Exhibit 10(AC)(1)
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (the "Agreement") dated
as of September 3, 1998, between PLAYTEX PRODUCTS, INC., a Delaware corporation
(the "Company"), and RCBA PLAYTEX, L.P., a Delaware limited partnership (the
"Principal Stockholder") and RCBA Strategic Partners, L.P., a Delaware limited
partnership (the "Fund").
RECITALS
WHEREAS, ▇.▇. 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 has purchased 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 held, in
aggregate, 11,758,700 shares of the Common Stock (the "Shares");
WHEREAS, subsequent to the Closing, the Fund intends to acquire
shares of Common Stock (the "Fund Shares");
WHEREAS, the Company and the Principal Stockholder are parties to a
Stockholders Agreement dated June 1, 1998 (the "Original Agreement");
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WHEREAS, the Company, the Principal Stockholder and the Fund desire
that the Fund become a party to the Original Agreement and that the Original
Agreement be amended as provided in this Agreement;
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.
"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.
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"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 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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
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2.2 Nomination of Designated Directors. The Company hereby agrees
that for so long as the Principal Stockholder and the Fund own, 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") (one designated by the Principal Stockholder and
the other by the Fund) are members of the Board, provided, that (i) one
Designated Director is either ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or N. ▇▇▇▇▇ ▇▇▇▇ 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 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
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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 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
and the Fund own, in the aggregate, at least 11% of the outstanding shares of
Common Stock, each of the Principal Stockholder and the Fund 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 it 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.
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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 ▇▇▇▇ ▇▇▇.
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 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
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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 1, 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 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.
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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
Stockholder and its Affiliates (including, the Fund) 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
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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"), the
Principal Stockholder shall be required to purchase its Stated Percentage of
such Other Securities or Debt in 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) If Principal Stockholder 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 the 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.)
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(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 Shareholder owns less than 11% of the outstanding
shares of Common Stock.
ARTICLE V
MISCELLANEOUS
5.1 Amendment. This Agreement may be altered or amended only with
the consent of the Company, the Principal Stockholder and the Fund.
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
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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.
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.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Chief Executive Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇ Wheat & Partners Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and another copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Principal Stockholder or the Fund, to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ & Associates, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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.
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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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
PLAYTEX PRODUCTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
Chief Financial Officer
RCBA PLAYTEX, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
RCBA STRATEGIC PARTNERS, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
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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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or N.
▇▇▇▇▇ ▇▇▇▇ 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 Amended and Restated Stockholders
Agreement, dated as of September 3, 1998, among the Company, and
RCBA PLAYTEX, L.P. (the "Principal Stockholder") and RCBA Strategic
Partners, L.P. (the "Fund"). The "Designated Directors" means one
Director designated by the Principal Stockholder and one Director
designated by the Fund."
