-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QFaRHkv7+ox0Bqf+6nomRz+VWaM64nn3nViHy7oWfaF/0+ZhXIAGCmKbQnGsPH7R YDnsf2RlvMRBWCAiUk3e1g== 0000908737-98-000131.txt : 19980209 0000908737-98-000131.hdr.sgml : 19980209 ACCESSION NUMBER: 0000908737-98-000131 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19980206 SROS: NYSE GROUP MEMBERS: J.W. CHILDS ADVISORS, L.P. GROUP MEMBERS: J.W. CHILDS ASSOCIATES, INC. GROUP MEMBERS: J.W. CHILDS ASSOCIATES, L.P. GROUP MEMBERS: JW CHILDS EQUITY PARTNERS L P SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PLAYTEX PRODUCTS INC CENTRAL INDEX KEY: 0000842699 STANDARD INDUSTRIAL CLASSIFICATION: APPAREL & OTHER FINISHED PRODS OF FABRICS & SIMILAR MATERIAL [2300] IRS NUMBER: 510312772 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-45603 FILM NUMBER: 98524316 BUSINESS ADDRESS: STREET 1: 300 NYALA FARMS RD CITY: WESTPORT STATE: CT ZIP: 06880 BUSINESS PHONE: 2033414000 MAIL ADDRESS: STREET 1: 300 NYALA FARMS ROAD CITY: WESTPORT STATE: CT ZIP: 06880 FORMER COMPANY: FORMER CONFORMED NAME: PLAYTEX FP GROUP INC DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: JW CHILDS EQUITY PARTNERS L P CENTRAL INDEX KEY: 0000949014 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: ONE FEDERAL STREET CITY: BOSOTN STATE: MA ZIP: 02110 BUSINESS PHONE: 6177531100 MAIL ADDRESS: STREET 1: ONE FEDERAL STREET STREET 2: 21ST FLOOR CITY: BOSTON STATE: MA ZIP: 02110 SC 13D 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. )* Playtex Products, Inc. (Name of Issuer) Common Stock, Par Value $.01 per share (Title of Class of Securities) 72813P 10 0 (CUSIP Number) John W. Childs J.W. Childs Equity Partners, L.P. One Federal Street Boston, Massachusetts 02110 (617)753-1100 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) January 28, 1998 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box / /. Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D CUSIP No. 72813P 10 0 Page 2 of 12 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON J.W. Childs Equity Partners, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_| (b) |X| 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |_| 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 SOLE VOTING POWER NUMBER OF SHARES 7,855,764 BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 7,855,764 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,855,764 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_| 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13.05% 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 72813P 10 0 Page 3 of 12 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON J.W. Childs Advisors, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_| (b) |X| 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |_| 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 SOLE VOTING POWER NUMBER OF SHARES 7,855,764 BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 7,855,764 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,855,764 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_| 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13.05% 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 72813P 10 0 Page 4 of 12 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON J.W. Childs Associates, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_| (b) |X| 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |_| 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 SOLE VOTING POWER NUMBER OF SHARES 7,855,764 BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 7,855,764 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,855,764 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_| 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13.05% 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 72813P 10 0 Page 5 of 12 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON J.W. Childs Associates, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_| (b) |X| 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |_| 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 SOLE VOTING POWER NUMBER OF SHARES 7,855,764 BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 7,855,764 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,855,764 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_| 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13.05% 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 72813P 10 0 Page 6 of 12 Pages Item 1. Security and issuer. The class of equity securities to which this statement relates is Common Stock, $.01 par value per share ("Shares"), of Playtex Products, Inc., a Delaware corporation ("Playtex"), with principal executive offices at 300 Nyala Farms Road, Westport, Connecticut 06880. Item 2. Identify and background. This statement is being filed jointly by J.W. Childs Equity Partners, L.P. ("Childs"), a Delaware limited partnership, J.W. Childs Advisors L.P. ("JWC Advisors"), a Delaware limited partnership which is the general partner of Childs, J.W. Childs Associates, L.P. ("Associates L.P."), a Delaware limited partnership which is the general partner of JWC Advisors and J.W. Childs Associates, Inc. ("Associates Inc."), a Delaware corporation which is the general partner of Associates L.P. Childs, JWC Advisors, Associates L.P. and Associates Inc. are the "Reporting Persons". The agreement among the Reporting Persons relating to joint filing of this statement is attached as Exhibit 1 hereto. Each of the Reporting Persons is principally engaged in the business of investing through partnerships in securities. Information concerning the directors and executive officers of Associates, Inc. is contained in Schedule A attached hereto. The address of the principal business and office of each of the Reporting Persons is One Federal Street, Twenty-First Floor, Boston, Massachusetts 02110. During the last five years, neither the Reporting Persons nor, to the best knowledge of the Reporting Persons, any of the other persons named in this Item 2 or Schedule A hereto: (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors); or (ii) was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and amount of funds or other consideration. The consideration for the acquisition of Shares to which this statement relates was shares in Personal Care Holdings, Inc. ("PCH"). On January 28, 1998, PCH merged with and into PCG Acquisition Corp., a subsidiary of Playtex (the "Merger") in exchange for $91 million in cash and an aggregate of 9,257,375 Shares. As a result of the Merger, Childs acquired 7,855,764 Shares. Effective upon the consummation of the Merger, John W. Childs, the President of JWC Advisors, was appointed a director of Playtex. SCHEDULE 13D CUSIP No. 72813P 10 0 Page 7 of 12 Pages Item 4. Purpose of transaction. The transaction requiring the filing of this statement is described in Item 3 above. The transaction was entered into principally for investment purposes. Depending upon Childs' continuing review of its investments, Childs may (subject to any applicable securities laws) decide to sell all or any part of the Shares, although it has no current plans to do so. Except as set forth in this Item 4, the Reporting Persons do not have any plans or proposals which would related to or result in: (a) The acquisition by any person of additional securities of Playtex, or the disposition of securities of Playtex; (b) An extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving Playtex or any of its subsidiaries; (c) A sale or transfer of a material amount of assets of Playtex or any of its subsidiaries; (d) Any change in the present board of directors or management of Playtex including any plans or proposals to change the number or terms of directors or to fill any existing vacancies on the board; (e) Any material change in the present capitalization or dividend policy of Playtex; (f) Any other material change in Playtex's business or corporate structure; (g) Changes in Playtex's charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of Playtex by any person; (h) Causing a class of securities of Playtex to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) A class of equity securities of Playtex becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934; or (j) Any action similar to any of those enumerated above. SCHEDULE 13D CUSIP No. 72813P 10 0 Page 8 of 12 Pages Item 5. Interest in securities of the issuer. (a) Childs currently holds 7,855,764 Shares (constituting approximately 13.05% of the outstanding Shares, based upon the sum of the number reported by Playtex in its Quarterly Report on Form 10-Q for the quarter ended September 27, 1997, plus the number of Shares issued in the Merger). JWC Advisors is the sole general partner of Childs. Associates L.P. is the sole general partner of JWC Advisors. Associates Inc. is the sole general partner of Associates L.P. Therefore, JWC Advisors, Associates L.P. and Associates Inc. have the power to direct the voting and disposition of any Shares owned or deemed to be beneficially owned by Childs. As a result, JWC Advisors, Associates L.P. and Associates Inc. may be deemed to beneficially own any shares of Issuer Common Stock owned or deemed to be beneficially owned by Childs. (b) Except as otherwise described in paragraph (a), Childs has the sole right to vote and direct the disposition of the Shares which are the subject of this statement. (c) Other than as may be described in Item 3, no transactions in Shares have been effected by the Reporting Persons during the past sixty days. (d) No other person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of securities covered by this statement. Item 6. Contracts, arrangements, understandings or relationships with respect to securities of the issuer. In connection with the Merger, Childs entered into a Stockholders Agreement and a Registration Rights Agreement with Playtex. Pursuant to the Stockholders Agreement, Childs has agreed (i) not to acquire, offer to acquire or agree to acquire Shares where such action would, in the reasonable opinion of Playtex, cause a "change of control" as defined in or a default under certain indentures and other agreements to which Playtex is or becomes a party, and (ii) not to distribute to its partners any of the Shares owned by it prior to the third anniversary of the effective date of the Merger. Also pursuant to the Stockholders Agreement, Playtex has agreed that as long as Childs continues to own at least 4,628,688 Shares, as adjusted for stock splits, stock dividends and reclassifications, it will use its best efforts to ensure that one person designated by Childs is a member of the Playtex Board of Directors. In accordance with the terms of their agreements to subscribe for shares in PCH, certain former shareholders of PCH (including the directors and executive officers of Associates, Inc. identified on Schedule A attached hereto) have agreed that they will sell Shares acquired in the Merger only if a pro rata portion of the Shares acquired by Childs in the Merger is being sold by Childs or distributed to its partners on substantially the same terms, and as of the date of the proposed sale such former shareholders, the Shares distributed are, or upon the exercise of SCHEDULE 13D CUSIP No. 72813P 10 0 Page 9 of 12 Pages registration rights then exercisable could be, saleable under applicable securities laws to the same extent as the Shares proposed to be sold by such former shareholders. Except as set forth in this Statement, to the best knowledge of the Reporting Persons, there are no other contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 and between such persons and any person with respect to any securities of Playtex, including but not limited to, transfer or voting of any of the securities of the Issuer, joint ventures, loan or option arrangements, puts or calls, guarantees or profits, division of profits or loss, or the giving or withholding of proxies, or a pledge or contingency the occurrence of which would give another person voting power over the securities of the Issuer. Item 7. Material to be filed as exhibits. The following documents are filed as an exhibit to this statement: 1. Joint Filing Agreement 2. Stockholders Agreement 3. Registration Rights Agreement 4. Form of PCH Subscription Agreement SCHEDULE 13D CUSIP No. 72813P 10 0 Page 10 of 12 Pages SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and current. February 6, 1998 J.W. CHILDS EQUITY PARTNERS, L.P. By: J.W. CHILDS ADVISORS, L.P., its general partner By: J.W. CHILDS ASSOCIATES, L.P., its general partner By: J.W. CHILDS ASSOCIATES, INC., its general partner By: /s/ John W. Childs Name: John W. Childs Title: President J.W. CHILDS ADVISORS, L.P., By: J.W. CHILDS ASSOCIATES, L.P., its general partner By: J.W. CHILDS ASSOCIATES, INC., its general partner By: /s/ John W. Childs Name: John W. Childs Title: President J.W. CHILDS ASSOCIATES, L.P., By: J.W. CHILDS ASSOCIATES, INC., its general partner By: /s/ John W. Childs Name: John W. Childs Title: President J.W. CHILDS ASSOCIATES, INC. By: /s/ John W. Childs Name: John W. Childs Title: President SCHEDULE 13D CUSIP No. 72813P 10 0 Page 11 of 12 Pages SCHEDULE A
J.W. CHILDS ASSOCIATES, INC. Executive Officers and Directors: Principal Name Business Address Occupation Office Citizenship - ---- ---------------- ---------- ------ ----------- John W. Childs One Federal Street, President, President and U.S. Boston, MA 02110 Associates Treasurer Steven G. Segal One Federal Street, Employee, Vice President U.S. Boston, MA 02110 Associates and Secretary Adam L. Suttin One Federal Street, Employee, Vice President U.S. Boston, MA 02110 Associates Glenn A. Hopkins One Federal Street, Employee, Vice President U.S. Boston, MA 02110 Associates
SCHEDULE 13D CUSIP No. 72813P 10 0 Page 12 of 12 Pages EXHIBIT INDEX Exhibit 1. Joint Filing Agreement 2. Stockholders Agreement 3. Registration Rights Agreement 4. Form of PCH Subscription Agreement EX-99.1 2 AGREEMNT Pursuant to Rule 13d-1(f)(1) under the Securities Exchange Act of 1934, the undersigned hereby agree that only one statement containing the information required by Schedule 13D (or any amendment thereof) need be filed on their behalf with respect to the beneficial ownership of any equity securities of Playtex Products, Inc. ("Playtex") or any subsequent acquisitions or dispositions of equity securities of Playtex by any of the undersigned. Dated: February 6, 1998 J.W. CHILDS EQUITY PARTNERS, L.P. By: J.W. CHILDS ADVISORS, L.P., its general partner By: J.W. CHILDS ASSOCIATES, L.P., its general partner By: J.W. CHILDS ASSOCIATES, INC., its general partner By: /s/ John W. Childs Name: John W. Childs Title: President J.W. CHILDS ADVISORS, L.P., By: J.W. CHILDS ASSOCIATES, L.P., its general partner By: J.W. CHILDS ASSOCIATES, INC., its general partner By: /s/ John W. Childs Name: John W. Childs Title: President J.W. CHILDS ASSOCIATES, L.P., By: J.W. CHILDS ASSOCIATES, INC., its general partner By: /s/ John W. Childs Name: John W. Childs Title: President J.W. CHILDS ASSOCIATES, INC. By: /s/ John W. Childs Name: John W. Childs Title: President EX-99.2 3 EXHIBIT 99.2 STOCKHOLDERS AGREEMENT STOCKHOLDERS AGREEMENT (the "Agreement") dated as of January 28, 1998, between PLAYTEX PRODUCTS, INC., a Delaware corporation (the "Company"), and J.W. CHILDS EQUITY PARTNERS, L.P., a Delaware limited partnership (the "Principal Stockholder") and the other persons who are set forth in Schedule A hereto (collectively with the Principal Stockholder, the "Childs Holders"). RECITALS WHEREAS, the Company and the Principal Stockholder are, together with PCG Acquisition Corp., a Delaware corporation and wholly owned subsidiary of the Company ("Subsidiary"), and Personal Care Holdings Inc., a Delaware corporation ("Target"), parties to a Merger Agreement, dated as of December 22, 1997 (as amended, the "Merger Agreement"), pursuant to which, on the Effective Date, Subsidiary will be merged with and into Target (the "Merger"), whereupon Subsidiary shall continue as the surviving corporation; WHEREAS, after the Effective Date, the Childs Holders will hold, in aggregate, 9,257,375 shares (the "Shares") of common stock of the Company, par value $.01 ("Company Common Stock"); and WHEREAS, as an inducement to and a condition of the Company entering into the Merger Agreement, the Company has required that the Childs Holders, and the Childs Holders have agreed, to execute and deliver this Agreement. 2 NOW, THEREFORE, in consideration of the covenants and agreements set forth herein, the parties hereto agree as follows: ARTICLE I DEFINITIONS 1.1 Definitions. (a) The following terms, whenever used herein, shall have the following meanings for all purposes of this Agreement. "1933 Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. "1934 Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. An "Affiliate" of, or a person "affiliated" with, a specified Person, means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified. The term "control" (including the terms "controlling," "controlled by" and "under common control with") means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise. No owner of a limited partnership interest of the Principal Stockholder shall be deemed an affiliate of, or a Person "affiliated" with, the Principal Stockholder solely by reason of such ownership. "By-laws" means the by-laws of the Company. "By-laws Amendment" means the proposed amendment to the By-laws in the form attached as Exhibit A hereto. 3 "Transfer" means, in relation to any share of Company Common Stock, any sale, assignment, transfer or disposition by gift or otherwise, including without limitation, any distribution in liquidation or otherwise by a corporation or partnership; provided, however, that "Transfer" does not mean, with respect to any such share of Company Common Stock, any pledge, mortgage, hypothecation or grant of a security interest therein or a transfer thereof through the granting of participation rights. "Person" means any individual, firm, corporation, partnership, limited liability company or partnership, trust, incorporated or unincorporated association, joint venture, joint stock company, government (or an agency or political subdivision thereof) or other entity of any kind, and shall include any successor (by merger or otherwise) of such entity. (b) Capitalized terms not otherwise defined herein shall have the meanings given such terms in the Merger Agreement. ARTICLE II DIRECTORS 2.1 Increase in the Size of the Board of Directors. The Company hereby agrees that it will use its best efforts to (i) increase the size of its Board of Directors (the "Board") by two persons effective on the date hereof, and (ii) cause one of the vacancies thus created to be filled by John W. Childs in accordance with the By-laws as in effect on the date hereof. 2.2 Nomination of Target Director. The Company hereby agrees that for so long as the Principal Stockholder owns, in the aggregate, at least 4 4,628,688 Shares, as adjusted for stock splits, stock dividends, and reclassifications, it will use its best efforts to ensure that, following any vote for the election of directors of the Company at a stockholders' meeting or otherwise, one director (the "Target Director") designated by the Principal Stockholder is a member of the Board, provided, that the Principal Stockholder shall ensure that the proposed Target Director is nominated in accordance with the By-Laws. 2.3 Stockholder Meeting; Proxy Material; By-Laws Amendment. The Company shall cause either (a) a meeting of its stockholders to be duly called and held as soon as practicable following the Effective Time, subject to the Company's right to adjourn such meeting at any time or from time to time if in the Board's good faith judgment such adjournment is desirable, or (b) consents of its stockholders to be solicited, in accordance with the By-laws and the 1934 Act, for the purpose of voting for the adoption of the By-Laws Amendment (the "Stockholder Meeting"). In connection with the Stockholder Meeting, the Company: (A) shall promptly prepare and file with the Securities and Exchange Commission (the "SEC") in accordance with the 1934 Act an information statement relating to the By-Laws Amendment (the "Information Statement"), use all reasonable efforts to have the Information Statement and/or any amendment or supplement thereto cleared by the SEC and thereafter mail to its stockholders as promptly as practicable following such clearance the Information Statement; (B) shall use its reasonable best efforts to obtain the necessary approvals by its stockholders for the adoption of the By-Laws Amendment (unless the Board shall have determined in good faith, based upon advice of outside counsel, that not taking such actions is necessary for the Board to comply with its fiduciary duties 5 under applicable law); and (C) shall otherwise comply with all legal requirements applicable to the Stockholders Meeting. The Company shall make available to the Principal Stockholder prior to the filing thereof with the SEC copies of the preliminary Information Statement and any amendments or supplements thereto and shall make any changes therein reasonably requested by the Principal Stockholder insofar as such changes relate to any matters relating to the Principal Stockholder. ARTICLE III TRANSFERS OF SECURITIES 3.1 Restrictions on Transfer of Company Common Stock. The Principal Stockholder agrees that, prior to the third anniversary of the Effective Date, it shall not Transfer any of the Shares, by distribution or otherwise, to any of its shareholders, partners, members or owners. 3.2 Transfers Subject to Compliance with Securities Laws. No Shares may be Transferred by the Childs Holders (other than pursuant to an effective registration Statement under the 1933 Act) unless such Childs Holder first delivers to the Company an opinion of counsel, reasonably satisfactory to the Company, to the effect that such Transfer is not required to be registered under the 1933 Act. 3.3 Certificates for Shares To Bear Legends. (A) So long as the Shares are not sold pursuant to an effective registration statement under the 1933 Act or pursuant to Rule 144 under the 1933 Act, the Shares shall be subject to a stop-transfer order and the certificates therefor shall bear the following legend by which each holder thereof shall be bound: 6 "THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, OR (ii) AN APPLICABLE EXEMPTION FROM REGISTRATION THEREUNDER." (B) So long as the Shares are subject to the terms and conditions of Section 3.1, the Shares shall be subject to a stop-transfer order and the certificates shall bear the following legend: "THE SALE OR TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS FURTHER SUBJECT TO RESTRICTIONS WHICH ARE CONTAINED IN A STOCKHOLDERS AGREEMENT DATED AS OF JANUARY 28, 1998 A COPY OF WHICH IS ON FILE WITH THE ISSUER OF THESE SHARES AND WILL BE FURNISHED BY THE ISSUER OF THESE SHARES TO THE STOCKHOLDER ON REQUEST AND WITHOUT CHARGE." (C) After the termination of the legend requirements of either Section 3.3(A) or Section 3.3(B), the Company shall, upon the written request of the holders of the Shares and receipt by the Company of evidence reasonably satisfactory to it that such requirement has terminated (including, with respect to the legend required by the Section 3.3(A), a written opinion of outside counsel), issue certificates for such Shares that do not bear all or part of the legend described in Section 3.3(A) or Section 3.3(B), as the case may be. 7 ARTICLE IV RESTRICTIONS ON PURCHASE 4.1 Restricted Purchases. Each Childs Holder agrees that it will not, nor will it permit any of its Affiliates to, directly or indirectly, take any action, including, without limitation, to acquire, offer to acquire, or agree to acquire, by purchase or otherwise any Company Common Stock, where such action or acquisition would, in the reasonable opinion of the Company, cause (A) a "Change of Control" under, and as defined in, (x) the Indenture dated as of February 2, 1994 among the Company, certain subsidiaries of the Company, as Guarantors, and IBJ Schroder Bank & Trust Company, as Trustee (the "1994 Indenture"), (y) the Indenture dated as of July 21, 1997 among the Company, certain subsidiaries of the Company, as Guarantors, and Marine Midland Bank, as Trustee (the "1997 Indenture" and, together with the 1994 Indenture, the "Indentures") or (z) any other presently existing or future agreement of the Company (a copy of which has been delivered to the Childs Holders with the relevant provisions clearly identified) where such action or acquisition would have a similar effect (any such agreement, a "Noticed Agreement"), or (B) a default under the provisions of the Indentures or any Noticed Agreement, to the extent that the relevant Childs Holder received a copy of such provisions prior to taking any such action or making any such acquisition. 8 ARTICLE V TERMINATION 5.1 Termination. This Agreement shall terminate ten years from the date hereof. ARTICLE VI MISCELLANEOUS 6.1 Amendment. This Agreement may be altered or amended only with the consent of the Company and the Childs Holders Representative. 6.2 Specific Performance. The parties recognize that the obligations imposed on them in this Agreement are special, unique and of extraordinary character, and that in the event of breach by any party, damages will be an insufficient remedy; consequently, it is agreed that the parties hereto may have specific performance (in addition to damages) as a remedy for the enforcement hereof, without proving damages. 6.3 Assignment. Except as other provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors of the parties hereto; provided, however, that this Agreement may not be assigned by any party without the prior written consent of the Company and the Childs Holders Representative except that the Company may assign its rights herein to any successor to all or substantially all its assets (by merger or otherwise). Any assignment of rights hereunder shall be coupled with the assumption by the assignee of all of the obligations of the assignor hereunder and shall thereby relieve 9 such assignor of such obligations. Any purported assignment made in violation of this Section 6.3 shall be void and of no force and effect. 6.4 Appointment of Representative. Each Childs Holder hereby authorizes and appoints John W. Childs (in such capacity, the "Childs Holders Representative") as its representative and agent for purposes of accepting and delivering notices and taking actions hereunder on behalf of each Childs Holder. In the event that John W. Childs is unable or unwilling to be the Childs Holders Representative, then the Childs Holders holding at least a majority of the Shares at such time (the "Majority Childs Holders") shall appoint a successor Childs Holders Representative and, until such successor is appointed, all actions to be taken by the Childs Holders Representative hereunder shall be taken by the Majority Childs Holders. 6.5 Notices. Any and all notices, designations, consents, offers, acceptances, or any other communication provided for herein shall be given in writing and deemed received when delivered by overnight courier or hand delivery, or when sent by facsimile transmission which shall be addressed, or sent, as follows: If to the Company, to it at: Playtex Products, Inc. 300 Nyala Farms Road Westport, Connecticut 06880 Attention: Michael F. Goss, Chief Financial Officer Telecopier: (203) 341-4260 10 With a copy to: Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of the Americas New York, New York 10019-6064 Attention: Robert M. Hirsh, Esq. Telecopier: (212) 373-2159 If to the Childs Holders Representative to him at: J.W. Childs Equity Partners, L.P. c/o J.W. Childs Associates, Inc. One Federal Street Boston, MA 02110 Attention: John W. Childs Telecopier: (617) 753-1101 With a copy to: Sullivan & Worcester LLP One Post Office Square Boston, MA 02109 Attention: Christopher Cabot, Esq. Telecopier: (617) 338-2880 or, in each case, such other address as the Principal Stockholder shall specify to the Company and the other parties hereto. 6.6 Counterparts. This Agreement may be executed in one or more counterparts and each counterpart shall be deemed to be an original and which counterparts together shall constitute one and the same agreement of the parties hereto. 6.7 Section Headings. Headings contained in this Agreement are inserted only as a matter of convenience and in no way define, limit or extend the scope or intent of this Agreement or any provisions hereof. 11 6.8 Choice of Law. This Agreement shall be governed by the laws of the State of New York, without regard to principles of conflicts of laws. 6.9 Entire Agreement. This Agreement, the Merger Agreement and the Registration Rights Agreement contain the entire understanding of the parties hereto respecting the subject matter hereof and thereof and supersede all prior agreements, discussions, and understandings with respect to such subject matters. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. PLAYTEX PRODUCTS, INC. By: /s/ Michael F. Goss Name: Michael F. Goss Title: Executive Vice President and Chief Financial Officer J.W. CHILDS EQUITY PARTNERS, L.P. By: J.W. CHILDS ADVISORS, L.P., its General Partner By: J.W. CHILDS ASSOCIATES, L.P., its General Partner By: J.W. CHILDS ASSOCIATES, INC. By: /s/ Adam L. Suttin Name: Adam L. Suttin Title: Vice President 12 FORM OF AMENDMENT TO THE BY-LAWS OF THE COMPANY a. The existing Section 15(b) in Article III of the By-laws shall be redesignated Section 15(b)(A) and a Section 15(b)(B) shall be added to read as follows: "(B) From the Effective Date until the earlier of (1) the date upon which the Principal Stockholder holds, in the aggregate, less than 4,628,688 shares of common stock of the Company or (2) the tenth anniversary of the Effective Date, one of the Non-Purchaser Directors shall be the Target Director. The "Effective Date" shall have the meaning given that term in the Merger Agreement. The "Merger Agreement" means the Merger Agreement, dated as of December 22, 1997 among the Corporation, PCG Acquisition Corp., Personal Care Holdings, Inc. and J.W. Childs Equity Partners, L.P. (the "Principal Stockholder"). The "Target Director" means the Director designated by the Principal Stockholder." 13
Schedule A Bock Family Trust James D. Murphy and Diane G. Murphy J.W. Childs Equity Partners, L.P. Joseph Pachella James E. Childs Leslie A. Paparone John W. Childs Jay E. Politi Richard S. Childs Kenneth F. Reilly The Dowds Family Investment Trust Joel Slank Kenneth M. Evans Daniel M. Synan Adam T. Feild Anne Tashjian Timothy J. Healy James D. Tates Glenn A. Hopkins Sharad B. Tilak Jerry D. Horn Paul W. Tonnesen Alan R. Koss Revocable Living Trust Mariane Wojcicki Alan R. Koss Karen A. August Lambros J. Lambros Dennis G. Podlesak Stephanie L. Mansfield Julie B. Sweeney Lawrence J. Mansfield and Edith R. Mansfield Neil P. Guller Jenny Childs Preston Stephen K. Carrico Raymond B. Rudy Michael Fleury Steven G. Segal James P. Garvey Steven G. Segal 1995 Irrevocable Trust Marcie J. Griesmeyer SGS 1995 Family Limited Partnership David Hays SGS-III Family Limited Partnership Kim Levine Mario E. Soussou Michael Cox Adam L. Suttin Rebecca Cushing Suttin Family Trust Teresita Eugenio Gagan Verma Peter Gower Stephen H. Wise Thomas Horton Catherine Durden Lee Jacobs Michael P. Ferry Loren Block Debra T. Follick Christina Bartolick Bruce A. Goldsmith Cheryl Lawler William R. Kinder Michael J. Metzger Donald W. Miller Dennis L. Moore Donald G. Morgan
EX-99.3 4 EXHIBIT 99.3 REGISTRATION RIGHTS AGREEMENT among PLAYTEX PRODUCTS, INC. and J.W. CHILDS EQUITY PARTNERS, L.P. --------------------------------------- Dated as of January 28, 1998 ---------------------------------------
TABLE OF CONTENTS Page 1. Background......................................................................................1 2. Registration Under Securities Act, etc..........................................................1 2.1 Registration on Request................................................................1 2.2 Incidental Registration................................................................5 2.3 Registration Procedures................................................................9 2.4 Underwritten Offerings................................................................12 2.5 Preparation; Reasonable Investigation.................................................13 2.6 Limitations, Conditions and Qualifications to Obligations under Registration Covenants................................................................13 2.7 Indemnification.......................................................................14 3. Definitions....................................................................................17 4. Rule 144 and Rule 144A.........................................................................20 5. Amendments and Waivers.........................................................................20 6. Nominees for Beneficial Owners.................................................................20 7. Appointment of Representative..................................................................20 8. Notices........................................................................................21 9. Assignment.....................................................................................21 10. Calculation of Percentage Interests in Registrable Securities..................................21 11. No Inconsistent Agreements.....................................................................21 12. Remedies.......................................................................................21 13. Severability...................................................................................22 14. Entire Agreement...............................................................................22 15. Headings.......................................................................................22 16. Governing Law..................................................................................22 17. Counterparts...................................................................................22
REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of January 28, 1998, between PLAYTEX PRODUCTS, INC., a Delaware corporation (the "Company") and J.W. CHILDS EQUITY PARTNERS, L.P., a Delaware limited partnership (the "Principal Stockholder") and the other persons who are set forth in Schedule A hereto (collectively with the Principal Stockholder, the "Childs Holders"). The parties hereby agree as follows: 1. Background. Pursuant to that certain Merger Agreement (as amended, the "Merger Agreement"), dated as of December 22, 1997, among the Company, PCG Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of the Company ("Subsidiary"), Personal Care Holdings Inc., a Delaware corporation ("Target"), and the Principal Stockholder, the Childs Holders received as part of the consideration for their shares of common stock of Target, par value $.01 per share, among other things, in the aggregate, 9,257,375 shares (the "Shares") of Common Stock, par value $.01 per share, of the Company. Capitalized terms used herein but not otherwise defined shall have the meanings given them in Section 3. 2. Registration Under Securities Act, etc. 2.1 Registration on Request. (a) Request. At any time after the date that is six months after the Effective Date (as defined in the Merger Agreement), upon the written request of the Childs Representative on behalf of one or more holders (the "Initiating Holders") of Registrable Securities that the Company effect the registration under the Securities Act of all or part of such Initiating Holders' Registrable Securities, the Company promptly will give written notice of such requested registration to all registered holders of Registrable Securities, and thereupon the Company will use its best efforts to effect, at the earliest possible date, the registration under the Securities Act of: (i) the Registrable Securities which the Company has been so requested to register by such Initiating Holders; and (ii) all other Registrable Securities which the Company has been requested to register by the Childs Representative on behalf of the holders thereof (such holders together with the Initiating Holders hereinafter are referred to as the "Selling Holders") by written request given to the Company within 30 days after the giving of such written notice by the 2 Company, all to the extent necessary to permit the disposition of the Registrable Securities so to be registered. (b) Registration of Other Securities. Whenever the Company shall effect a registration pursuant to this Section 2.1, no securities other than Registrable Securities shall be included among the securities covered by such registration unless the Selling Holders of not less than 66-2/3% of all Registrable Securities to be covered by such registration shall have consented in writing to the inclusion of such other securities; provided, however, that such consent shall not be required with respect to securities required to be registered by (a) the holders thereof (the "HWH Selling Holders") pursuant to Section 2.2(a) of the HWH Agreement (such securities, "HWH Securities") and (b) the holders thereof (the "Third Party Selling Holders" and together with the HWH Selling Holders, the "Other Selling Holders") pursuant to Section 3(a) of the Stockholders Agreement (such securities, "Third Party Securities" and, together with the HWH Securities, the "Other Securities"). (c) Registration Statement Form. Registrations under this Section 2.1 shall be on such appropriate registration form of the Commission as shall be reasonably selected by the Company. (d) Effective Registration Statement. A registration requested pursuant to this Section 2.1 shall be deemed to have been effected if a registration statement with respect thereto has become effective and remained effective in compliance with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement (unless the failure to so dispose of such Registrable Securities shall be caused solely by reason of a failure on the part of the Selling Holders); provided, that such period need not exceed 135 days. Notwithstanding the foregoing, a registration requested pursuant to this Section 2.1 shall not be deemed to have been effected if (i) after it has become effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable solely to the Selling Holders and has not thereafter become effective, or (ii) the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than solely by reason of a failure on the part of the Selling Holders. (e) Selection of Underwriters. The underwriter or underwriters of each underwritten offering of the Registrable Securities so to be registered shall be selected by the Childs Representative on behalf of Selling Holders of more than 50% of Registrable Securities to be included in such registration and 3 shall be reasonably acceptable to the Company. For purposes of this Section 2.1(e), the Company hereby acknowledges that each of the underwriters identified on Schedule 2.1(e) hereto shall be deemed to be acceptable to the Company; provided that such acknowledgment is subject to the condition that with respect to any underwriter identified on such Schedule selected by the Selling Holders, there shall have not occurred since the date hereof any material change with respect to such underwriter which, in the reasonable determination of the Company, makes such underwriter unqualified to participate in an underwritten offering of Common Stock of which change the Company shall have notified the Childs Representative prior to any such demand under this Section 2.1 upon request from the Childs Representative. (f) Priority in Requested Registration. If the managing underwriter of any underwritten offering shall advise the Company in writ ing (and the Company shall so advise each Selling Holder of Registrable Securities requesting registration of such advice) that, in its opinion, the number of securities requested to be included in such registration exceeds the number which can be sold in such offering within a price range acceptable to the Childs Representative on behalf of Selling Holders of 66-2/3% of the Registrable Securities requested to be included in such registration, the Company, except as provided below, will include in such registration, to the extent of the number and type which the Company is so advised can be sold in (or during the time of) such offering (the "Maximum Amount"), first, Third Party Securities requested to be included in such registration to the extent required to be included therein pursuant to the Stockholders Agreement, pro rata (based on the number of Third Party Securities requested to be included in such registration) among the Third Party Selling Holders requesting participation in such registration; second, Registrable Securities requested to be included in such registration up to an aggregate amount equal to the lesser of (A) the aggregate amount of Registrable Securities requested to be included in such registration and (B) (x) if such registration is the first requested pursuant to this Section 2.1 (the "first registration"), the excess, if any, of the Maximum Amount over the amount of securities provided for in the preceding paragraph (such amount, the "Adjusted Maximum Amount"), but not in excess of 75% of the Maximum Amount, or (y) if such registration is the second requested pursuant to this Section 2.1 (the "second registration"), the sum of 50% of the Adjusted Maximum Amount plus the Recapture Amount; third, HWH Securities requested to be included in such registration up to an aggregate amount equal to the lesser of (A) the aggregate amount of HWH Securities requested to be included in such registration and (B) (x) if such registration is the first registration, the excess, if any, of the Maximum Amount over the amount of securities provided for in the two preceding paragraphs but not in excess of 25% of 4 the Maximum Amount, or (y) if such registration is the second registration, 50% of the Adjusted Maximum Amount less the Recapture Amount; fourth, to the extent that the amount of securities provided for in the three immediately preceding paragraphs is less than the Maximum Amount, Registrable Securities or HWH Securities, as applicable, requested to be included in such registration, up to the aggregate amount requested by the Selling Holders and HWH Selling Holders, respectively, to be included in such registration in excess of the amounts provided for in the three immediately preceding paragraphs; and fifth, all securities proposed to be sold by the Company for its own account; provided, that from and after the date on which the Stockholders Agreement is no longer in effect, all references to Third Party Securities in the foregoing priorities shall be deleted and the priorities provided for herein shall be automatically adjusted accordingly. For purposes of the foregoing (A) all Registrable Securities included in such registration shall be allocated pro rata (based on the number of Registrable Securities held by each of the Selling Holders) among the Selling Holders requesting such registration and (B) all HWH Securities included in such registration shall be allocated pro rata (based on the number of HWH Securities held by each of the HWH Selling Holders) among the HWH Selling Holders requesting participation in such registration. Notwithstanding the foregoing, if the total number of Registrable Securities requested to be included in any registration cannot be included, the Childs Representative on behalf of the holders of Registrable Securities requesting registration thereof pursuant to this Section 2.1, representing not less than 50% of the Registrable Securities with respect to which registration has been requested, shall have the right to withdraw the request for registration by giving written notice to the Company within 20 days after receipt of the notice from the managing underwriter described above by the Company and, in the event of such withdrawal, such request shall not be counted for purposes of the requests for registration to which holders of Registrable Securities are entitled pursuant to this Section 2.1. If a request for registration is withdrawn pursuant to the immediately preceding sentence and at least 80% of the Registrable Securities requested to be included could have been included therein, the Registration Expenses incurred by the Company in connection with such withdrawn registration through the date of the Company's receipt of the notice requesting such withdrawal, shall be reimbursed by the Selling Holders, pro rata (based on the number of registrable securities requested to be included therein) among the Selling Holders. 5 (g) Limitations on Registration Requests. Notwithstanding anything in this Section 2.1 to the contrary, in no event will the Company be required to effect (i) in the aggregate, more than two registrations pursuant to this Section 2.1; provided that in the event that the holders of Registrable Securities are unable to include at least 50% of the relevant Maximum Amount with respect to any such registration requested pursuant to Section 2.1(a) as a result solely of the participation of the Third Party Selling Holders in such registration, then, unless the amount requested to be included in such registration is less than 50% of the relevant Maximum Amount, such registration shall not be counted for purposes of this clause (i), (ii) a registration pursuant to this Section 2.1 within the six-month period occurring immediately subsequent to the effectiveness (within the meaning of Section 2.1(d)) of a registration statement filed pursuant to this Section 2.1, unless a majority of the Disinterested Directors determines that effecting such second registration within the six-month period would not have a material adverse effect on the market price of the Common Stock, or (iii) a registration pursuant to Section 2.1 covering less than 30% of the then outstanding Registrable Securities. (h) Expenses. The Company will pay all Registration Expenses in connection with any registrations requested pursuant to this Section 2.1. 2.2 Incidental Registration. (a) Right to Include Registrable Securities. If the Company at any time proposes to register any of its Common Stock under the Securities Act by registration on any form other than Forms S-4 or S-8, whether or not for sale for its own account, it will each such time give prompt written notice to all registered holders of Registrable Securities of its intention to do so and of such holders' rights under this Section 2.2. Upon the written request of any such holder (a "Requesting Holder") (which request shall specify the Registrable Securities intended to be disposed of by such Requesting Holder) made as promptly as practicable and in any event within 30 days after the receipt of any such notice from the Company (15 days if the Company states in such written notice or gives telephonic or telecopied notice to all registered holders of Registrable Securities, with written confirmation to follow promptly thereafter, that (i) such registration will be on Form S-3 and (ii) such shorter period of time is required because of a planned filing date), the Company will use its best efforts to effect the registration under the Securities Act of all Registrable Securities which the Company has been so requested to register by the Requesting Holders thereof; provided, that prior to the effective date of the registration statement filed in connection with such registration, promptly upon notification to the Company from the managing underwriter of the price at which such securities are to be sold, if such price is below the price which any Requesting Holder shall have indicated to be acceptable to such Requesting Holder, the Company shall so advise such Requesting Holder of such price, and such Requesting Holder shall then have the right to withdraw its request to have its Registrable Securities included in such registration 6 statement; provided, further, however, that if, at any time after giving written notice of its intention to register any securities and prior to the effective date of the registra tion statement filed in connection with such registration, the Company shall determine for any reason not to register or to delay registration of such securities, the Company may, at its election, give written notice of such determination to each Requesting Holder of Registrable Securities and (x) in the case of a determination not to register, shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from any obligation of the Company to pay the Registration Expenses in connection therewith), without prejudice, however, to the rights of any holder or holders of Registrable Securities entitled to do so to cause such registration to be effected as a registration under Section 2.1, and (y) in the case of a determination to delay registering, shall be permitted to delay registering any Registrable Securities, for the same period as the delay in registering such other securities. No registration effected under this Section 2.2 shall relieve the Company of its obligation to effect any registration upon request under Section 2.1. (b) Priority in Incidental Registrations. If the managing underwriter of any underwritten offering shall inform the Company by letter of its opinion that the number or type of Registrable Securities and Other Securities requested to be included in such registration would materially adversely affect such offering, and the Company has so advised the Requesting Holders and the holders of Other Securities that have requested Other Securities to be included in such registration ("Other Requesting Holders") in writing, then the Company will include in such registration, to the extent of the number and type which the Company is so advised can be sold in (or during the time of) such offering (the "Incidental Maximum Amount"): (A) if such registration is the first or second registration initiated pursuant to Section 2.1 of the HWH Agreement: first, Registrable Securities requested to be included in such registration up to the Recapture Amount; second, HWH Securities requested to be included in such registration up to an amount equal to the lesser of (i) the aggregate amount of HWH Securities requested to be included in such registration and (ii) 85% of the Incidental Maximum Amount less the Recapture Amount; third, Third Party Securities requested to be included in such registration to the extent required to be included therein pursuant to the Stockholders Agreement, pro rata (based on the number of Third Party Securities requested to be included in such registration) among the Third Party Requesting Holders requesting participation in such registration; 7 fourth, Registrable Securities requested to be included in such registration up to an amount equal to the lesser of (i) the aggregate amount of Registrable Securities requested to be included in such registration, (ii) the excess of the Incidental Maximum Amount over the amount provided for in the three preceding paragraphs and (iii) 15% of the Incidental Maximum Amount; fifth, Registrable Securities and Other Securities requested to be included in such registration, up to the aggregate amount requested by the Selling Holders and HWH Selling Holders to be included in such registration in excess of the amounts provided for in the preceding paragraphs; and sixth, securities proposed by the Company to be sold for its own account; (B) if such registration is the third or fourth registration initiated pursuant to Section 2.1 of the HWH Agreement: first, Third Party Securities requested to be included in such registration to the extent required to be included therein pursuant to the Stockholders Agreement, pro rata (based on the number of Third Party Securities requested to be included in such registration) among the Third Party Requesting Holders requesting participation in such registration; second, Registrable Securities and HWH Securities requested to be included in such registration, pro rata (based on the number of securities of the Company held by each Requesting Holder and each HWH Selling Holder) among such Requesting Holders and HWH Selling Holders; and third, securities proposed by the Company to be sold for its own account; (C) if such registration is initiated by the Third Party Selling Holders pursuant to Section 3(b) of the Stockholders Agreement: first, Third Party Securities requested to be included in such registration by the Third Party Requesting Holders to the extent required to be included therein pursuant to the Stockholders Agreement, pro rata (based on the number of Third Party Securities requested to be included in such registration); second, Registrable Securities and HWH Securities requested to be included in such registration, pro rata (based on the number of securities of the Company held by each Requesting Holder and each HWH Requesting Holder) among such Requesting Holders and HWH Requesting Holders; and 8 third, securities proposed by the Company to be sold for its own account; and (D) in all other incidental registrations: first, securities proposed by the Company to be sold for its own account; second, Third Party Securities requested to be included in such registration to the extent required to be included therein pursuant to the Stockholders Agreement and HWH Securities, pro rata (based on the number of Other Securities requested to be included in such registration by each Other Requesting Holder) among the Other Requesting Holders requesting participation in such registration; and third, Registrable Securities; provided, that from and after the date that the Stockholders Agreement is no longer in effect, (x) all references to Third Party Securities in the priorities set forth in clauses (A) and (B) above shall be deleted and the priorities provided for herein shall be automatically adjusted accordingly, (y) clause (C) above shall be deleted in its entirety, and (z) clause (D) shall be redesignated as clause (C) and shall be amended in its entirety to read as follows: "(C) in all other incidental registrations: first, securities proposed by the Company to be sold for its own account; and second, Registrable Securities and HWH Securities requested to be included in such registration, pro rata (based on the number of securities of the Company held by each Requesting Holder and each HWH Requesting Holder) among the Requesting Holders and the HWH Requesting Holders requesting participation in such registration." For purposes of the foregoing, to the extent not otherwise provided for above, (x) all Registrable Securities included in any such registration shall be allocated pro rata (based on the number of Registrable Securities held by each of the Requesting Holders) among the Requesting Holders and (y) all HWH Securities included in any such registration shall be allocated pro rata (based on the number of HWH Securities held by each of the HWH Requesting Holders) among the HWH Requesting Holders. 9 (c) Expenses. The Company will pay all Registration Expenses in connection with any registration contemplated pursuant to this Section 2.2. 2.3 Registration Procedures. If and whenever the Company is required to use its best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 2.1 and 2.2, the Company will, as expeditiously as possible: (i) prepare and (within 90 days after the end of the period within which requests for registration may be given to the Company) file with the Commission the requisite registration statement to effect such registration and thereafter use its best efforts to cause such registration statement to become effective; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities (and, under the circumstances specified in Section 2.2(a), Registrable Securities) at any time prior to the effective date of the registration statement relating thereto; (ii) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective in accordance with Section 2.1(d) hereof and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, that except with respect to any such registration statement filed pursuant to Rule 415 under the Securities Act, such period need not exceed 135 days; (iii) furnish to each seller of Registrable Securities covered by such registration statement, such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents, as such seller may reasonably request; (iv) use its reasonable best efforts (x) to register or qualify all Registrable Securities and other securities covered by such registration statement under such other securities or blue sky laws of such States of the United States of America where an exemption is not available and 10 as the sellers of Registrable Securities covered by such registration statement shall reasonably request, (y) to keep such registration or qualification in effect for so long as such registration statement remains in effect and (z) to take any other action which may be reasonably necessary or advisable to enable such sellers to consummate the disposition in such jurisdictions of the securities to be sold by such sellers, except that the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this subdivision (iv) be obligated to be so qualified or to consent to general service of process in any such jurisdiction; (v) use its best efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other federal or state governmental agencies or authorities as may be necessary in the reasonable opinion of counsel to the Company and counsel to the seller or sellers of Registrable Securities to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities; (vi) furnish at the effective date of such registration statement to each seller of Registrable Securities, and each such seller's underwriters, if any, a signed counterpart of: (x) an opinion of counsel for the Company, dated the effective date of such registration statement and, if applicable, the date of the closing under the underwriting agreement; and (y) a "comfort" letter signed by the independent public accountants who have certified the Company's financial statements included or incorporated by reference in such registration statement, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants' comfort letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' comfort letters delivered to the underwriters in underwritten public offerings of securities and, in the case of the accountants' comfort letter, such other financial matters, and, in the case of the legal opinion, such other legal matters, as the underwriters may reasonably request; (vii) notify each seller of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any event as a result of which, the prospectus 11 included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made, and at the request of any such seller promptly prepare and furnish to it a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made; (viii) otherwise use its best efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable (but not more than eighteen months after the effective date of such registration statement), an earnings statement covering the period of at least twelve months beginning with the first full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder; (ix) provide and cause to be maintained a transfer agent and registrar (which, in each case, may be the Company) for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration; and (x) use its best efforts to list all Registrable Securities covered by such registration statement on any national securities exchange on which Registrable Securities of the same class covered by such registration statement are then listed and, if no such Registrable Securities are so listed, on any national securities exchange on which the Common Stock is then listed. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish the Company such information regarding such seller and the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in subdivision (vii) of this Section 2.3, such holder will forthwith discontinue such holder's disposition of Registrable Securities pursuant to the registration statement relating to such Registrable Securities until such holder's receipt of the copies of the supplemented or amended prospectus contemplated by subdivision (vii) of this Section 2.3 and, if so directed by the 12 Company, will deliver to the Company (at the Company's expense) all copies, other than permanent file copies, then in such holder's possession of the prospectus relating to such Registrable Securities current at the time of receipt of such notice. 2.4 Underwritten Offerings. (a) Requested Underwritten Offerings. If requested by the underwriters for any underwritten offering by holders of Registrable Securities pursuant to a registration requested under Section 2.1, the Company will enter into an underwriting agreement with such underwriters for such offering, such agreement to be reasonably satisfactory in substance and form to the Childs Representative on behalf of the holders of Registrable Securities representing at least 50% of all Registrable Securities and the underwriters and to contain such representations and warranties by the Company and such other terms as are generally prevailing in agreements of that type, including, without limitation, indemnities to the effect and to the extent provided in Section 2.7 or such other indemnities as are customarily received by underwriters in public offerings of similar securities. The holders of the Registrable Securities proposed to be sold by such underwriters will reasonably cooperate with the Company in the negotiation of the underwriting agreement. Such holders of Registrable Securities to be sold by such underwriters shall be parties to such underwriting agreement and may, at their option, require that any or all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such holders of Registrable Securities and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement be conditions precedent to the obligations of such holders of Registrable Securities. No holder of Registrable Securities shall be required to make any representations or warranties to or agreements with the Company other than representations, warranties or agreements regarding such holder, such holder's Registrable Securities and such holder's intended method of distribution or any other representations required by applicable law. (b) Incidental Underwritten Offerings. If the Company proposes to register any of its securities under the Securities Act as contemplated by Section 2.2 and such securities are to be distributed by or through one or more underwriters, the Company will, if requested by any Requesting Holder of Registrable Securities, use its reasonable best efforts to arrange for such underwriters to include all the Registrable Securities to be offered and sold by such Requesting Holder among the securities of the Company to be distributed by such underwriters, subject to the provisions of Section 2.2(b). The holders of Registrable Securities to be distributed by such underwriters shall be parties to the underwriting agreement between the Company and such underwriters and may, at their option, require that any or all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters 13 shall also be made to and for the benefit of such holders of Registrable Securities and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement be conditions precedent to the obligations of such holders of Registrable Securities. Any such Requesting Holder of Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Requesting Holder, such Requesting Holder's Registrable Securities and such Requesting Holder's intended method of distribution or any other representations required by applicable law. 2.5 Preparation; Reasonable Investigation. In connection with the preparation and filing of each registration statement under the Securities Act pursuant to this Agreement, the Company will give the Childs Representative on behalf of the holders of Registrable Securities to be registered under such registration statement, their underwriters, if any, and their respective counsel the opportunity to participate in the preparation of such registration statement, each prospectus included therein or filed with the Commission, and each amendment thereof or supplement thereto, and will give each of them such reasonable access to its books and records and such opportunities to discuss the business of the Company with its officers and the independent public accountants who have certified its financial statements as shall be necessary, in the opinion of such holders' and such underwriters' respective counsel, to conduct a reasonable investigation within the meaning of the Securities Act. 2.6 Limitations, Conditions and Qualifications to Obligations under Registration Covenants. The Company shall be entitled to postpone for a reasonable period of time (but not exceeding 90 days) the filing of any registration statement otherwise required to be prepared and filed by it pursuant to Section 2.1 if the Company determines, in its reasonable judgment, that such registration and offering would interfere with any financing, acquisition, corporate reorganization or other material transaction involving the Company and promptly gives the holders of Registrable Securities requesting registration thereof pursuant to Section 2.1 written notice of such determination, containing a general statement of the reasons for such postponement and an approximation of the anticipated delay. If the Company shall so postpone the filing of a registration statement, holders of Registrable Securities requesting registration thereof pursuant to Section 2.1, representing not less than 50% of the Registrable Securities with respect to which registration has been requested, shall have the right to withdraw the request for registration by giving written notice to the Company within 30 days after receipt of the notice of postponement and, in the event of such withdrawal, such request shall not be counted for purposes of the requests for registration to which holders of Registrable Securities are entitled pursuant to Section 2.1 hereof. 14 2.7 Indemnification. (a) Indemnification by the Company. The Company will, and hereby does, indemnify and hold harmless, in the case of any registration statement filed pursuant to Section 2.1 or 2.2, each seller of any Registrable Securities covered by such registration statement and each other Person who participates as an underwriter in the offering or sale of such securities and each other Person, if any, who controls such seller or any such underwriter within the meaning of the Securities Act or the Exchange Act, and their respective directors, officers, partners, agents and affiliates, against any losses, claims, damages or liabilities, joint or several, to which such seller or underwriter or any such director, officer, partner, agent, affiliate or controlling person may become subject under the Securities Act or otherwise, including, without limitation, the reasonable fees and expenses of legal counsel, insofar as such losses, claims, damages or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such securities were registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will reimburse such seller or underwriter and each such director, officer, partner, agent, affiliate and controlling Person for any reasonable legal or any other expenses incurred by them in connection with investigating or defending any such loss, claim, liability, action or proceeding; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written information furnished to the Company by or on behalf of such seller or underwriter, as the case may be, specifically stating that it is for use in the preparation thereof; provided, further, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability or expense arises out of or is based upon an untrue statement or alleged untrue statement of any material fact contained in any such registration statement, preliminary prospectus, final prospectus or summary prospectus contained therein or any omission to state therein a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances in which they were made not misleading in a prospectus or prospectus supplement, if such untrue statement or omission is completely corrected in an amendment or supplement to such prospectus or prospectus supplement, the seller of the Registrable Securities has an obligation under the Securities Act to deliver a prospectus or prospectus supplement in connection with such sale of Registrable Securities and the seller of Registrable 15 Securities thereafter fails to deliver such prospectus or prospectus supplement as so amended or supplemented prior to or concurrently with the sale of Registrable Securities to the person asserting such loss, claim, damage or liability after the Company has furnished such seller with a sufficient number of copies of the same. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such seller or underwriter or any such director, officer, partner, agent, affiliate or controlling person and shall survive the transfer of such securities by such seller or underwriter. (b) Indemnification by the Sellers. As a condition to including any Registrable Securities in any registration statement, the Company shall have received an undertaking reasonably satisfactory to it from the prospective seller of such Registrable Securities, to indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 2.7(a)) the Company, and each director of the Company, each officer of the Company and each other Person, if any, who participates as an underwriter in the offering or sale of such securities and each other Person who controls the Company or any such underwriter within the meaning of the Securities Act or the Exchange Act, with respect to any statement or alleged statement in or omission or alleged omission from such registration statement, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such seller specifically stating that it is for use in the preparation of such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement; provided, however, that the liability of such indemnifying party under this Section 2.7(b) shall be limited to the amount of proceeds received by such indemnifying party in the offering giving rise to such liability. Such indemnity shall remain in full force and effect, regardless of any investigation made by or on behalf of the Company or any such director, officer or controlling person and shall survive the transfer of such securities by such seller. (c) Notices of Claims, etc. Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding involving a claim referred to in Section 2.7(a) or (b), such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the latter of the commencement of such action; provided, however, that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under the preceding subdivisions of this Sec tion 2.7, except to the extent that the indemnifying party is actually and materially prejudiced by such failure to give notice. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it may wish, to assume the defense thereof, with counsel 16 reasonably satisfactory to such indemnified party; provided, however, that any indemnified party may, at its own expense, retain separate counsel to participate in such defense. Notwithstanding the foregoing, in any action or proceeding in which both the Company and an indemnified party is, or is reasonably likely to become, a party, such indemnified party shall have the right to employ separate counsel at the Company's expense and to control its own defense of such action or proceeding if, in the reasonable opinion of counsel to such indemnified party, (a) there are or may be legal defenses available to such indemnified party or to other indemnified parties that are different from or additional to those available to the Company or (b) any conflict or potential conflict exists between the Company and such indemnified party that would make such separate representation advisable; provided, however, that in no event shall the Company be required to pay fees and expenses under this Section 2.7 for more than one firm of attorneys representing the indemnified parties (together, if appropriate, with one firm of local counsel per jurisdiction) in any one legal action or group of related legal actions. No indemnifying party shall be liable for any settle ment of any action or proceeding effected without its written consent, which consent shall not be unreasonably withheld. No indemnifying party shall, without the consent of the indemnified party, which consent shall not be unreasonably withheld, consent to entry of any judgment or enter into any settlement which does not include as a term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation or which requires action other than the payment of money by the indemnifying party. (d) Contribution. If the indemnification provided for in this Section 2.7 shall for any reason be held by a court to be unavailable to an indemnified party under Section 2.7(a) or (b) hereof in respect of any loss, claim, damage or liability, or any action in respect thereof, then, in lieu of the amount paid or payable under Section 2.7(a) or (b), the indemnified party and the indemnifying party under Section 2.7(a) or (b) shall contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating the same), (i) in such proportion as is appropriate to reflect the relative fault of the Company and the prospective sellers of Registrable Securities covered by the registration statement which resulted in such loss, claim, damage or liability, or action or proceeding in respect thereof, with respect to the statements or omissions which resulted in such loss, claim, damage or liability, or action or proceeding in respect thereof, as well as any other relevant equitable considerations or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as shall be appropriate to reflect the relative benefits received by the Company and such prospective sellers from the offering of the securities covered by such registration statement, provided, that for purposes of this clause (ii), the relative benefits received by the prospective sellers shall be deemed not to exceed the amount of proceeds received by such prospective sellers. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not 17 guilty of such fraudulent misrepresentation. Such prospective sellers' obligations to contribute as provided in this Section 2.7(d) are several in proportion to the relative value of their respective Registrable Securities covered by such registration statement and not joint. In addition, no Person shall be obligated to contribute hereunder any amounts in payment for any settlement of any action or claim effected without such Person's consent, which consent shall not be unreasonably withheld. (e) Other Indemnification. Indemnification and contribution similar to that specified in the preceding subdivisions of this Section 2.7 (with appropriate modifications) shall be given by the Company and each seller of Registrable Securities with respect to any required registration or other qualification of securities under any federal or state law or regulation of any governmental authority other than the Securities Act. (f) Indemnification Payments. The indemnification and contribution required by this Section 2.7 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or expense, loss, damage or liability is incurred. 3. Definitions. As used herein, unless the context otherwise requires, the following terms have the following respective meanings: "Commission" means the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act. "Common Stock" shall mean and include the Common Stock, par value $.01 per share, of the Company and each other class of capital stock of the Company that does not have a preference over any other class of capital stock of the Company as to dividends or upon liquidation, dissolution or winding up of the Company and, in each case, shall include any other class of capital stock of the Company into which such stock is reclassified or reconstituted. "Disinterested Director" means, with respect to any transaction or series of related transactions, a member of the board of directors of the Company who does not have any material direct or indirect financial interest in or with respect to such transaction or series of related transactions. "Exchange Act" means the Securities Exchange Act of 1934, as amended, or any superseding Federal statute, and the rules and regulations promulgated thereunder, all as the same shall be in effect at the time. Reference to a particular section of the Securities Exchange Act of 1934, as amended, shall include a reference to the comparable section, if any, of any such superseding Federal statute. 18 "HWH Agreement" means the Registration Rights Agreement dated as of March 17, 1995 among the Company, HWH Capital Partners, L.P., HWH Valentine Partners, L.P., and HWH Surplus Valentine Partner, L.P. "Incidental Maximum Amount" is defined in Section 2.2(b). "Initiating Holder" is defined in Section 2.1. "Person" means any individual, firm, corporation, partnership, limited liability company or partnership, trust, incorporated or unincorporated association, joint venture, joint stock company, government (or an agency or political subdivision thereof) or other entity of any kind and shall include any successor (by merger or otherwise) of such entity. "Recapture Amount" means the sum of (A) in the event that Selling Holders have requested registration of Registrable Securities representing, in the aggregate, more than the Adjusted Maximum Amount with respect to the first registration effected by the Company pursuant to Section 2.1 hereof, the excess, if any, of (x) the lower of 75% of the Maximum Amount with respect to such registration or the aggregate amount requested by the Selling Holders to be included in such registration, over (y) the number of Registrable Securities included in such registration, plus (B) in the event that Requesting Holders have requested registration of Registrable Securities representing, in the aggregate, more than 15% of the Incidental Maximum Amount with respect to the first registration effected by the Company pursuant to Section 2.1 of the HWH Agreement, the excess, if any, of (x) 15% of such Incidental Maximum Amount, over (y) the number of Registrable Securities included in such registration. The Recapture Amount in respect of any registration effected by the Company pursuant to Section 2.1 hereof or Section 2.1 of the HWH Agreement shall be adjusted to reflect the inclusion of any portion of the Recapture Amount included in any prior registration. "Registrable Securities" means any Shares and any Related Registrable Securities. As to any particular Registrable Securities, once issued, such securities shall cease to be Registrable Securities when (a) a registration statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been disposed of in accordance with such registration statement, (b) they shall have been sold as permitted by Rule 144 (or any successor provision) under the Securities Act, (c) they shall have been otherwise transferred, new certificates for them not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of them shall not require registration of such distribution under the Securities Act, (d) they shall have been transferred or distributed to any limited partner, general partner, member or holder of interests (however called) of any Childs Holder or (e) they shall have ceased to be outstanding. 19 "Registration Expenses" means all expenses incident to the Company's performance of or compliance with Section 2, including, without limitation, all registration and filing fees, all fees of the New York Stock Exchange, other national securities exchanges or the National Association of Securities Dealers, Inc., all fees and expenses of complying with securities or blue sky laws, all word processing, duplicating and printing expenses, messenger and delivery expenses, the fees and disbursements of counsel for the Company and of its independent public accountants, including the expenses of "comfort" letters required by or incident to such performance and compliance, any fees and disbursements of underwriters customarily paid by issuers or sellers of securities (excluding any underwriting discounts or commissions with respect to the Registrable Securities) and the reasonable fees and expenses of one counsel to the Selling Holders (selected by Selling Holders representing at least 50% of the Registrable Securities covered by such registration); provided, however, that in the event the Company shall determine, in accordance with Section 2.2(a) or Section 2.6, not to register any securities with respect to which it had given written notice of its intention to so register to holders of Registrable Securities, all of the costs of the type (and subject to any limitation to the extent) set forth in this definition and incurred by Requesting Holders in connection with such registration on or prior to the date the Company notifies the Requesting Holders of such determination shall be deemed Registration Expenses. "Related Registrable Securities" means with respect to the Shares any securities of the Company issued or issuable with respect to any of the Shares by way of a dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise. "Requesting Holder" is defined in Section 2.2. "Securities Act" means the Securities Act of 1933, as amended, or any superseding Federal statute, and the rules and regulations promulgated thereunder, all as the same shall be in effect at the time. References to a particular section of the Securities Act of 1933, as amended, shall include a reference to the comparable section, if any, of any such superseding Federal statute. "Securityholder" means any of the parties to the HWH Agreement and the Stockholders Agreement, respectively, in each case other than the Company. "Selling Holder" is defined in Section 2.1. "Stockholders Agreement" means the Amended and Restated Stockholders Agreement, dated as of November 5, 1991, by and among Playtex FP Group Incorporated, the management investors listed on Schedule A thereto, ML-Lee Acquisition Fund, L.P., Thomas H. Lee Company and the related persons thereof set forth on Schedule B thereto, Chesterfield Investments and Sara Lee Corporation, as 20 amended by Amendment No. 1, dated as of March 17, 1995 and effective as of June 6, 1995, by and among the Company, Joel E. Smilow, Richard Smilow Trust, William Smilow Trust, Susan Varsa Trust, Hercules P. Sotos, Christina Sotos Trust, Peter Sotos Trust, Cynthia Sotos Trust, Calvin J. Gauss and the 1989 Thomas H. Lee Nominee Trust, dated as of September 29, 1989. 4. Rule 144 and Rule 144A. The Company shall take all actions reasonably necessary to enable holders of Registrable Securities to sell such securities without registration under the Securities Act within the limitation of the provisions of (a) Rule 144 under the Securities Act, as such Rule may be amended from time to time, (b) Rule 144A under the Securities Act, as such Rule may be amended from time to time, or (c) any similar rules or regulations hereafter adopted by the Commission. Upon the request of any holder of Registrable Securities, the Company will deliver to such holder a written statement as to whether it has complied with such requirements. 5. Amendments and Waivers. This Agreement may be amended with the consent of the Company and the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company shall have obtained the written consent to such amendment, action or omission to act, of the holder or holders of at least 50% of the Registrable Securities affected by such amendment, action or omission to act. Each holder of any Registrable Securities at the time or thereafter outstanding shall be bound by any consent authorized by this Section 5, whether or not such Registrable Securities shall have been marked to indicate such consent. 6. Nominees for Beneficial Owners. In the event that any Registrable Securities are held by a nominee for the beneficial owner thereof, the beneficial owner thereof may, at its election in writing delivered to the Company, be treated as the holder of such Registrable Securities for purposes of any request or other action by any holder or holders of Registrable Securities pursuant to this Agreement or any determination of any number or percentage of shares of Registrable Securities held by any holder or holders of Registrable Securities contemplated by this Agreement. If the beneficial owner of any Registrable Securities so elects, the Company may require assurances reasonably satisfactory to it of such owner's beneficial ownership of such Registrable Securities. 7. Appointment of Representative. Each Childs Holder hereby authorizes and appoints the Principal Stockholder as its representative and agent for purposes of accepting and delivering notices and taking actions hereunder on behalf of each such Childs Holder hereunder and the Company acknowledges and consents thereto. The Principal Stockholder acting in such capacity is sometimes referred to herein as the "Childs Representative." 21 8. Notices. All notices, demands and other communications provided for or permitted hereunder shall be made in writing and shall be by registered or certified first-class mail, return receipt requested, telecopier, courier service or personal delivery: (a) if to the Principal Stockholder, addressed to it in the manner set forth in the Merger Agreement, or at such other address as it shall have furnished to the Company in writing in the manner set forth herein; or (b) if to the Company, addressed to it in the manner set forth in the Merger Agreement, or at such other address as the Company shall have furnished to each holder of Registrable Securities at the time outstanding in the manner set forth herein. All such notices and communications shall be deemed to have been duly given: when delivered by hand, if personally delivered; when delivered by a courier, if delivered by overnight courier service; three business days after being deposited in the mail, postage prepaid, if mailed; and when receipt is acknowledged, if telecopied. 9. Assignment. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and, with respect to the Company only, its respective successors and permitted assigns. 10. Calculation of Percentage Interests in Registrable Securities. For purposes of this Agreement, all references to a percentage of the Registrable Securities shall be calculated based upon the number of Registrable Securities out standing at the time such calculation is made. 11. No Inconsistent Agreements. The Company will not hereafter enter into any agreement with respect to its securities, or modify, amend, supplement or extend any existing agreement with respect to its securities, which is or will be inconsistent with the rights granted to the holders of Registrable Securities in this Agreement. 12. Remedies. Each holder of Registrable Securities, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agrees to waive the defense in any action for specific performance that a remedy at law would be adequate. 22 13. Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be in any way impaired thereby, it being intended that all of the rights and privileges of the Principal Stockholder shall be enforceable to the fullest extent permitted by law. 14. Entire Agreement. This Agreement, together with the Merger Agreement (including the exhibits and schedules thereto) and the Stockholders Agreement, is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein and therein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein and therein. This Agreement, the Merger Agreement (including the exhibits and schedules thereto) and the Stockholders Agreement supersede all prior agreements and understandings between the parties with respect to such subject matter. 15. Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. 16. Governing Law. This Agreement has been negotiated, executed and delivered in the State of New York and shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law. 17. Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed an original and all of which taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their respective representatives hereunto duly authorized as of the date first above written. PLAYTEX PRODUCTS, INC. By: /s/ Michael F. Goss Name: Michael F. Goss Title: Executive Vice President and Chief Financial Officer 23 J.W. CHILDS EQUITY PARTNERS, L.P. By: J.W. CHILDS ADVISORS, L.P., its general partner By: J.W. Childs Associates, L.P., its general partner By: J.W. Childs Associates, Inc. By: /s/ Adam L. Suttin Name: Adam L. Suttin Title: Vice President Schedule 2.1(e) Acceptable Underwriters: Merrill Lynch & Co., Inc. Morgan Stanley, Dean Witter, Discover & Co. Salomon Brothers Inc. Donaldson Lufkin & Jenrette NationsBank Montgomery Goldman, Sachs & Co. BT Alex Brown Incorporated Credit Suisse First Boston PaineWebber Incorporated
Schedule A Bock Family Trust James D. Murphy and Diane G. Murphy J.W. Childs Equity Partners, L.P. Joseph Pachella James E. Childs Leslie A. Paparone John W. Childs Jay E. Politi Richard S. Childs Kenneth F. Reilly The Dowds Family Investment Trust Joel Slank Kenneth M. Evans Daniel M. Synan Adam T. Feild Anne Tashjian Timothy J. Healy James D. Tates Glenn A. Hopkins Sharad B. Tilak Jerry D. Horn Paul W. Tonnesen Alan R. Koss Revocable Living Trust Mariane Wojcicki Alan R. Koss Karen A. August Lambros J. Lambros Dennis G. Podlesak Stephanie L. Mansfield Julie B. Sweeney Lawrence J. Mansfield and Edith R. Mansfield Neil P. Guller Jenny Childs Preston Stephen K. Carrico Raymond B. Rudy Michael Fleury Steven G. Segal James P. Garvey Steven G. Segal 1995 Irrevocable Trust Marcie J. Griesmeyer SGS 1995 Family Limited Partnership David Hays SGS-III Family Limited Partnership Kim Levine Mario E. Soussou Michael Cox Adam L. Suttin Rebecca Cushing Suttin Family Trust Teresita Eugenio Gagan Verma Peter Gower Stephen H. Wise Thomas Horton Catherine Durden Lee Jacobs Michael P. Ferry Loren Block Debra T. Follick Christina Bartolick Bruce A. Goldsmith Cheryl Lawler William R. Kinder Michael J. Metzger Donald W. Miller Dennis L. Moore Donald G. Morgan
EX-99.4 5 EXHIBIT 99.4 Subscription Letter (for J.W. Childs & Participants) Personal Care Holdings, Inc. c/o J.W. Childs Associates, L.P. One Federal Street, 21st Floor Boston, Massachusetts 02110 Gentlemen: The undersigned hereby offers to purchase the aggregate number of shares (the "Shares") of the Common Stock, par value $0.01 per share, of Personal Care Holdings, Inc., a Delaware corporation (the "Corporation"), for the cash price, per share and in the aggregate, as set forth on the signature page hereto. The undersigned hereby acknowledges that he/she/it understands that the Shares have not been registered under the Securities Act of 1933, as amended (the "Act"), or any state securities law ("Blue Sky Law") and that the Shares constitute "restricted securities" within the meaning of the rules promulgated under the Act. The undersigned hereby represents to the Corporation that he/she/it will acquire the Shares for his/her/its own account for investment and not with a view to or for sale in connection with any distribution thereof, and that he/she/it has no present intention of selling or distributing any of the Shares. The undersigned further represents to the Corporation that he/she/it has no reason to anticipate any change in his/her/its circumstances or any other particular occasion or event which would cause him/her/it to sell or distribute any of the Shares. The undersigned has completed the section of this subscription letter entitled "Investor General Information". If the undersigned is an "accredited investor" as such term is defined in Regulation D promulgated under the Act, he/she/it has completed the section of this subscription letter entitled "Certification of Accredited Investor Status," and all information he/she/it has provided therein is complete and correct. If the undersigned is not an "accredited investor", he/she/it has completed the attached "Investor Financial Information" and will provide the Corporation with such other information as the Corporation may request in order to determine whether the undersigned meets applicable investment suitability standards. All such information provided by the undersigned is and will be complete and correct. The undersigned agrees that he/she/it will make no sale, assignment or transfer of any interest in any of the Shares in the absence of an effective registration statement under the Act and under applicable Blue Sky Law relating to such transfer of the Shares or an opinion of counsel satisfactory to the Corporation that registration under the Act or Blue Sky Law is not required. The stock certificates for the Shares will bear a legend to this effect. The undersigned acknowledges that he/she/it has been afforded an opportunity to ask such questions and obtain such information as the undersigned has determined necessary in order to understand the risks of purchasing the Shares. The undersigned acknowledges that he/she/it is a "participant" of John W. Childs in respect of the undersigned's investment in the Corporation within the meaning of paragraph 3.07 of the First Amended and Restated Agreement of Limited Partnership of J.W. Childs Equity Partners, L.P. dated as of December 20, 1996 (the "Equity Partners Agreement"), and, accordingly, the undersigned agrees to be bound by all of the provisions of paragraph 3.07 of the Equity Partners Agreement, including, without limitation, the provisions of 3.07(b), and further agrees to be bound by the confidentiality provisions set forth in paragraph 14.08 of the Equity Partners Agreement as if the undersigned were a limited partner under the Equity Partners Agreement. INVESTOR GENERAL INFORMATION (To be completed by all Investors.) Name:___________________________________ Telephone:_______________________ Home Address: ______________________________________________________________ City:_____________________________State:_______________Zip Code: _____________ Name of Business or Employer:__________________________________________Position: ______________ Business Address: ____________________________________________________________ City:_____________________________State:_______________Zip Code: _____________ Telephone:_______________________________________ Date of Birth:_____________________________________ Social Security Number:____________________________ U.S. Citizen: Yes_______ No_______ CERTIFICATION OF ACCREDITED INVESTOR STATUS (To be completed by each "accredited" investor according to the criteria set forth below.) The undersigned qualifies as an "accredited investor" pursuant to Regulation D under the Securities Act of 1933, as amended, as a result of his or her status as (check as appropriate): ____ A natural person whose individual net worth, or joint net worth with his or her spouse, exceeds $1,000,000 (including home, home furnishings and automobiles); ____ A natural person who had an individual income in excess of $200,000 in each of the two most recent years, or joint income with his or her spouse in excess of $300,000 -2- in each of those years, and who reasonably expects an income of the same level in the current year. For this purpose, "income" means individual adjusted gross income for federal income tax purposes, plus (A) any deduction for long-term capital gains under Section 1202 of the Internal Revenue Code of 1986, as amended (the "Code"), (B) any deduction for depletion under Section 611 et seq. of the Code, (C) any exclusion for interest under Section 103 of the Code, and (D) any losses of a partnership allocated to him as reported on Schedule E of Form 1040 or any successor form; ____ A director or executive officer of the Corporation. For this purpose, "executive officer" means its president, any managing director or other officer or other person who performs a policy making function and may include officers of affiliates of the Corporation or if they perform such policy making functions for the Corporation; ____ A trust with total assets greater than $5,000,000 not formed for the purpose of acquiring shares of the Corporation, whose purchase is directed by a person who has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the proposed investment; ____ A trust or other entity in which all of the equity owners/ beneficiaries are "accredited investors" as defined herein in any one or more of the categories specified above; ____ A charitable, educational, religious or other not-for-profit organization described in Section 501(c)(3) of the Code, corporation, Massachusetts or similar business trust, or partnership, with total assets in excess of $5,000,000 and not formed for the specific purpose of acquiring shares of the Corporation. INVESTOR FINANCIAL INFORMATION (To be completed by investors who are not accredited investors according to the criteria set forth above.) Income The approximate amount of my income for the years indicated below is (in 000's): (i) Gross individual (not joint) income for the tax year ended: 1994: Over - $150__ $175__ $200__ $300__ 1995: Over - $150__ $175__ $200__ $300__ (ii) Anticipated individual (not joint) gross income for the tax year ended: 1996: Over - $150__ $175__ $200__ $300__ 1997: Over - $150__ $175__ $200__ $300__ -3- (iii) Gross joint income for the tax year ended: 1994: Over - $150__ $175__ $200__ $300__ 1995: Over - $150__ $175__ $200__ $300__ (iv) Anticipated gross joint income for the tax year ended: 1996: Over - $150__ $175__ $200__ $300__ 1997: Over - $150__ $175__ $200__ $300__ Net Worth (v) My individual net worth is (in 000's): Over - $500__ $750__ Over - $1,000__ $2,000__ $3,000__ (vi) My joint net worth is (in 000's): Over - $500__ $750__ Over - $1,000__ $2,000__ $3,000__ Other Suitability Standards I satisfy at least one of the following criteria: (vii) I, either alone or with a purchaser representative, have such knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risk of an investment in the Corporation. Yes_____ No_____ (viii) I am able to bear the economic risk of an investment in the Corporation, and I am investing no more than 10% of my net worth (or joint net worth with my spouse) in an investment in the Corporation. Yes_____ No_____ [Signatures on the following page.] -4- Signature Page to Subscription Letter Personal Care Holdings, Inc. IN WITNESS WHEREOF, the undersigned has executed, or caused to be executed, this subscription letter for the number of shares and at the aggregate and per share price set forth below. Name: Signature:________________________________ Title (if applicable):____________________ Date:_____________________________________ No. of Shares: Price per share: Aggregate price: The above subscription is hereby accepted this ____ day of ________________, 1996. PERSONAL CARE HOLDINGS, INC. By:_________________________ Title: -5- -----END PRIVACY-ENHANCED MESSAGE-----