by a majority of the members of the Board
who are either Purchaser Directors (as defined in the By-Laws) or officers of
the Company (which such consent shall not be unreasonably
<PAGE> 4
4
withheld), and (iii) that the proposed Designated Directors are nominated in
accordance with the By-Laws.
2.3 Stockholder Meeting; Proxy Material; By-Laws Amendment. The
Company shall cause proxies 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") at the annual meeting of the
Company's stockholders to be held in 1999 (the "Stockholders Meeting"). In
connection with the Stockholders Meeting, the Company: (A) shall 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 taking such actions would be inconsistent
with the Board's fiduciary duties 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
<PAGE> 5
5
requested by the Principal Stockholder insofar as such changes relate to any
matters relating to the Principal Stockholder.
2.4 Voting for Directors. For so long as the Principal Stockholder
owns at least 11% of the outstanding shares of Common Stock, the Principal
Stockholder agrees that it shall vote (and shall cause each of its affiliates
owning, directly or indirectly, any shares of Common Stock to vote) all the
shares of Common Stock owned directly or indirectly by the Principal Stockholder
or such Affiliate in favor of all the persons nominated by the Board in
accordance with the Amended By- Laws; provided this Section 2.4 shall terminate
upon the tenth anniversary of the Effective Date.
ARTICLE III
TRANSFERS OF SECURITIES
3.1 Restrictions on Transfer of Company Common Stock. The
Principal Stockholder agrees that, from the Effective Date to the date 364 days
after the Effective Date, it shall not (i) Transfer any of the Purchased
Shares, by distribution or otherwise, to any of its shareholders, partners,
members or owners (in each case other than Affiliates), (ii) sell any of the
Purchased Shares pursuant to Rule 144 under the 1933 Act.
3.2 Transfers Subject to Compliance with Securities Laws. After
the Effective Date, no Shares may be Transferred by the Principal Stockholder
(other than pursuant to an effective registration statement under the 1933 Act)
unless such
<PAGE> 6
6
Principal Stockholder 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) After the
Effective Date, so long as the Purchased Shares are not sold pursuant to an
effective registration statement under the 1933 Act or pursuant to Rule 144
under the 1933 Act, the Purchased 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:
"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 Purchased Shares are
subject to the terms and conditions of Section 3.1, the Purchased Shares shall
be subject to a stop-transfer order and the certificates shall bear the
following legend:
"UNTIL JUNE __, 1999, 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 JUNE [1], 1998, A
COPY OF WHICH IS ON FILE WITH THE ISSUER OF THESE SHARES AND WILL BE
FURNISHED BY THE ISSUER OF THESE
<PAGE> 7
7
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
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, and
release the applicable stop-transfer order.
ARTICLE IV
RESTRICTIONS ON PURCHASE
4.1 Restricted Purchases. From the Effective Date through the
fifth anniversary of the Effective Date, the Principal Stockholder 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 shares of Common
Stock (or any options, warrants, convertible securities, or other rights to
purchase or subscribe for Common Stock), if immediately thereafter the number
of shares of Common Stock (including, for this purpose, shares of Common Stock
issuable pursuant to any options, warrants, convertible securities, or other
rights to purchase or subscribe for Common Stock) beneficially owned (within
the meaning of Rule 13d-3 of the Securities Exchange Act of 1934) by the
Principal
<PAGE> 8
8
Stockholder and its Affiliates exceeds the sum of (i) the number of Shares as of
the Effective Date (the "Effective Date Shares") plus (ii) 2,000,000 (in the
case of each of clause (i) and (ii), as adjusted for stock splits, combination
of stock, stock dividends or similar recapitalizations by the Company), provided
however that nothing in this Section 4.1 shall prohibit the Principal
Stockholder or any of its Affiliates from acquiring any Common Stock in
accordance with the provisions of Section 4.2 below.
4.2 Preemptive Rights.
(a) From and after the Effective Date, except as provided
below, the Company shall not issue, sell or transfer or allow any of its
subsidiaries to issue, sell or transfer any Common Stock (or any options,
warrants, convertible securities, or other rights to purchase or subscribe for
Common Stock) (collectively, the "Offered Securities") unless the Principal
Stockholder is offered in writing the right to purchase, at the same price and
on the same terms proposed to be issued and sold, a portion of the Offered
Securities (the "Stated Percentage") equal to the product of (i) the total
number of Offered Securities multiplied by (ii) a fraction, the numerator of
which is the lesser of (x) the number of Effective Date Shares or (y) the number
of shares of Common Stock then owned by the Principal Stockholder and the
denominator of which is the total number of the then outstanding shares of
Common Stock, computed on a fully diluted basis (the "Preemptive Rights"). If
the Offered Securities are being issued in connection with the issuance of any
other securities, or incurrence of any debt, by the Company ("Other Securities
or Debt"), each Principal Stockholder shall be required to purchase its Stated
Percentage of such Other Securities or Debt in
<PAGE> 9
9
order to exercise its Preemptive Rights. The Principal Stockholder shall have
the right, during the period specified in Section 4.2(b), to accept the offer
for any or all of their portion of the Offered Securities.
(b) Any Principal Stockholder who does not deliver to the
Company written notice of acceptance of any offer made pursuant to Section
4.2(a) within 10 business days after such Principal Stockholder's receipt of
such offer shall be deemed to have waived its right to purchase the Offered
Securities which are the subject of such offer (including, if the Offered
Securities include convertible securities, options, or other rights to acquire
other securities, such other securities.)
(c) Section 4.2 (a) shall not apply to (i) the grant of
options to purchase Common Stock, or the issuance of shares of Common Stock, to
employees of the Company or any of its subsidiaries, (ii) shares of Common Stock
issuable upon exercise of any option, warrant, convertible security or other
rights to purchase or subscribe for Common Stock which, in each case, had been
issued in compliance with Section 4.2(a) or under Section 4.2(c)(i), (iii)
securities issued pursuant to any stock split, combination of stock, stock
dividend or other similar stock recapitalization, (iv) shares of Common Stock
issued pursuant to an employee stock option or similar plan, (v) shares of
Common Stock issued in connection with the acquisition of stock or assets or of
any other Person, (vi) shares of Common Stock issued pursuant to any registered
public offering under the 1933 Act, or (vii) any issuance of Offered Securities
occurring after the Principal owns less than 11% of the outstanding shares of
Common Stock.
<PAGE> 10
10
ARTICLE V
MISCELLANEOUS
5.1 Amendment. This Agreement may be altered or amended only with
the consent of the Company and the Principal Stockholder.
5.2 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.
5.3 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 Principal Stockholder 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 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.
<PAGE> 11
11
5.4 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 R. Gallagher,
Chief Executive Officer
Telecopier: (203) 341-4260
with a copy to:
Haas Wheat & Partners Incorporated
300 Crescent Court
Suite 700
Dallas, Texas 75201
Attention: Robert B. Haas
Telecopier: (214) 871-8364
and another 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 Principal Stockholder, to:
Richard C. Blum & Associates, L.P.
909 Montgomery Street, Suite 400
San Francisco, California 94133
Attention: Murray A. Indick, Esq.
Telecopier: (415) 434-3130
With a copy to:
<PAGE> 12
12
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037
Attention: Michael R. Klein, Esq.
Telecopier: (202) 663-6363
5.5 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.
5.6 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.
5.7 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.
5.8 Entire Agreement. This Agreement, the Stock Purchase 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.
<PAGE> 13
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
PLAYTEX PRODUCTS, INC.
By:
----------------------------------
Name:
Title:
RCBA PLAYTEX, L.P.
By:
----------------------------------
Name:
Title:
<PAGE> 14
14
FORM OF AMENDMENT TO
THE BY-LAWS OF THE COMPANY
A. The existing Section 15(b)B shall be replaced in its entirety 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 11% of the outstanding shares of common stock of the Company or
(2) the tenth anniversary of the Effective Date, two of the Non-
Purchaser Directors shall be Designated Directors, provided, that
(1) one Designated Director is either Jeffrey W. Ubben or N. Colin
Lind for so long as he is an employee, officer, director, member or
partner of the Principal Stockholder or any of its Affiliates, and
(2) any other Designated Director shall be approved by a majority of
the members of the Board who are either Purchaser Directors or
officers of the Company, which approval shall not be unreasonably
withheld. The "Effective Date" shall have the meaning given to that
term in the Stockholders Agreement, dated as of June 1, 1998, among
the Company, and RCBA PLAYTEX, L.P. (the "Principal Stockholder").
The "Designated Directors" means the Directors designated by the
Principal Stockholder."
<PAGE> 1
EXECUTION COPY
===============================================================================
REGISTRATION RIGHTS AGREEMENT
among
PLAYTEX PRODUCTS, INC.,
and
RCBA PLAYTEX, L.P.
_______________________________________
Dated as of June 1, 1998
_______________________________________
===============================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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Page
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<S> <C> <C>
1. Background ...................................................................................................... 1
2. Registration Under Securities Act, etc. ......................................................................... 1
2.1 Registration on Request ................................................................................. 1
2.2 Incidental Registration ................................................................................. 4
2.3 Registration Procedures ................................................................................. 6
2.4 Underwritten Offerings .................................................................................. 9
2.5 Preparation; Reasonable Investigation ................................................................... 11
2.6 Limitations, Conditions and Qualifications to Obligations under
Registration Covenants .................................................................................. 11
2.7 Indemnification ......................................................................................... 11
3. Definitions ..................................................................................................... 16
4. Rule 144 ........................................................................................................ 18
5. Amendments and Waivers .......................................................................................... 18
6. Nominees for Beneficial Owners .................................................................................. 19
7. Notices ......................................................................................................... 19
8. Assignment ...................................................................................................... 20
9. Calculation of Percentage Interests in Registrable Securities ................................................... 20
10. No Inconsistent Agreements ...................................................................................... 20
11. Remedies ........................................................................................................ 20
12. Severability .................................................................................................... 20
13. Entire Agreement ................................................................................................ 21
14. Headings ........................................................................................................ 21
15. Governing Law ................................................................................................... 21
16. Counterparts .................................................................................................... 21
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
17. Termination ..................................................................................................... 21
</TABLE>
ii
<PAGE> 4
1
REGISTRATION RIGHTS AGREEMENT, dated as of June 1, 1998,
between PLAYTEX PRODUCTS, INC., a Delaware corporation (the "Company"), and
RCBA PLAYTEX, L.P. (the "Principal Stockholder").
The parties hereby agree as follows:
1. Background. Pursuant to a Stock Purchase Agreement,
dated as of June 1, 1998, among J.W. Childs Equity Partners, L.P. (the
"Seller") and the Principal Stockholder (the "Purchase Agreement"), the
Principal Stockholder has agreed to purchase from the Seller, and the Seller
has agreed to sell to the Principal Stockholder, an aggregate of 6,000,000
shares (the "Shares") of the Company's Common Stock, par value $.01 per share.
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 364 days after the Closing Date (as defined in the Purchase Agreement,
hereinafter referred to as the "Effective Date"), upon the written request 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
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 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
<PAGE> 5
2
required with respect to securities being registered pursuant to the Other
Registration Rights Agreements.
(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 not be deemed to have
been effected (i) unless 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; (ii) if 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 or (iii) if 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 Company and shall be
reasonably acceptable to the Selling Holders of more than 50% of each class of
Registrable Securities to be included in such registration.
(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 Selling Holders of 66-2/3% of the Registrable Securities
requested to be included in such registration, the Company, except as provided
in the following sentence, will include in such registration, to the extent of
the number and type which the Company is so advised can be sold in such
offering, first, Registrable Securities requested to be included in such
registration, pro rata (based on the number of Registrable Securities requested
by each of the Selling Holders) among the Selling Holders requesting such
registration, second, such Registrable Securities (as defined in the Other
Registration Rights Agreements and
<PAGE> 6
3
hereinafter referred to as "Third Party Securities") requested to be included
in such registration pursuant to the Other Registration Rights Agreements, pro
rata (based on the number of Third Party Securities requested by each
Securityholder requesting such registration) among the Securityholders
requesting such registration, and third all securities to be sold by the
Company for its own account. Notwithstanding the foregoing, if the total
number of Registrable Securities requested to be included in any registration
cannot be included, 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 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 Section 2.1 hereof. 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 in such withdrawn registration could have
been included therein, the Registration Expenses incurred by the Company in
connection with such withdrawn registration 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.
(g) Limitations on Registration Requests.
Notwithstanding anything in this Section 2.1 to the contrary, in no event
will the Company be required to:
(i) effect, in the aggregate, more
than two registrations pursuant to this Section 2.1;
(ii) effect 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
the Board of Directors of the Company determines that effecting a
second registration within the six- month period would not have a
material adverse effect on the market price of the Common Stock; or
(iii) effect a registration pursuant
to Section 2.1 covering less than 25% of the number of outstanding
Registrable Securities as of the Effective Date.
(h) Expenses. The Company will pay all
Registration Expenses in connection with any registrations requested pursuant
to this Section 2.1; provided, that if the registration is requested pursuant
to this Section 2.1 within 364
<PAGE> 7
4
days of the effective date (within the meaning of Section 2.1(d)) of a
registration statement effected pursuant to this Section 2.1, all Registration
Expenses with respect to such requested registration shall be paid by the
Selling Holders, pro rata (based on the number of Registrable Securities
included in such registration by each Selling Holder).
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") made as
promptly as practicable and in any event within 30 days after the receipt of
any such notice from the Company (15 days if the Company states in such written
notice or gives telephonic or telecopied notice to all registered holders of
Registrable Securities, with written confirmation to follow promptly
thereafter, that (i) such registration will be on Form S-3 and (ii) such
shorter period of time is required because of a planned filing date) (which
request shall specify the Registrable Securities intended to be disposed of by
such Requesting Holder), the Company will use its best efforts to effect the
registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register by the Requesting Holders thereof;
provided, that prior to the effective date of the registration statement filed
in connection with such registration, immediately upon notification to the
Company from the managing underwriter of the price at which such securities are
to be sold, if such price is below the price which any Requesting Holder shall
have indicated to be acceptable to such Requesting Holder, the Company shall so
advise such Requesting Holder of such price, and such Requesting Holder shall
then have the right to withdraw its request to have its Registrable Securities
included in such registration statement; provided, further, however, that if,
at any time after giving written notice of its intention to register any
securities and prior to the effective date of the registration statement filed
in connection with such registration, the Company shall determine for any
reason not to register or to delay registration of such securities, the Company
may, at its election, give written notice of such determination to each
Requesting Holder of Registrable Securities and (x) in the case of a
determination not to register, shall be relieved of its obligation to register
any Registrable Securities in connection with such registration (but not from
any obligation of the Company to pay the Registration Expenses in connection
therewith), 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
<PAGE> 8
5
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 Third Party Securities requested to be included in
such registration would materially adversely affect such offering, and the
Company has so advised the Requesting Holders, then the Company will include in
such registration, to the extent of the number and type which the Company is so
advised can be sold in (or during the time of) such offering, first, (x) if
such registration is being effected pursuant to the request of Securityholders
under provisions of one of the Other Registration Rights Agreements comparable
to Section 2.1, all Third Party Securities so requested by such Securityholders
under such Other Registration Rights Agreement, or (y) if such registration is
not being so effected, all securities of the Company to be sold for its own
account, second such Registrable Securities requested to be included in such
registration pursuant to this Agreement and such Third Party Securities
requested to be included in such registration pursuant to the provisions of the
Other Registration Rights Agreements comparable to this Section 2.2, pro rata
(based on the number of Registrable Securities requested to be included therein
by each Selling Holder and the number of Third Party Securities requested to be
included therein by each Securityholder) among such Selling Holders and the
Securityholders, and third, if clause (x) of this Section 2.2(b) applies, all
securities proposed by the Company to be sold for its own account.
(c) Expenses. The Company will pay all
Registration Expenses in connection with any registration contemplated pursuant
to this Section 2.2.
2.3 Registration Procedures. If and whenever the
Company is required to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in 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(b), Registrable
Securities) at any time prior to the effective date of the
registration statement relating thereto;
<PAGE> 9
6
(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)(i) 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 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;
<PAGE> 10
7
(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 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
<PAGE> 11
8
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 (i) such information
regarding such seller and the distribution of such securities as the Company
may from time to time reasonably request in writing and (ii) if requested by
the Company an executed custody agreement and power of attorney in form and
substance reasonably satisfactory to the Company with respect to the
Registrable Securities to be registered pursuant to this Agreement.
Each holder of Registrable Securities agrees that, upon
receipt of any notice from the Company of the happening of any event of the
kind described in subdivision (vii) of this Section 2.3, such holder will
forthwith discontinue such holder's disposition of Registrable Securities
pursuant to the registration statement relating to such Registrable Securities
until such holder's receipt of the copies of the supplemented or amended
prospectus contemplated by subdivision (vii) of this Section 2.3 and, if so
directed by the Company, will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies, then in such holder's possession
of the prospectus relating to such Registrable Securities current at the time
of receipt of such notice.
2.4 Underwritten Offerings.
(a) 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 each such holder 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
<PAGE> 12
9
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 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
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
<PAGE> 13
10
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.
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
<PAGE> 14
11
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 (i) such untrue statement or omission is completely
corrected in an amendment or supplement to such prospectus or prospectus
supplement, the seller of the Registrable Securities has an obligation under
the Securities Act to deliver a prospectus or prospectus supplement in
connection with such sale of Registrable Securities and the seller of
Registrable Securities thereafter fails to deliver such prospectus or
prospectus supplement as so amended or supplemented prior to or concurrently
with the sale of Registrable Securities to the person asserting such loss,
claim, damage or liability after the Company has furnished such seller with a
sufficient number of copies of the same or (ii) if the seller received written
notice from the Company of the existence of such an untrue statement or such an
omission and the seller continued to dispose of Registrable Securities prior to
the time of the receipt of either (a) an amended or supplemented prospectus or
prospectus supplement that completely corrected the untrue statement or the
omission or (b) a notice from the Company that the use of the existing
prospectus or prospectus supplement may be resumed. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such seller or underwriter or any such director, officer, partner,
agent, affiliate or controlling person and shall survive the transfer of such
securities by such seller or underwriter.
(b) Indemnification by the Sellers. As
a condition to including any Registrable Securities in any registration
statement, the Company shall
<PAGE> 15
12
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 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
<PAGE> 16
13
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 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
<PAGE> 17
14
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:
"Childs Agreement" means the Registration Rights Agreement,
dated as of January 28, 1998, as amended, between Playtex Products, Inc. and
J.W. Childs Equity Partners L.P.
"Commission" means the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
"Common Stock" shall mean and include the Common Stock, par
value $.01 per share, of the Company and 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.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any superseding Federal statute, and the rules and regulations
promulgated thereunder, all as the same shall be in effect at the time.
Reference to a particular section of the Securities Exchange Act of 1934, as
amended, shall include a reference to the comparable section, if any, of any
such superseding Federal statute.
"HWH Agreement" means the Registration Rights Agreement dated
as of March 17, 1995, as amended, among the Company, HWH Capital Partners,
L.P., HWH Valentine Partners, L.P., and HWH Surplus Valentine Partner, L.P.
"Initiating Holder" is defined in Section 2.1.
"Other Registration Rights Agreement" means each of the HWH
Agreement and the Childs Agreement.
"Person" means any individual, firm, corporation, partnership,
limited liability company or partnership, trust, incorporated or unincorporated
association,
<PAGE> 18
15
joint venture, joint stock company, government (or an agency or political
subdivision thereof) or other entity of any kind and shall include any
successor (by merger or otherwise) of such entity.
"Registrable Securities" means any Shares, any other shares of
Common Stock owned by the Principal Shareholder as of the date of this
Agreement (the "Currently Held 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 securi ties 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 or
(d) they shall have ceased to be outstanding. All references to percentages of
Registrable Securities shall be calculated pursuant to Section 9.
"Registration Expenses" means all expenses incident to the
Company's performance of or compliance with Section 2, including, without
limitation, all registration and filing fees, all fees of the New York Stock
Exchange, Inc., other national securities exchanges or the National Association
of Securities Dealers, Inc., all fees and expenses of complying with securities
or blue sky laws, all word processing, duplicating and printing expenses,
messenger and delivery expenses, the fees and disbursements of counsel for the
Company and of its independent public accountants, including the expenses of
"comfort" letters required by or incident to such performance and compliance,
any fees and disbursements of underwriters customarily paid by issuers or
sellers of securities (excluding any underwriting discounts or commissions with
respect to the Registrable Securities) and the reasonable fees and expenses of
one counsel to the 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 or the Currently Held Shares any securities of the Company issued or
issuable with respect to any of the Shares or the Currently Held Shares by way
of a dividend or stock split or in
<PAGE> 19
16
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 each of the Other
Registration Rights Agreements, in each case other than the Company.
"Selling Holder" is defined in Section 2.1.
4. Rule 144. The Company shall take all actions
reasonably necessary to enable holders of Registrable Securities to sell such
securities without registration under the Securities Act within the limitation
of the provisions of (a) Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or (b) any similar rules or regulations hereafter
adopted by the Commission. Upon the request of any holder of Registrable
Securities, the Company will deliver to such holder a written statement as to
whether it has complied with such requirements.
5. Amendments and Waivers. This Agreement may be
amended with the consent of the Company and the Company may take any action
herein prohibited, or omit to perform any act herein required to be performed
by it, only if the Company shall have obtained the written consent to such
amendment, action or omission to act, of the holder or holders of at least
66-2/3% of the Registrable Securities affected by such amendment, action or
omission to act. Each holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any consent authorized by this Section
5, whether or not such Registrable Securities shall have been marked to
indicate such consent.
6. Nominees for Beneficial Owners. In the event that
any Registrable Securities are held by a nominee for the beneficial owner
thereof, the beneficial owner thereof may, at its election in writing delivered
to the Company, be treated as the holder of such Registrable Securities for
purposes of any request or other action by any holder or holders of Registrable
Securities pursuant to this Agreement or any determination of any number or
percentage of shares of Registrable Securities held by any holder or holders of
Registrable Securities contemplated by this Agreement. If the beneficial owner
of any Registrable Securities so elects, the Company may require
<PAGE> 20
17
assurances reasonably satisfactory to it of such owner's beneficial ownership
of such Registrable Securities.
7. Notices. All notices, demands and other
communications provided for or permitted hereunder shall be made in writing and
shall be by registered or certified first-class mail, return receipt requested,
telecopier, courier service or personal delivery:
(a) if to the Principal Stockholder, addressed to
it in the manner set forth in the Purchase Agreement, or at such other address
as it shall have furnished to the Company in writing in the manner set forth
herein;
(b) if to any other holder of Registrable
Securities, at the address that such holder shall have furnished to the Company
in writing in the manner set forth herein, or, until any such other holder so
furnishes to the Company an address, then to and at the address of the last
holder of such Registrable Securities who has furnished an address to the
Company; or
(c) if to the Company, addressed to it in the
manner set forth in the Purchase Agreement, or at such other address as the
Company shall have furnished to each holder of Registrable Securities at the
time outstanding in the manner set forth herein.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; when
delivered by a courier, if delivered by overnight courier service; three
business days after being deposited in the mail, postage prepaid, if mailed;
and when receipt is acknowledged, if telecopied.
8. Assignment. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and, with
respect to the Company, its respective successors and permitted assigns and,
with respect to the Principal Stockholder, any holder of at least 10% of the
number of outstanding Registrable Securities as of the Effective Date, subject
to the provisions respecting the minimum amount of Registrable Securities
required in order to be entitled to certain rights, or take certain actions,
contained herein. Except by operation of law, this Agreement may not be
assigned by the Company without the prior written consent of the holders of
66-2/3% of the Registrable Securities outstanding at the time such consent is
requested.
9. Calculation of Percentage Interests in Registrable
Securities. For purposes of this Agreement, all references to a percentage of
the Registrable Securities shall be calculated based upon the number of
Registrable Securities out standing at the time such calculation is made.
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10. No Inconsistent Agreements. The Company will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with the rights granted to the holders of Registrable Securities
in this Agreement. Without limiting the generality of the foregoing, the
Company will not hereafter enter into any agreement with respect to its
securities which grants, or modify any existing agreement with respect to its
securities to grant, to the holder of its securities in connection with an
incidental registration of such securities, higher priority to the rights
granted under Section 2.
11. 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.
12. 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.
13. Entire Agreement. This 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 supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
14. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
15. 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.
16. Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when
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so executed shall be deemed an original and all of which taken together shall
constitute one and the same instrument.
17. Termination. Upon termination of the Purchase
Agreement, in accordance with Section 2(d) thereof, this Agreement shall
terminate automatically. In addition, this Agreement shall terminate in the
event that Registrable Securities constitute less than 5% of the outstanding
Company's Common Stock.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their respective representatives
hereunto duly authorized as of the date first above written.
PLAYTEX PRODUCTS, INC.
By:
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Name:
Title:
RCBA PLAYTEX, L.P.
By:
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Name:
Title:
