-----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, UUxoiOItmDsCd4YiDBmBdbpgoWzFMmuHaz+ClSZAMuj3a3aAarUM+wOonb9znC+w 8t6J60Lbjd3B/PUxBr9gTA== 0000950133-98-002208.txt : 19980604 0000950133-98-002208.hdr.sgml : 19980604 ACCESSION NUMBER: 0000950133-98-002208 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980603 SROS: NONE GROUP MEMBERS: BLUM RICHARD C & ASSOCIATES L P GROUP MEMBERS: RICHARD C. BLUM GROUP MEMBERS: RICHARD C. BLUM & ASSOCIATES, INC. 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/A SEC ACT: SEC FILE NUMBER: 005-45603 FILM NUMBER: 98641628 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: BLUM RICHARD C & ASSOCIATES L P CENTRAL INDEX KEY: 0000938775 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 943205364 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 909 MONTGOMERY STREET # 400 CITY: SAN FRANCISCO STATE: CA ZIP: 94133 MAIL ADDRESS: STREET 1: 909 MONTGOMERY STREET STREET 2: SUITE 400 CITY: SAN FRANCISCO STATE: CA ZIP: 94133 SC 13D/A 1 AMENDMENT NO. 5 TO SCHEDULE 13D 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 5)* PLAYTEX PRODUCTS, INC. (Name of Issuer) Common Stock, Par Value $.01 (Title of Class of Securities) 72813P-10-0 (CUSIP Number) Murray A. Indick Richard C. Blum & Associates, L.P. 909 Montgomery Street, Suite 400 San Francisco, CA 94133 (415) 434-1111 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) June 1, 1998 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]. NOTE: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 2
CUSIP NO. 72813P-10-0 SCHEDULE 13D - ------------------------------------------------------------------------------ 1. NAME OF REPORTING PERSON RICHARD C. BLUM & ASSOCIATES, L.P. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 94-3205364 - ------------------------------------------------------------------------------ 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [ ] - ------------------------------------------------------------------------------ 3. SEC USE ONLY - ------------------------------------------------------------------------------ 4. SOURCE OF FUNDS* See Item 3 below - ------------------------------------------------------------------------------ 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ------------------------------------------------------------------------------ 6. CITIZENSHIP OR PLACE OF ORGANIZATION California - ------------------------------------------------------------------------------ 7. SOLE VOTING POWER -0- NUMBER OF ----------------------------------------------------------- SHARES 8. SHARED VOTING POWER 5,758,700** BENEFICIALLY OWNED BY EACH ----------------------------------------------------------- PERSON WITH 9. SOLE DISPOSITIVE POWER -0- ----------------------------------------------------------- 10. SHARED DISPOSITIVE POWER 5,758,700** - ------------------------------------------------------------------------------ 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,758,700** - ------------------------------------------------------------------------------ 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------------------------ 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.6%** - ------------------------------------------------------------------------------ 14. TYPE OF REPORTING PERSON PN, IA - ------------------------------------------------------------------------------ ** See Item 5 below
*SEE INSTRUCTIONS BEFORE FILLING OUT! 3
CUSIP NO. 72813P-10-0 SCHEDULE 13D - ------------------------------------------------------------------------------ 1. NAME OF REPORTING PERSON RICHARD C. BLUM & ASSOCIATES, INC. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 94-2967812 - ------------------------------------------------------------------------------ 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [ ] - ------------------------------------------------------------------------------ 3. SEC USE ONLY - ------------------------------------------------------------------------------ 4. SOURCE OF FUNDS* See Item 3 below - ------------------------------------------------------------------------------ 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ------------------------------------------------------------------------------ 6. CITIZENSHIP OR PLACE OF ORGANIZATION California - ------------------------------------------------------------------------------ 7. SOLE VOTING POWER -0- NUMBER OF ----------------------------------------------------------- SHARES 8. SHARED VOTING POWER 5,758,700** BENEFICIALLY OWNED BY EACH ----------------------------------------------------------- PERSON WITH 9. SOLE DISPOSITIVE POWER -0- ----------------------------------------------------------- 10. SHARED DISPOSITIVE POWER 5,758,700** - ------------------------------------------------------------------------------ 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,758,700** - ------------------------------------------------------------------------------ 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------------------------ 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.6%** - ------------------------------------------------------------------------------ 14. TYPE OF REPORTING PERSON CO - ------------------------------------------------------------------------------ ** See Item 5 below
*SEE INSTRUCTIONS BEFORE FILLING OUT! 4
CUSIP NO. 72813P-10-0 SCHEDULE 13D - ------------------------------------------------------------------------------ 1. NAME OF REPORTING PERSON RICHARD C. BLUM S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON - ------------------------------------------------------------------------------ 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [ ] - ------------------------------------------------------------------------------ 3. SEC USE ONLY - ------------------------------------------------------------------------------ 4. SOURCE OF FUNDS* See Item 3 below - ------------------------------------------------------------------------------ 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ------------------------------------------------------------------------------ 6. CITIZENSHIP OR PLACE OF ORGANIZATION California - ------------------------------------------------------------------------------ 7. SOLE VOTING POWER -0- NUMBER OF ----------------------------------------------------------- SHARES 8. SHARED VOTING POWER 5,758,700** BENEFICIALLY OWNED BY EACH ----------------------------------------------------------- PERSON WITH 9. SOLE DISPOSITIVE POWER -0- ----------------------------------------------------------- 10. SHARED DISPOSITIVE POWER 5,758,700** - ------------------------------------------------------------------------------ 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,758,700** - ------------------------------------------------------------------------------ 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------------------------ 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.6%** - ------------------------------------------------------------------------------ 14. TYPE OF REPORTING PERSON IN - ------------------------------------------------------------------------------ ** See Item 5 below
*SEE INSTRUCTIONS BEFORE FILLING OUT! 5 CUSIP NO. 72813P-10-0 SCHEDULE 13D This Amendment No. 5 amends the Statement on Schedule 13D (the "Schedule 13D") filed with the Securities and Exchange Commission (the "Commission") on December 4, 1997 by Richard C. Blum & Associates, L.P., a California limited partnership ("RCBA L.P."); Richard C. Blum & Associates, Inc., a California corporation ("RCBA Inc."); and Richard C. Blum, the Chairman and a substantial shareholder of RCBA Inc. (collectively, and together with RCBA-Playtex, L.P., the "Reporting Persons"). The principal executive office and mailing address of the Issuer is 300 Nyala Farms Road, Westport, CT 06880. The following amendments to Items 4,5 and 6 of the Schedule 13D are hereby made. Unless otherwise defined herein, all capitalized terms shall have the meanings ascribed to them in the Schedule 13D. ITEM 4. PURPOSE OF TRANSACTION Item 4 of the Schedule 13D is amended as follows: As set forth in Item 6 below, on June 1, 1998, pursuant to agreements attached hereto as Exhibits B, C and D, the Reporting Persons have agreed to acquire an additional six million (6,000,000) shares of the securities of the Issuer, the Issuer has agreed to elect two persons designated by the Reporting Persons to the Board of Directors of the Issuer, the Reporting Persons and other shareholders of the Issuer have agreed to vote their shares in support of all nominees for director nominated by the Board of Directors, the Reporting Persons have agreed to limit their acquisition of additional shares to two million (2,000,000) and the Issuer has granted certain registration rights to the Reporting Persons. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER Item 5 of the Schedule 13D is hereby amended as follows: (a),(b) According to the Issuer's most recent Form 10-Q, there were 60,296,851 shares of Common Stock issued and outstanding as of May 11, 1998. Based on such information, after taking into account the transactions described in Item 5(c) below, the Reporting Persons report direct holdings of 4,829,900 shares of the Common Stock on behalf of its clients, which represents 8% of the outstanding shares of the Common Stock. In addition, because RCBA L.P. has voting and investment power with respect to 928,800 shares that are legally owned by The Common Fund for the account of its Equity Fund ("The Common Fund"), those shares are reported as beneficially owned by RCBA L.P. The Common Fund is principally engaged in the business of managing investments for educational institutions. The principal administrative office of The Common Fund is located at 450 Post Road East, Westport, Connecticut 06881-0909. The Common Fund disclaims membership in a group with any of the Reporting Persons, and disclaims beneficial ownership of any shares held by the Reporting Persons. Voting and investment power concerning the above shares are held solely by RCBA L.P. The Reporting Persons therefore may be deemed to be members in a 6 group, in which case each Reporting Person would be deemed to have beneficial ownership of an aggregate of 5,758,700 shares of the Common Stock, which is 9.6% of the outstanding Common Stock. As the sole general partner of RCBA L.P., RCBA Inc. is deemed the beneficial owner of the securities over which RCBA L.P. has voting and investment power. As Chairman, director and a substantial shareholder of RCBA Inc., Richard C. Blum might be deemed to be the beneficial owner of the securities beneficially owned by RCBA Inc. CUSIP NO. 72813P-10-0 SCHEDULE 13D Although Mr. Blum is joining in this Schedule as a Reporting Person, the filing of this Schedule shall not be construed as an admission that he, or any of the other shareholders, directors or executive officers of RCBA Inc. is, for any purpose, the beneficial owner of any of the securities that are beneficially owned by RCBA Inc. (c) During the last 60 days, the Reporting Persons purchased the following shares of Common Stock in the open market:
Trade Date Shares Price/Share - ---------- ------- ----------- 04-09-98 5,600 14.48 04-09-98 1,400 14.49 04-14-98 60,400 14.07 04-14-98 8,800 14.07 04-14-98 21,100 14.07 04-14-98 10,900 14.07 04-14-98 5,700 14.07 04-14-98 4,100 14.07 04-16-98 7,500 14.25 04-20-98 10,000 14.50 04-23-98 11,400 15.50 04-23-98 1,600 15.50 04-23-98 2,800 15.50 04-23-98 11,100 15.50 04-23-98 2,500 15.50 04-23-98 400 15.53 04-27-98 6,900 15.25 04-27-98 1,000 15.25 04-27-98 1,800 15.25 04-27-98 5,800 15.25 04-27-98 1,300 15.25 04-27-98 300 15.25 05-01-98 4,200 15.09 05-01-98 600 15.09 05-01-98 1,100 15.09 05-01-98 3,200 15.09 05-01-98 700 15.11 05-01-98 200 15.15
7 (d) and (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER Item 6 is amended as follows: None of the Reporting Persons or, to the best knowledge of the Reporting Persons, the other persons named in Item 2, is a party to any contract, arrangement, understanding or relationship with respect to any securities of the Issuer, including but not limited to the transfer or voting of any securities of the Issuer, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies, except (i) as previously CUSIP NO. 72813P-10-0 SCHEDULE 13D disclosed, (ii) as noted above, RCBA L.P. has voting and investment power of the shares held by it for the benefit of the Common Fund and (iii) agreements entered into on June 1, 1998, attached hereto as Exhibits B, C and D, pursuant to which (a) the Reporting Persons have agreed to acquire an additional six million (6,000,000) shares of the securities of the Issuer, (b) the Issuer has agreed to elect two persons designated by the Reporting Persons to the Board of Directors of the Issuer, (c) the Reporting Persons and other shareholders of the Issuer have agreed to vote their shares in support of all nominees for director nominated by the Board of Directors,(d) the Reporting Persons have agreed to limit their acquisition of additional shares to two million (2,000,000) and (e) the Issuer has granted certain registration rights to the Reporting Persons. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Exhibit B Stock Purchase Agreement Exhibit C Stockholders Agreement Exhibit D Registration Rights Agreement 8 SIGNATURES After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct. Dated: June 2, 1998 RICHARD C. BLUM & ASSOCIATES, L.P. RICHARD C. BLUM & ASSOCIATES, INC. By /s/ Murray A. Indick By /s/ Murray A. Indick ------------------------------- ----------------------------------- Murray A. Indick Murray A. Indick Managing Director Managing Director, General Counsel and General Counsel and Secretary /s/ Murray A. Indick --------------------------------------- RICHARD C. BLUM By Murray A. Indick, Attorney-in-Fact
EX-99.B 2 STOCK PURCHASE AGREEMENT 1 STOCK PURCHASE AGREEMENT This Stock Purchase Agreement (this "Agreement") is entered into as of June 1, 1998 between J.W. Childs Equity Partners, L.P. (the "Seller"), RCBA Playtex, L.P. (the "Buyer"), and Richard C. Blum & Associates, Inc. (the "Guarantor"). BACKGROUND A. The Seller is the owner of a total of in excess of six million (6,000,000) shares of Common Stock (the "Shares") of Playtex Products, Inc., a Delaware corporation (the "Company"). B. Richard C. Blum & Associates, L.P., a California limited partnership ("RCBA"), is the general partner of RCBA Playtex, L.P., and RCBA is also the beneficial owner of shares of the Company through limited partnerships for which it serves as general partner and managed accounts for which it serves as investment adviser. C. The Seller desires to sell, and the Buyer desires to purchase, all of the Shares upon the terms and conditions set forth in this Agreement. NOW, THEREFORE, the parties agree as follows: 1. Basic Transaction. (a) Purchase of Shares. Pursuant to the terms and conditions set forth below, the Seller shall sell 6,000,000 Shares to Buyer, and Buyer shall purchase those Shares from Seller. Seller may assign its rights in whole or in part at any time and from time to time before the Closing to sell Shares hereunder to any one or more of those persons listed on Schedule A hereto, so long as (i) such assignees become signatories to this Agreement, (ii) RCBA shall be reasonably satisfied they have the capacity to perform the obligations of Seller in respect of their Shares, and (iii) the aggregate number of Shares subject to this Agreement is 6,000,000. Buyer may assign its rights to purchase some or all of its Shares to any of its Affiliates listed on Schedule B hereto, all of whom are presently stockholders of the Company. (b) Purchase Price. The purchase price is $13.25 per Share, for a total purchase price of $79.5 million for the 6,000,000 Shares. 2. Conditions; Closing. (a) Buyer's Conditions. The Buyer's obligations under this Agreement are conditioned upon (i) the Company's execution of a Stockholders Agreement with the Buyer, (ii) all of the Shares being sold to the Buyer, (iii) the waiting period under the Hart-Scott-Rodino Antitrust Improvements Acts of 1976 ("HSR") shall have expired or been terminated, to the extent applicable, (iv) there shall be no judgment, injunction, order or decree enjoining the Buyer from consummating the transactions contemplated by this Agreement, (v) the representations and warranties of Seller and the Guarantor shall be true and correct, (vi) the Company's performance of its obligations under a certain Letter Agreement dated June 1, 1998 with the Seller, and (vii) 1 2 receipt by the Seller of a written consent to the sale by John W. Childs and Steven G. Segal of shares of Common Stock from Donaldson Lufkin & Jenrette International ("DLJ Consent"). (b) Seller's Conditions. The Seller's obligations under this Agreement are conditioned upon (i) all of the Shares being bought by the Buyer, (ii) the waiting period under the HSR shall have expired or been terminated, to the extent, applicable, (iii) there shall be no judgment, injunction, order or decree enjoining the Seller from consummating the transactions contemplated by this Agreement, (iv) the representations and warranties of Buyer and Guarantor shall be true and correct, (v) the Company's performance of its obligations under a certain Letter Agreement dated June 1, 1998 with the Seller, and (vi) receipt by the Seller of a written consent to the sale by John W. Childs and Steven G. Segal of shares of Common Stock from Donaldson Lufkin & Jenrette International ("DLJ Consent"). (c) Settlement Date. If the conditions in Sections 2(a) and 2(b) are satisfied or waived, settlement (the "Closing") shall occur one (1) business day after the expiration or termination of the waiting period under the HSR. In exchange for the Seller's good delivery of the Shares being transferred at settlement, the Buyer will wire transfer immediately available funds into the Seller's account an amount equal to the purchase price of the Shares being transferred, pursuant to wire transfer instructions to be provided by the Seller to RCBA. (d) Termination. This Agreement may be terminated by Seller or Buyer if the Closing has not occurred on or before July 31, 1998. If this Agreement is terminated, the Agreement shall become void and of no effect, except that any party shall remain liable for any breach of his obligations prior to termination. 3. Representations of Seller. The Seller represents, warrants and covenants to the Buyer that: (a) Ownership. Such Seller owns its Shares free and clear of any pledge, lien, charge, claim, security interest or other encumbrance of any kind, nature or description. Seller has been assured by the Company that such Seller's Shares are validly issued, fully paid and non-assessable. (b) Authority and Compliance. Subject to receipt of the DLJ Consent, such Seller has full power and authority to transfer its Shares and has complied with or will comply with all legal requirements, if any, in connection with the sale of its Shares. Subject to receipt of the DLJ Consent, such transfer will not violate the rights of any third party. (c) No Restrictions. Subject to receipt of the DLJ Consent, the Shares being transferred by such Seller are either free of any transfer restrictions applicable to such Seller or, if there are any transfer restrictions, such Seller has received assurances from the Company and/or its counsel that such restrictions will not prevent the transfer of such Shares pursuant to the terms set forth in this Agreement. 4. Representations of Buyer. The Buyer represents, warrants and covenants to the Seller that: (a) Accredited. Such Buyer is or will be an accredited investor as defined in Regulation D under The Securities Act of 1933, as amended (the "Securities Act"). 2 3 (b) Investment Intent. The Shares being acquired by the Buyer are being acquired for investment for Buyer's own account, and not with a view to a prompt distribution of any part thereof. (c) Transfer. Such Buyer understands that it must bear the economic risk of this investment in the Shares for an indefinite period of time because such Shares cannot be transferred by such Buyer unless such transfer is registered under the Securities Act or an exemption from such registration is available, and such share certificates will bear a legend to such effect. (d) Authority and Compliance. Such Buyer has or will have full power and authority to purchase its Shares and has complied with or will comply with all legal requirements, if any, in connection with the purchase of its Shares. 4A. Representations and Warranties of Guarantor. The Guarantor represents, warrants and covenants to the Seller that: (a) Authority. Such Guarantor has the full power and authority to (i) unconditionally guarantee the obligations of the Buyer pursuant to this Agreement and (ii) perform all of such obligations in the place of the Buyer in the event the Buyer fails to so perform. (b) Financial Capability. The Guarantor has sufficient net worth to pay the aggregate purchase price for the Shares in accordance with the provisions of this Agreement. 5. Miscellaneous. (a) Further Action. Each party agrees to use best efforts to take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement. (b) Entire Agreement; Successors and Assigns. This Agreement constitutes the entire understanding among the parties with regard to the subjects hereof, superseding all prior understandings, agreements, representations and negotiations, whether oral or written. The terms and conditions of this Agreement will inure to the benefit of, and be binding upon, the respective executors, administrators, heirs, successors and assigns of the parties. (c) Choice of Law. This agreement will be interpreted and enforced in accordance with the laws of the State of Delaware as applied to contracts executed and performed entirely therein. (d) Counterparts. This Agreement may be signed in any number of counterparts and by facsimile, and when so signed and delivered will have the same effect as if all signatures appeared on the same document. (e) Notices. All notices required or permitted under this Agreement must be given in writing (which may include facsimile). All notices will be effective upon the earlier of (i) receipt (including confirmation that a facsimile has been received) or (ii) five business days after being deposited in the U.S. mail or two business days after being delivered to an overnight 3 4 courier, in each case properly addressed as set forth on Schedule A or B (as the case may be), as such address may be changed by proper notice to the other parties. (f) Interpretation. All parties have been assisted by counsel in connection with this Agreement. The normal rule of construction that any ambiguity will be resolved against the drafting party will not be used in the interpretation of this Agreement. (g) Gender and Number. As the context so requires, (i) the masculine gender will include the feminine and neuter, and vice versa, and (ii) the singular will include the plural, and vice versa. (h) Amendment of Agreement. This Agreement may be amended only by a written instrument signed by all of the parties. (i) Severability. If any provision of this Agreement or the application of any such provision to any party is held by a court of competent jurisdiction to be contrary to law, such provision will be deemed amended to the minimum extent possible to comply with such law, and the remaining provisions of this Agreement will remain in full force and effect. (j) Attorneys' Fees. If it becomes necessary for any party to initiate legal action or any other proceeding to enforce, defend or construe such party's rights or obligations under this Agreement, the prevailing party will be entitled to reasonable costs and expenses, including attorneys' fees and costs, incurred and paid in connection with such action or proceeding. (k) Fees and Expenses. The Seller, on the one hand, and the Buyer, on the other, shall each bear their own respective fees and costs in connection with the negotiation and execution of this Agreement and the consummation of the transactions contemplated hereby, including the payment of any commission, finder's fee or similar payment because of any act or omission by such party. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 4 5 IN WITNESS WHEREOF, the parties hereby have executed this Agreement as of the date set forth above. THE SELLER: J.W. Childs Equity Partners, L.P., By: J.W. Childs Advisors, L.P., its general partner By: J.W. Childs Associates, L.P., its general partner By: J.W. Childs Associates, Inc., its general partner By: ------------------------------ THE BUYER: RCBA Playtex, L.P. By: Richard C. Blum & Associates, L.P., Its general partner By: Richard C. Blum & Associates, Inc., Its general partner By: ------------------------------ 5 6 THE GUARANTOR: Richard C. Blum & Associates, Inc. By: ----------------------------- Its: Managing Director 6 7 SCHEDULE A Permitted Assignee of Seller Bock Family Trust 4,298 John W. Childs 272,902 Richard S. Childs 11,786 James E. Childs 11,786 Adam T. Felid 5,663 Glenn A. Hopkins 17,894 Jerry D. Horn 19,347 Lambros J. Lambros 24,773 Stephanie L. Mansfield 2,149 Lawrence & Edith Mansfield 1,074 Jenny Childs Preston 1,039 Raymond B. Rudy 58,394 Steven G. Segal 67,558 Steven G. Segal 1995 Irrevcable Trust 12,221 SGS 1995 Family Limited Partnership 4,847 SGS III Family Limited Partnership 3,820 Adam L. Suttin 17,894 Suttin Family Trust 9,043 The Dowds Family Investment Trust 1,827 Gagan Verma 2,686 Stephen H. Wise 2,686 Timothy J. Healy 5,333 Michael Cox 1,500 Teresita Eugenio 650 Kenneth M. Evans 5,333 Bruce A. Goldsmith 2,133 Peter Gower 1,875 Neil P. Guller 3,860 Lee Jacobs 1,500 Koss Trust 85,330 Cheryl Lawler 1,875 Kim Levine 2,796 Donald W. Miller 3,199 Dennis L. Moore 10,666 Donald G. Morgan 7,901 Joseph M. Pachella 3,929 Leslie A. Paparone 8,180 Jay E. Politi 1,033 Kenneth F. Reilly 2,133 Joel Slank 2,796 Mario E. Soussou 35,314 James D. Tates 1,066 Sharad B. Tilak 10,666 Marianne Wojcicki 2,133 ----- 754,918 =======
8 SCHEDULE B BUYER'S AFFILIATES Stinson Capital Partners, L.P. Stinson Capital Partners II, L.P. BK Capital Partners IV, L.P. Stinson Capital Fund (Cayman), Ltd. Insurance Company Supported Organizations Pension Plan United Brotherhood of Carpenters and Joiners of America Local Unions and Councils Pension Fund The Carpenters Pension Trust for Southern California The Common Fund B-1 EX-99.C 3 STOCKHOLDERS AGREEMENT 1 EXECUTION COPY STOCKHOLDERS AGREEMENT STOCKHOLDERS AGREEMENT (the "Agreement") dated as of June 1, 1998, between PLAYTEX PRODUCTS, INC., a Delaware corporation (the "Company"), and RCBA PLAYTEX, L.P., a Delaware limited partnership (the "Principal Stockholder"). RECITALS WHEREAS, J.W. Childs Equity Partners, L.P. (the "Seller") and the Principal Stockholder are parties to a Stock Purchase Agreement, dated as of June 1, 1998 (the "Purchase Agreement"), pursuant to which the Principal Stockholder will purchase from the Seller, an aggregate 6,000,000 shares (the "Purchased Shares") of common stock of the Company, par value $.01 ("Common Stock"); and WHEREAS, upon the Closing (as defined in the Purchase Agreement, referred to herein as the "Effective Date"), the Principal Stockholder will hold, in aggregate, 11,758,700 shares of the Common Stock (the "Shares"); NOW, THEREFORE, in consideration of the covenants and agreements set forth herein, the parties hereto agree as follows: ARTICLE I DEFINITIONS 1.1 Definitions.The following terms, whenever used herein, shall have the following meanings for all purposes of this Agreement. 2 2 "1933 Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. "1934 Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. An "Affiliate" of, or a person "affiliated" with, a specified Person, means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified. The term "control" (including the terms "controlling," "controlled by" and "under common control with") means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise. "By-Laws" means the by-laws of the Company. "By-Laws Amendment" means the proposed amendment to the By-Laws in the form attached as Exhibit A hereto. "Transfer" or "Transferred" means, in relation to any share of Common Stock, any sale, assignment, transfer or disposition by gift or otherwise, including without limitation, any distribution in liquidation or otherwise by a corporation or partnership; provided, however, that "Transfer" does not mean, with respect to any such share of Common Stock, any pledge, mortgage, hypothecation or grant of a security interest therein. "Person" means any individual, firm, corporation, partnership, limited liability company or partnership, trust, incorporated or unincorporated association, joint 3 3 venture, joint stock company, government (or an agency or political subdivision thereof) or other entity of any kind, and shall include any successor (by merger or otherwise) of such entity. ARTICLE II DIRECTORS 2.1 Increase in the Size of the Board of Directors. The Company hereby agrees that it will upon or immediately following the Effective Date (i) increase the size of its Board of Directors (the "Board") to a number necessary to effect clause (ii) of this Section 2.1, and (ii) cause two of the vacancies thus created (or created by resignation) to be filled by Richard C. Blum and Jeffrey W. Ubben. 2.2 Nomination of Designated Directors. The Company hereby agrees that for so long as the Principal Stockholder owns, in the aggregate, at least 11% of the outstanding shares of Common Stock, the Company will use its best efforts to ensure that, following any vote for the election of directors of the Company at a stockholders' meeting or otherwise, two directors (each a "Designated Director") designated by the Principal Stockholder are members of the Board, provided, that (i) one Designated Director is either Jeffrey W. Ubben or N. Colin Lind for so long as he is an employee, officer, director, member or partner of the Principal Stockholder or any of its Affiliates, (ii) any other Designated Director shall be approved by a majority of the members of the Board who are either Purchaser Directors (as defined in the By-Laws) or officers of the Company (which such consent shall not be unreasonably 4 4 withheld), and (iii) that the proposed Designated Directors are nominated in accordance with the By-Laws. 2.3 Stockholder Meeting; Proxy Material; By-Laws Amendment. The Company shall cause proxies of its stockholders to be solicited, in accordance with the By-Laws and the 1934 Act, for the purpose of voting for the adoption of the By-Laws Amendment (the "Stockholder Meeting") at the annual meeting of the Company's stockholders to be held in 1999 (the "Stockholders Meeting"). In connection with the Stockholders Meeting, the Company: (A) shall prepare and file with the Securities and Exchange Commission (the "SEC") in accordance with the 1934 Act an information statement relating to the By-Laws Amendment (the "Information Statement"), use all reasonable efforts to have the Information Statement and/or any amendment or supplement thereto cleared by the SEC and thereafter mail to its stockholders, as promptly as practicable following such clearance, the Information Statement; (B) shall use its reasonable best efforts to obtain the necessary approvals by its stockholders for the adoption of the By-Laws Amendment (unless the Board shall have determined in good faith, based upon advice of outside counsel, that taking such actions would be inconsistent with the Board's fiduciary duties under applicable law); and (C) shall otherwise comply with all legal requirements applicable to the Stockholders Meeting. The Company shall make available to the Principal Stockholder prior to the filing thereof with the SEC copies of the preliminary Information Statement and any amendments or supplements thereto and shall make any changes therein reasonably 5 5 requested by the Principal Stockholder insofar as such changes relate to any matters relating to the Principal Stockholder. 2.4 Voting for Directors. For so long as the Principal Stockholder owns at least 11% of the outstanding shares of Common Stock, the Principal Stockholder agrees that it shall vote (and shall cause each of its affiliates owning, directly or indirectly, any shares of Common Stock to vote) all the shares of Common Stock owned directly or indirectly by the Principal Stockholder or such Affiliate in favor of all the persons nominated by the Board in accordance with the Amended By- Laws; provided this Section 2.4 shall terminate upon the tenth anniversary of the Effective Date. ARTICLE III TRANSFERS OF SECURITIES 3.1 Restrictions on Transfer of Company Common Stock. The Principal Stockholder agrees that, from the Effective Date to the date 364 days after the Effective Date, it shall not (i) Transfer any of the Purchased Shares, by distribution or otherwise, to any of its shareholders, partners, members or owners (in each case other than Affiliates), (ii) sell any of the Purchased Shares pursuant to Rule 144 under the 1933 Act. 3.2 Transfers Subject to Compliance with Securities Laws. After the Effective Date, no Shares may be Transferred by the Principal Stockholder (other than pursuant to an effective registration statement under the 1933 Act) unless such 6 6 Principal Stockholder first delivers to the Company an opinion of counsel, reasonably satisfactory to the Company, to the effect that such Transfer is not required to be registered under the 1933 Act. 3.3 Certificates for Shares To Bear Legends. (A) After the Effective Date, so long as the Purchased Shares are not sold pursuant to an effective registration statement under the 1933 Act or pursuant to Rule 144 under the 1933 Act, the Purchased Shares shall be subject to a stop-transfer order and the certificates therefor shall bear the following legend by which each holder thereof shall be bound: "THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, OR (ii) AN APPLICABLE EXEMPTION FROM REGISTRATION THEREUNDER." (B) So long as the Purchased Shares are subject to the terms and conditions of Section 3.1, the Purchased Shares shall be subject to a stop-transfer order and the certificates shall bear the following legend: "UNTIL JUNE __, 1999, THE SALE OR TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS FURTHER SUBJECT TO RESTRICTIONS WHICH ARE CONTAINED IN A STOCKHOLDERS AGREEMENT DATED AS OF JUNE [1], 1998, A COPY OF WHICH IS ON FILE WITH THE ISSUER OF THESE SHARES AND WILL BE FURNISHED BY THE ISSUER OF THESE 7 7 SHARES TO THE STOCKHOLDER ON REQUEST AND WITHOUT CHARGE." (C) After the termination of the legend requirements of either Section 3.3(A) or Section 3.3(B), the Company shall, upon the written request of the holders of the Shares and receipt by the Company of evidence reasonably satisfactory to it that such requirement has terminated (including, with respect to the legend required by the Section 3.3(A), a written opinion of counsel), issue certificates for such Shares that do not bear all or part of the legend described in Section 3.3(A) or Section 3.3(B), as the case may be, and release the applicable stop-transfer order. ARTICLE IV RESTRICTIONS ON PURCHASE 4.1 Restricted Purchases. From the Effective Date through the fifth anniversary of the Effective Date, the Principal Stockholder agrees that it will not, nor will it permit any of its Affiliates to, directly or indirectly, take any action, including, without limitation, to acquire, offer to acquire, or agree to acquire, by purchase or otherwise, any shares of Common Stock (or any options, warrants, convertible securities, or other rights to purchase or subscribe for Common Stock), if immediately thereafter the number of shares of Common Stock (including, for this purpose, shares of Common Stock issuable pursuant to any options, warrants, convertible securities, or other rights to purchase or subscribe for Common Stock) beneficially owned (within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934) by the Principal 8 8 Stockholder and its Affiliates exceeds the sum of (i) the number of Shares as of the Effective Date (the "Effective Date Shares") plus (ii) 2,000,000 (in the case of each of clause (i) and (ii), as adjusted for stock splits, combination of stock, stock dividends or similar recapitalizations by the Company), provided however that nothing in this Section 4.1 shall prohibit the Principal Stockholder or any of its Affiliates from acquiring any Common Stock in accordance with the provisions of Section 4.2 below. 4.2 Preemptive Rights. (a) From and after the Effective Date, except as provided below, the Company shall not issue, sell or transfer or allow any of its subsidiaries to issue, sell or transfer any Common Stock (or any options, warrants, convertible securities, or other rights to purchase or subscribe for Common Stock) (collectively, the "Offered Securities") unless the Principal Stockholder is offered in writing the right to purchase, at the same price and on the same terms proposed to be issued and sold, a portion of the Offered Securities (the "Stated Percentage") equal to the product of (i) the total number of Offered Securities multiplied by (ii) a fraction, the numerator of which is the lesser of (x) the number of Effective Date Shares or (y) the number of shares of Common Stock then owned by the Principal Stockholder and the denominator of which is the total number of the then outstanding shares of Common Stock, computed on a fully diluted basis (the "Preemptive Rights"). If the Offered Securities are being issued in connection with the issuance of any other securities, or incurrence of any debt, by the Company ("Other Securities or Debt"), each Principal Stockholder shall be required to purchase its Stated Percentage of such Other Securities or Debt in 9 9 order to exercise its Preemptive Rights. The Principal Stockholder shall have the right, during the period specified in Section 4.2(b), to accept the offer for any or all of their portion of the Offered Securities. (b) Any Principal Stockholder who does not deliver to the Company written notice of acceptance of any offer made pursuant to Section 4.2(a) within 10 business days after such Principal Stockholder's receipt of such offer shall be deemed to have waived its right to purchase the Offered Securities which are the subject of such offer (including, if the Offered Securities include convertible securities, options, or other rights to acquire other securities, such other securities.) (c) Section 4.2 (a) shall not apply to (i) the grant of options to purchase Common Stock, or the issuance of shares of Common Stock, to employees of the Company or any of its subsidiaries, (ii) shares of Common Stock issuable upon exercise of any option, warrant, convertible security or other rights to purchase or subscribe for Common Stock which, in each case, had been issued in compliance with Section 4.2(a) or under Section 4.2(c)(i), (iii) securities issued pursuant to any stock split, combination of stock, stock dividend or other similar stock recapitalization, (iv) shares of Common Stock issued pursuant to an employee stock option or similar plan, (v) shares of Common Stock issued in connection with the acquisition of stock or assets or of any other Person, (vi) shares of Common Stock issued pursuant to any registered public offering under the 1933 Act, or (vii) any issuance of Offered Securities occurring after the Principal owns less than 11% of the outstanding shares of Common Stock. 10 10 ARTICLE V MISCELLANEOUS 5.1 Amendment. This Agreement may be altered or amended only with the consent of the Company and the Principal Stockholder. 5.2 Specific Performance. The parties recognize that the obligations imposed on them in this Agreement are special, unique and of extraordinary character, and that in the event of breach by any party, damages will be an insufficient remedy; consequently, it is agreed that the parties hereto may have specific performance (in addition to damages) as a remedy for the enforcement hereof, without proving damages. 5.3 Assignment. Except as other provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors of the parties hereto; provided, however, that this Agreement may not be assigned by any party without the prior written consent of the Company and the Principal Stockholder except that the Company may assign its rights herein to any successor to all or substantially all its assets (by merger or otherwise). Any assignment of rights hereunder shall be coupled with the assumption by the assignee of all of the obligations of the assignor hereunder and shall thereby relieve such assignor of such obligations. Any purported assignment made in violation of this Section 6.3 shall be void and of no force and effect. 11 11 5.4 Notices. Any and all notices, designations, consents, offers, acceptances, or any other communication provided for herein shall be given in writing and deemed received when delivered by overnight courier or hand delivery, or when sent by facsimile transmission which shall be addressed, or sent, as follows: If to the Company, to it at: Playtex Products, Inc. 300 Nyala Farms Road Westport, Connecticut 06880 Attention: Michael R. Gallagher, Chief Executive Officer Telecopier: (203) 341-4260 with a copy to: Haas Wheat & Partners Incorporated 300 Crescent Court Suite 700 Dallas, Texas 75201 Attention: Robert B. Haas Telecopier: (214) 871-8364 and another copy to: Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of the Americas New York, New York 10019-6064 Attention: Robert M. Hirsh, Esq. Telecopier: (212) 373-2159 If to the Principal Stockholder, to: Richard C. Blum & Associates, L.P. 909 Montgomery Street, Suite 400 San Francisco, California 94133 Attention: Murray A. Indick, Esq. Telecopier: (415) 434-3130 With a copy to: 12 12 Wilmer, Cutler & Pickering 2445 M Street, N.W. Washington, D.C. 20037 Attention: Michael R. Klein, Esq. Telecopier: (202) 663-6363 5.5 Counterparts. This Agreement may be executed in one or more counterparts and each counterpart shall be deemed to be an original and which counterparts together shall constitute one and the same agreement of the parties hereto. 5.6 Section Headings. Headings contained in this Agreement are inserted only as a matter of convenience and in no way define, limit or extend the scope or intent of this Agreement or any provisions hereof. 5.7 Choice of Law. This Agreement shall be governed by the laws of the State of New York, without regard to principles of conflicts of laws. 5.8 Entire Agreement. This Agreement, the Stock Purchase Agreement and the Registration Rights Agreement contain the entire understanding of the parties hereto respecting the subject matter hereof and thereof and supersede all prior agreements, discussions, and understandings with respect to such subject matters. 13 13 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. PLAYTEX PRODUCTS, INC. By: ---------------------------------- Name: Title: RCBA PLAYTEX, L.P. By: ---------------------------------- Name: Title: 14 14 FORM OF AMENDMENT TO THE BY-LAWS OF THE COMPANY A. The existing Section 15(b)B shall be replaced in its entirety to read as follows: "(B) From the Effective Date until the earlier of (1) the date upon which the Principal Stockholder holds, in the aggregate, less than 11% of the outstanding shares of common stock of the Company or (2) the tenth anniversary of the Effective Date, two of the Non- Purchaser Directors shall be Designated Directors, provided, that (1) one Designated Director is either Jeffrey W. Ubben or N. Colin Lind for so long as he is an employee, officer, director, member or partner of the Principal Stockholder or any of its Affiliates, and (2) any other Designated Director shall be approved by a majority of the members of the Board who are either Purchaser Directors or officers of the Company, which approval shall not be unreasonably withheld. The "Effective Date" shall have the meaning given to that term in the Stockholders Agreement, dated as of June 1, 1998, among the Company, and RCBA PLAYTEX, L.P. (the "Principal Stockholder"). The "Designated Directors" means the Directors designated by the Principal Stockholder." EX-99.D 4 REGISTRATION RIGHTS AGREEMENT 1 EXECUTION COPY =============================================================================== REGISTRATION RIGHTS AGREEMENT among PLAYTEX PRODUCTS, INC., and RCBA PLAYTEX, L.P. _______________________________________ Dated as of June 1, 1998 _______________________________________ =============================================================================== 2 TABLE OF CONTENTS
Page ---- 1. Background ...................................................................................................... 1 2. Registration Under Securities Act, etc. ......................................................................... 1 2.1 Registration on Request ................................................................................. 1 2.2 Incidental Registration ................................................................................. 4 2.3 Registration Procedures ................................................................................. 6 2.4 Underwritten Offerings .................................................................................. 9 2.5 Preparation; Reasonable Investigation ................................................................... 11 2.6 Limitations, Conditions and Qualifications to Obligations under Registration Covenants .................................................................................. 11 2.7 Indemnification ......................................................................................... 11 3. Definitions ..................................................................................................... 16 4. Rule 144 ........................................................................................................ 18 5. Amendments and Waivers .......................................................................................... 18 6. Nominees for Beneficial Owners .................................................................................. 19 7. Notices ......................................................................................................... 19 8. Assignment ...................................................................................................... 20 9. Calculation of Percentage Interests in Registrable Securities ................................................... 20 10. No Inconsistent Agreements ...................................................................................... 20 11. Remedies ........................................................................................................ 20 12. Severability .................................................................................................... 20 13. Entire Agreement ................................................................................................ 21 14. Headings ........................................................................................................ 21 15. Governing Law ................................................................................................... 21 16. Counterparts .................................................................................................... 21
i 3 17. Termination ..................................................................................................... 21
ii 4 1 REGISTRATION RIGHTS AGREEMENT, dated as of June 1, 1998, between PLAYTEX PRODUCTS, INC., a Delaware corporation (the "Company"), and RCBA PLAYTEX, L.P. (the "Principal Stockholder"). The parties hereby agree as follows: 1. Background. Pursuant to a Stock Purchase Agreement, dated as of June 1, 1998, among J.W. Childs Equity Partners, L.P. (the "Seller") and the Principal Stockholder (the "Purchase Agreement"), the Principal Stockholder has agreed to purchase from the Seller, and the Seller has agreed to sell to the Principal Stockholder, an aggregate of 6,000,000 shares (the "Shares") of the Company's Common Stock, par value $.01 per share. Capitalized terms used herein but not otherwise defined shall have the meanings given them in Section 3. 2. Registration Under Securities Act, etc. 2.1 Registration on Request. (a) Request. At any time after the date that is 364 days after the Closing Date (as defined in the Purchase Agreement, hereinafter referred to as the "Effective Date"), upon the written request of one or more holders (the "Initiating Holders") of Registrable Securities that the Company effect the registration under the Securities Act of all or part of such Initiating Holders' Registrable Securities, the Company promptly will give written notice of such requested registration to all registered holders of Registrable Securities, and thereupon the Company will use its best efforts to effect, at the earliest possible date, the registration under the Securities Act of: (i) the Registrable Securities which the Company has been so requested to register by such Initiating Holders; and (ii) all other Registrable Securities which the Company has been requested to register by the holders thereof (such holders together with the Initiating Holders hereinafter are referred to as the "Selling Holders") by written request given to the Company within 30 days after the giving of such written notice by the Company, all to the extent necessary to permit the disposition of the Registrable Securities so to be registered. (b) Registration of Other Securities. Whenever the Company shall effect a registration pursuant to this Section 2.1, no securities other than Registrable Securities shall be included among the securities covered by such registration unless the Selling Holders of not less than 66-2/3% of all Registrable Securities to be covered by such registration shall have consented in writing to the inclusion of such other securities; provided, however, that such consent shall not be 5 2 required with respect to securities being registered pursuant to the Other Registration Rights Agreements. (c) Registration Statement Form. Registrations under this Section 2.1 shall be on such appropriate registration form of the Commission as shall be reasonably selected by the Company. (d) Effective Registration Statement. A registration requested pursuant to this Section 2.1 shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective and remained effective in compliance with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement (unless the failure to so dispose of such Registrable Securities shall be caused solely by reason of a failure on the part of the Selling Holders); provided, that such period need not exceed 135 days; (ii) if after it has become effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable solely to the Selling Holders or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than solely by reason of a failure on the part of the Selling Holders. (e) Selection of Underwriters. The underwriter or underwriters of each underwritten offering of the Registrable Securities so to be registered shall be selected by the Company and shall be reasonably acceptable to the Selling Holders of more than 50% of each class of Registrable Securities to be included in such registration. (f) Priority in Requested Registration. If the managing underwriter of any underwritten offering shall advise the Company in writ ing (and the Company shall so advise each Selling Holder of Registrable Securities requesting registration of such advice) that, in its opinion, the number of securities requested to be included in such registration exceeds the number which can be sold in such offering within a price range acceptable to the Selling Holders of 66-2/3% of the Registrable Securities requested to be included in such registration, the Company, except as provided in the following sentence, will include in such registration, to the extent of the number and type which the Company is so advised can be sold in such offering, first, Registrable Securities requested to be included in such registration, pro rata (based on the number of Registrable Securities requested by each of the Selling Holders) among the Selling Holders requesting such registration, second, such Registrable Securities (as defined in the Other Registration Rights Agreements and 6 3 hereinafter referred to as "Third Party Securities") requested to be included in such registration pursuant to the Other Registration Rights Agreements, pro rata (based on the number of Third Party Securities requested by each Securityholder requesting such registration) among the Securityholders requesting such registration, and third all securities to be sold by the Company for its own account. Notwithstanding the foregoing, if the total number of Registrable Securities requested to be included in any registration cannot be included, holders of Registrable Securities requesting registration thereof pursuant to Section 2.1, representing not less than 50% of the Registrable Securities with respect to which registration has been requested, shall have the right to withdraw the request for registration by giving written notice to the Company within 20 days after receipt of the notice from the managing underwriter described above by the Company and, in the event of such withdrawal, such request shall not be counted for purposes of the requests for registration to which holders of Registrable Securities are entitled pursuant to Section 2.1 hereof. If a request for registration is withdrawn pursuant to the immediately preceding sentence and at least 80% of the Registrable Securities requested to be included in such withdrawn registration could have been included therein, the Registration Expenses incurred by the Company in connection with such withdrawn registration shall be reimbursed by the Selling Holders, pro rata (based on the number of Registrable Securities requested to be included therein) among the Selling Holders. (g) Limitations on Registration Requests. Notwithstanding anything in this Section 2.1 to the contrary, in no event will the Company be required to: (i) effect, in the aggregate, more than two registrations pursuant to this Section 2.1; (ii) effect a registration pursuant to this Section 2.1 within the six-month period occurring immediately subsequent to the effectiveness (within the meaning of Section 2.1(d)) of a registration statement filed pursuant to this Section 2.1, unless the Board of Directors of the Company determines that effecting a second registration within the six- month period would not have a material adverse effect on the market price of the Common Stock; or (iii) effect a registration pursuant to Section 2.1 covering less than 25% of the number of outstanding Registrable Securities as of the Effective Date. (h) Expenses. The Company will pay all Registration Expenses in connection with any registrations requested pursuant to this Section 2.1; provided, that if the registration is requested pursuant to this Section 2.1 within 364 7 4 days of the effective date (within the meaning of Section 2.1(d)) of a registration statement effected pursuant to this Section 2.1, all Registration Expenses with respect to such requested registration shall be paid by the Selling Holders, pro rata (based on the number of Registrable Securities included in such registration by each Selling Holder). 2.2 Incidental Registration. (a) Right to Include Registrable Securities. If the Company at any time proposes to register any of its Common Stock under the Securities Act by registration on any form other than Forms S-4 or S-8, whether or not for sale for its own account, it will each such time give prompt written notice to all registered holders of Registrable Securities of its intention to do so and of such holders' rights under this Section 2.2. Upon the written request of any such holder (a "Requesting Holder") made as promptly as practicable and in any event within 30 days after the receipt of any such notice from the Company (15 days if the Company states in such written notice or gives telephonic or telecopied notice to all registered holders of Registrable Securities, with written confirmation to follow promptly thereafter, that (i) such registration will be on Form S-3 and (ii) such shorter period of time is required because of a planned filing date) (which request shall specify the Registrable Securities intended to be disposed of by such Requesting Holder), the Company will use its best efforts to effect the registration under the Securities Act of all Registrable Securities which the Company has been so requested to register by the Requesting Holders thereof; provided, that prior to the effective date of the registration statement filed in connection with such registration, immediately upon notification to the Company from the managing underwriter of the price at which such securities are to be sold, if such price is below the price which any Requesting Holder shall have indicated to be acceptable to such Requesting Holder, the Company shall so advise such Requesting Holder of such price, and such Requesting Holder shall then have the right to withdraw its request to have its Registrable Securities included in such registration statement; provided, further, however, that if, at any time after giving written notice of its intention to register any securities and prior to the effective date of the registration statement filed in connection with such registration, the Company shall determine for any reason not to register or to delay registration of such securities, the Company may, at its election, give written notice of such determination to each Requesting Holder of Registrable Securities and (x) in the case of a determination not to register, shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from any obligation of the Company to pay the Registration Expenses in connection therewith), without prejudice, however, to the rights of any holder or holders of Registrable Securities entitled to do so to cause such registration to be effected as a registration under Section 2.1, and (y) in the case of a determination to delay registering, shall be permitted to delay registering any Registrable Securities, for the same period as the delay in registering such other 8 5 securities. No registration effected under this Section 2.2 shall relieve the Company of its obligation to effect any registration upon request under Section 2.1. (b) Priority in Incidental Registrations. If the managing underwriter of any underwritten offering shall inform the Company by letter of its opinion that the number or type of Registrable Securities and Third Party Securities requested to be included in such registration would materially adversely affect such offering, and the Company has so advised the Requesting Holders, then the Company will include in such registration, to the extent of the number and type which the Company is so advised can be sold in (or during the time of) such offering, first, (x) if such registration is being effected pursuant to the request of Securityholders under provisions of one of the Other Registration Rights Agreements comparable to Section 2.1, all Third Party Securities so requested by such Securityholders under such Other Registration Rights Agreement, or (y) if such registration is not being so effected, all securities of the Company to be sold for its own account, second such Registrable Securities requested to be included in such registration pursuant to this Agreement and such Third Party Securities requested to be included in such registration pursuant to the provisions of the Other Registration Rights Agreements comparable to this Section 2.2, pro rata (based on the number of Registrable Securities requested to be included therein by each Selling Holder and the number of Third Party Securities requested to be included therein by each Securityholder) among such Selling Holders and the Securityholders, and third, if clause (x) of this Section 2.2(b) applies, all securities proposed by the Company to be sold for its own account. (c) Expenses. The Company will pay all Registration Expenses in connection with any registration contemplated pursuant to this Section 2.2. 2.3 Registration Procedures. If and whenever the Company is required to use its best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 2.1 and 2.2, the Company will, as expeditiously as possible: (i) prepare and (within 90 days after the end of the period within which requests for registration may be given to the Company) file with the Commission the requisite registration statement to effect such registration and thereafter use its best efforts to cause such registration statement to become effective; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities (and, under the circumstances specified in Section 2.2(b), Registrable Securities) at any time prior to the effective date of the registration statement relating thereto; 9 6 (ii) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective in accordance with Section 2.1(d)(i) hereof and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, that except with respect to any such registration statement filed pursuant to Rule 415 under the Securities Act, such period need not exceed 135 days; (iii) furnish to each seller of Registrable Securities covered by such registration statement, such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents, as such seller may reasonably request; (iv) use its reasonable best efforts (x) to register or qualify all Registrable Securities and other securities covered by such registration statement under such other securities or blue sky laws of such States of the United States of America where an exemption is not available and as the sellers of Registrable Securities covered by such registration statement shall reasonably request, (y) to keep such registration or qualification in effect for so long as such registration statement remains in effect and (z) to take any other action which may be reasonably necessary or advisable to enable such sellers to consummate the disposition in such jurisdictions of the securities to be sold by such sellers, except that the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this subdivision (iv) be obligated to be so qualified or to consent to general service of process in any such jurisdiction; (v) use its best efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other federal or state governmental agencies or authorities as may be necessary in the reasonable opinion of counsel to the Company and counsel to the seller or sellers of Registrable Securities to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities; 10 7 (vi) furnish at the effective date of such registration statement to each seller of Registrable Securities, and each such seller's underwriters, if any, a signed counterpart of: (x) an opinion of counsel for the Company, dated the effective date of such registration statement and, if applicable, the date of the closing under the underwriting agreement, and (y) a "comfort" letter signed by the independent public accountants who have certified the Company's financial statements included or incorporated by reference in such registration statement, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants' comfort letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' comfort letters delivered to the underwriters in underwritten public offerings of securities and, in the case of the accountants' comfort letter, such other financial matters, and, in the case of the legal opinion, such other legal matters, as the underwriters may reasonably request; (vii) notify each seller of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made, and at the request of any such seller promptly prepare and furnish to it a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made; (viii) otherwise use its best efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable (but not more than eighteen months after the effective date of such registration statement), an earnings statement covering the period of at least twelve months beginning with the first full calendar month after the effective date of such registration statement, which 11 8 earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder; (ix) provide and cause to be maintained a transfer agent and registrar (which, in each case, may be the Company) for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration; and (x) use its best efforts to list all Registrable Securities covered by such registration statement on any national securities exchange on which Registrable Securities of the same class covered by such registration statement are then listed and, if no such Registrable Securities are so listed, on any national securities exchange on which the Common Stock is then listed. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish the Company (i) such information regarding such seller and the distribution of such securities as the Company may from time to time reasonably request in writing and (ii) if requested by the Company an executed custody agreement and power of attorney in form and substance reasonably satisfactory to the Company with respect to the Registrable Securities to be registered pursuant to this Agreement. Each holder of Registrable Securities agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in subdivision (vii) of this Section 2.3, such holder will forthwith discontinue such holder's disposition of Registrable Securities pursuant to the registration statement relating to such Registrable Securities until such holder's receipt of the copies of the supplemented or amended prospectus contemplated by subdivision (vii) of this Section 2.3 and, if so directed by the Company, will deliver to the Company (at the Company's expense) all copies, other than permanent file copies, then in such holder's possession of the prospectus relating to such Registrable Securities current at the time of receipt of such notice. 2.4 Underwritten Offerings. (a) Requested Underwritten Offerings. If requested by the underwriters for any underwritten offering by holders of Registrable Securities pursuant to a registration requested under Section 2.1, the Company will enter into an underwriting agreement with such underwriters for such offering, such agreement to be reasonably satisfactory in substance and form to each such holder and the underwriters and to contain such representations and warranties by the Company and such other terms as are generally prevailing in agreements of that type, including, without limitation, indemnities to the effect and to the extent provided in Section 2.7 or such 12 9 other indemnities as are customarily received by underwriters in public offerings of similar securities. The holders of the Registrable Securities proposed to be sold by such underwriters will reasonably cooperate with the Company in the negotiation of the underwriting agreement. Such holders of Registrable Securities to be sold by such underwriters shall be parties to such underwriting agreement and may, at their option, require that any or all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such holders of Registrable Securities and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement be conditions precedent to the obligations of such holders of Registrable Securities. No holder of Registrable Securities shall be required to make any representations or warranties to or agreements with the Company other than representations, warranties or agreements regarding such holder, such holder's Registrable Securities and such holder's intended method of distribution or any other representations required by applicable law. (b) Incidental Underwritten Offerings. If the Company proposes to register any of its securities under the Securities Act as contemplated by Section 2.2 and such securities are to be distributed by or through one or more underwriters, the Company will, if requested by any Requesting Holder of Registrable Securities, use its reasonable best efforts to arrange for such underwriters to include all the Registrable Securities to be offered and sold by such Requesting Holder among the securities of the Company to be distributed by such underwriters, subject to the provisions of Section 2.2(b). The holders of Registrable Securities to be distributed by such underwriters shall be parties to the underwriting agreement between the Company and such underwriters and may, at their option, require that any or all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such holders of Registrable Securities and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement be conditions precedent to the obligations of such holders of Registrable Securities. Any such Requesting Holder of Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Requesting Holder, such Requesting Holder's Registrable Securities and such Requesting Holder's intended method of distribution or any other representations required by applicable law. 2.5 Preparation; Reasonable Investigation. In connection with the preparation and filing of each registration statement under the Securities Act pursuant to this Agreement, the Company will give the holders of Registrable Securities to be registered under such registration statement, their underwriters, if any, and their respective counsel the opportunity to participate in the preparation of such 13 10 registration statement, each prospectus included therein or filed with the Commission, and each amendment thereof or supplement thereto, and will give each of them such reasonable access to its books and records and such opportunities to discuss the business of the Company with its officers and the independent public accountants who have certified its financial statements as shall be necessary, in the opinion of such holders' and such underwriters' respective counsel, to conduct a reasonable investigation within the meaning of the Securities Act. 2.6 Limitations, Conditions and Qualifications to Obligations under Registration Covenants. The Company shall be entitled to postpone for a reasonable period of time (but not exceeding 90 days) the filing of any registration statement otherwise required to be prepared and filed by it pursuant to Section 2.1 if the Company determines, in its reasonable judgment, that such registration and offering would interfere with any financing, acquisition, corporate reorganization or other material transaction involving the Company and promptly gives the holders of Registrable Securities requesting registration thereof pursuant to Section 2.1 written notice of such determination, containing a general statement of the reasons for such postponement and an approximation of the anticipated delay. If the Company shall so postpone the filing of a registration statement, holders of Registrable Securities requesting registration thereof pursuant to Section 2.1, representing not less than 50% of the Registrable Securities with respect to which registration has been requested, shall have the right to withdraw the request for registration by giving written notice to the Company within 30 days after receipt of the notice of postponement and, in the event of such withdrawal, such request shall not be counted for purposes of the requests for registration to which holders of Registrable Securities are entitled pursuant to Section 2.1 hereof. 2.7 Indemnification. (a) Indemnification by the Company. The Company will, and hereby does, indemnify and hold harmless, in the case of any registration statement filed pursuant to Section 2.1 or 2.2, each seller of any Registrable Securities covered by such registration statement and each other Person who participates as an underwriter in the offering or sale of such securities and each other Person, if any, who controls such seller or any such underwriter within the meaning of the Securities Act or the Exchange Act, and their respective directors, officers, partners, agents and affiliates, against any losses, claims, damages or liabilities, joint or several, to which such seller or underwriter or any such director, officer, partner, agent, affiliate or controlling person may become subject under the Securities Act or otherwise, including, without limitation, the reasonable fees and expenses of legal counsel, insofar as such losses, claims, damages or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration 14 11 statement under which such securities were registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will reimburse such seller or underwriter and each such director, officer, partner, agent, affiliate and controlling Person for any reasonable legal or any other expenses incurred by them in connection with investigating or defending any such loss, claim, liability, action or proceeding; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written information furnished to the Company by or on behalf of such seller or underwriter, as the case may be, specifically stating that it is for use in the preparation thereof; provided, further, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability or expense arises out of or is based upon an untrue statement or alleged untrue statement of any material fact contained in any such registration statement, preliminary prospectus, final prospectus or summary prospectus contained therein or any omission to state therein a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances in which they were made not misleading in a prospectus or prospectus supplement, if (i) such untrue statement or omission is completely corrected in an amendment or supplement to such prospectus or prospectus supplement, the seller of the Registrable Securities has an obligation under the Securities Act to deliver a prospectus or prospectus supplement in connection with such sale of Registrable Securities and the seller of Registrable Securities thereafter fails to deliver such prospectus or prospectus supplement as so amended or supplemented prior to or concurrently with the sale of Registrable Securities to the person asserting such loss, claim, damage or liability after the Company has furnished such seller with a sufficient number of copies of the same or (ii) if the seller received written notice from the Company of the existence of such an untrue statement or such an omission and the seller continued to dispose of Registrable Securities prior to the time of the receipt of either (a) an amended or supplemented prospectus or prospectus supplement that completely corrected the untrue statement or the omission or (b) a notice from the Company that the use of the existing prospectus or prospectus supplement may be resumed. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such seller or underwriter or any such director, officer, partner, agent, affiliate or controlling person and shall survive the transfer of such securities by such seller or underwriter. (b) Indemnification by the Sellers. As a condition to including any Registrable Securities in any registration statement, the Company shall 15 12 have received an undertaking reasonably satisfactory to it from the prospective seller of such Registrable Securities, to indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 2.7(a)) the Company, and each director of the Company, each officer of the Company and each other Person, if any, who participates as an underwriter in the offering or sale of such securities and each other Person who controls the Company or any such underwriter within the meaning of the Securities Act or the Exchange Act, with respect to any statement or alleged statement in or omission or alleged omission from such registration statement, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such seller specifically stating that it is for use in the preparation of such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement; provided, however, that the liability of such indemnifying party under this Section 2.7(b) shall be limited to the amount of proceeds received by such indemnifying party in the offering giving rise to such liability. Such indemnity shall remain in full force and effect, regardless of any investigation made by or on behalf of the Company or any such director, officer or controlling person and shall survive the transfer of such securities by such seller. (c) Notices of Claims, etc. Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding involving a claim referred to in Section 2.7(a) or (b), such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the latter of the commencement of such action; provided, however, that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under the preceding subdivisions of this Sec tion 2.7, except to the extent that the indemnifying party is actually and materially prejudiced by such failure to give notice. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party; provided, however, that any indemnified party may, at its own expense, retain separate counsel to participate in such defense. Notwithstanding the foregoing, in any action or proceeding in which both the Company and an indemnified party is, or is reasonably likely to become, a party, such indemnified party shall have the right to employ separate counsel at the Company's expense and to control its own defense of such action or proceeding if, in the reasonable opinion of counsel to such indemnified party, (a) there are or may be legal defenses available to such indemnified party or to other indemnified parties that are different from or additional to those available to the Company or (b) any conflict or potential conflict exists between the Company and such indemnified party that would make such separate representation advisable; provided, however, that in no event shall 16 13 the Company be required to pay fees and expenses under this Section 2.7 for more than one firm of attorneys representing the indemnified parties (together, if appropriate, with one firm of local counsel per jurisdiction) in any one legal action or group of related legal actions. No indemnifying party shall be liable for any settle ment of any action or proceeding effected without its written consent, which consent shall not be unreasonably withheld. No indemnifying party shall, without the consent of the indemnified party, which consent shall not be unreasonably withheld, consent to entry of any judgment or enter into any settlement which does not include as a term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation or which requires action other than the payment of money by the indemnifying party. (d) Contribution. If the indemnification provided for in this Section 2.7 shall for any reason be held by a court to be unavailable to an indemnified party under Section 2.7(a) or (b) hereof in respect of any loss, claim, damage or liability, or any action in respect thereof, then, in lieu of the amount paid or payable under Section 2.7(a) or (b), the indemnified party and the indemnifying party under Section 2.7(a) or (b) shall contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating the same), (i) in such proportion as is appropriate to reflect the relative fault of the Company and the prospective sellers of Registrable Securities covered by the registration statement which resulted in such loss, claim, damage or liability, or action or proceeding in respect thereof, with respect to the statements or omissions which resulted in such loss, claim, damage or liability, or action or proceeding in respect thereof, as well as any other relevant equitable considerations or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as shall be appropriate to reflect the relative benefits received by the Company and such prospective sellers from the offering of the securities covered by such registration statement, provided, that for purposes of this clause (ii), the relative benefits received by the prospective sellers shall be deemed not to exceed the amount of proceeds received by such prospective sellers. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Such prospective sellers' obligations to contribute as provided in this Section 2.7(d) are several in proportion to the relative value of their respective Registrable Securities covered by such registration statement and not joint. In addition, no Person shall be obligated to contribute hereunder any amounts in payment for any settlement of any action or claim effected without such Person's consent, which consent shall not be unreasonably withheld. (e) Other Indemnification. Indemnification and contribution similar to that specified in the preceding subdivisions of this Section 2.7 (with appropriate modifications) shall be given by the Company and each seller of 17 14 Registrable Securities with respect to any required registration or other qualification of securities under any federal or state law or regulation of any governmental authority other than the Securities Act. (f) Indemnification Payments. The indemnification and contribution required by this Section 2.7 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or expense, loss, damage or liability is incurred. 3. Definitions. As used herein, unless the context otherwise requires, the following terms have the following respective meanings: "Childs Agreement" means the Registration Rights Agreement, dated as of January 28, 1998, as amended, between Playtex Products, Inc. and J.W. Childs Equity Partners L.P. "Commission" means the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act. "Common Stock" shall mean and include the Common Stock, par value $.01 per share, of the Company and each other class of capital stock of the Company that does not have a preference over any other class of capital stock of the Company as to dividends or upon liquidation, dissolution or winding up of the Company and, in each case, shall include any other class of capital stock of the Company into which such stock is reclassified or reconstituted. "Exchange Act" means the Securities Exchange Act of 1934, as amended, or any superseding Federal statute, and the rules and regulations promulgated thereunder, all as the same shall be in effect at the time. Reference to a particular section of the Securities Exchange Act of 1934, as amended, shall include a reference to the comparable section, if any, of any such superseding Federal statute. "HWH Agreement" means the Registration Rights Agreement dated as of March 17, 1995, as amended, among the Company, HWH Capital Partners, L.P., HWH Valentine Partners, L.P., and HWH Surplus Valentine Partner, L.P. "Initiating Holder" is defined in Section 2.1. "Other Registration Rights Agreement" means each of the HWH Agreement and the Childs Agreement. "Person" means any individual, firm, corporation, partnership, limited liability company or partnership, trust, incorporated or unincorporated association, 18 15 joint venture, joint stock company, government (or an agency or political subdivision thereof) or other entity of any kind and shall include any successor (by merger or otherwise) of such entity. "Registrable Securities" means any Shares, any other shares of Common Stock owned by the Principal Shareholder as of the date of this Agreement (the "Currently Held Shares"), and any Related Registrable Securities. As to any particular Registrable Securities, once issued, such securities shall cease to be Registrable Securities when (a) a registration statement with respect to the sale of such securities shall have become effective under the Securities Act and such securi ties shall have been disposed of in accordance with such registration statement, (b) they shall have been sold as permitted by Rule 144 (or any successor provision) under the Securities Act, (c) they shall have been otherwise transferred, new certificates for them not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of them shall not require registration of such distribution under the Securities Act or (d) they shall have ceased to be outstanding. All references to percentages of Registrable Securities shall be calculated pursuant to Section 9. "Registration Expenses" means all expenses incident to the Company's performance of or compliance with Section 2, including, without limitation, all registration and filing fees, all fees of the New York Stock Exchange, Inc., other national securities exchanges or the National Association of Securities Dealers, Inc., all fees and expenses of complying with securities or blue sky laws, all word processing, duplicating and printing expenses, messenger and delivery expenses, the fees and disbursements of counsel for the Company and of its independent public accountants, including the expenses of "comfort" letters required by or incident to such performance and compliance, any fees and disbursements of underwriters customarily paid by issuers or sellers of securities (excluding any underwriting discounts or commissions with respect to the Registrable Securities) and the reasonable fees and expenses of one counsel to the Selling Holders (selected by Selling Holders representing at least 50% of the Registrable Securities covered by such registration); provided, however, that in the event the Company shall determine, in accordance with Section 2.2(a) or Section 2.6, not to register any securities with respect to which it had given written notice of its intention to so register to holders of Registrable Securities, all of the costs of the type (and subject to any limitation to the extent) set forth in this definition and incurred by Requesting Holders in connection with such registration on or prior to the date the Company notifies the Requesting Holders of such determination shall be deemed Registration Expenses. "Related Registrable Securities" means with respect to the Shares or the Currently Held Shares any securities of the Company issued or issuable with respect to any of the Shares or the Currently Held Shares by way of a dividend or stock split or in 19 16 connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise. "Requesting Holder" is defined in Section 2.2. "Securities Act" means the Securities Act of 1933, as amended, or any superseding Federal statute, and the rules and regulations promulgated thereunder, all as the same shall be in effect at the time. References to a particular section of the Securities Act of 1933, as amended, shall include a reference to the comparable section, if any, of any such superseding Federal statute. "Securityholder" means any of the parties to each of the Other Registration Rights Agreements, in each case other than the Company. "Selling Holder" is defined in Section 2.1. 4. Rule 144. The Company shall take all actions reasonably necessary to enable holders of Registrable Securities to sell such securities without registration under the Securities Act within the limitation of the provisions of (a) Rule 144 under the Securities Act, as such Rule may be amended from time to time, or (b) any similar rules or regulations hereafter adopted by the Commission. Upon the request of any holder of Registrable Securities, the Company will deliver to such holder a written statement as to whether it has complied with such requirements. 5. Amendments and Waivers. This Agreement may be amended with the consent of the Company and the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company shall have obtained the written consent to such amendment, action or omission to act, of the holder or holders of at least 66-2/3% of the Registrable Securities affected by such amendment, action or omission to act. Each holder of any Registrable Securities at the time or thereafter outstanding shall be bound by any consent authorized by this Section 5, whether or not such Registrable Securities shall have been marked to indicate such consent. 6. Nominees for Beneficial Owners. In the event that any Registrable Securities are held by a nominee for the beneficial owner thereof, the beneficial owner thereof may, at its election in writing delivered to the Company, be treated as the holder of such Registrable Securities for purposes of any request or other action by any holder or holders of Registrable Securities pursuant to this Agreement or any determination of any number or percentage of shares of Registrable Securities held by any holder or holders of Registrable Securities contemplated by this Agreement. If the beneficial owner of any Registrable Securities so elects, the Company may require 20 17 assurances reasonably satisfactory to it of such owner's beneficial ownership of such Registrable Securities. 7. Notices. All notices, demands and other communications provided for or permitted hereunder shall be made in writing and shall be by registered or certified first-class mail, return receipt requested, telecopier, courier service or personal delivery: (a) if to the Principal Stockholder, addressed to it in the manner set forth in the Purchase Agreement, or at such other address as it shall have furnished to the Company in writing in the manner set forth herein; (b) if to any other holder of Registrable Securities, at the address that such holder shall have furnished to the Company in writing in the manner set forth herein, or, until any such other holder so furnishes to the Company an address, then to and at the address of the last holder of such Registrable Securities who has furnished an address to the Company; or (c) if to the Company, addressed to it in the manner set forth in the Purchase Agreement, or at such other address as the Company shall have furnished to each holder of Registrable Securities at the time outstanding in the manner set forth herein. All such notices and communications shall be deemed to have been duly given: when delivered by hand, if personally delivered; when delivered by a courier, if delivered by overnight courier service; three business days after being deposited in the mail, postage prepaid, if mailed; and when receipt is acknowledged, if telecopied. 8. Assignment. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and, with respect to the Company, its respective successors and permitted assigns and, with respect to the Principal Stockholder, any holder of at least 10% of the number of outstanding Registrable Securities as of the Effective Date, subject to the provisions respecting the minimum amount of Registrable Securities required in order to be entitled to certain rights, or take certain actions, contained herein. Except by operation of law, this Agreement may not be assigned by the Company without the prior written consent of the holders of 66-2/3% of the Registrable Securities outstanding at the time such consent is requested. 9. Calculation of Percentage Interests in Registrable Securities. For purposes of this Agreement, all references to a percentage of the Registrable Securities shall be calculated based upon the number of Registrable Securities out standing at the time such calculation is made. 21 18 10. No Inconsistent Agreements. The Company will not hereafter enter into any agreement with respect to its securities which is inconsistent with the rights granted to the holders of Registrable Securities in this Agreement. Without limiting the generality of the foregoing, the Company will not hereafter enter into any agreement with respect to its securities which grants, or modify any existing agreement with respect to its securities to grant, to the holder of its securities in connection with an incidental registration of such securities, higher priority to the rights granted under Section 2. 11. Remedies. Each holder of Registrable Securities, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agrees to waive the defense in any action for specific performance that a remedy at law would be adequate. 12. Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be in any way impaired thereby, it being intended that all of the rights and privileges of the Principal Stockholder shall be enforceable to the fullest extent permitted by law. 13. Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein and therein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein and therein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. 14. Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. 15. Governing Law. This Agreement has been negotiated, executed and delivered in the State of New York and shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law. 16. Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when 22 19 so executed shall be deemed an original and all of which taken together shall constitute one and the same instrument. 17. Termination. Upon termination of the Purchase Agreement, in accordance with Section 2(d) thereof, this Agreement shall terminate automatically. In addition, this Agreement shall terminate in the event that Registrable Securities constitute less than 5% of the outstanding Company's Common Stock. 23 20 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their respective representatives hereunto duly authorized as of the date first above written. PLAYTEX PRODUCTS, INC. By: --------------------------------------- Name: Title: RCBA PLAYTEX, L.P. By: ------------------------------ Name: Title: -----END PRIVACY-ENHANCED MESSAGE-----