Exhibit 10.9
[EXECUTION COPY]
FIRST AMENDMENT, ACKNOWLEDGMENT AND SUPPLEMENT
TO UNIT PURCHASE AGREEMENT
This First Amendment, Acknowledgment and Supplement to Unit Purchase
Agreement (this "AMENDMENT AND SUPPLEMENT"), dated as of April 6, 2004, is made
to the Unit Purchase Agreement (the "AGREEMENT"), dated as of February 6, 2004,
by and among Medtech/Denorex, LLC, a Delaware limited liability company (n/k/a
Prestige International Holdings, LLC, the "COMPANY"), GTCR Fund VIII, L.P., a
Delaware limited partnership, GTCR Fund VIII/B, L.P., a Delaware limited
partnership, GTCR Co-Invest II, L.P., a Delaware limited partnership, and the
TCW/Crescent Purchasers (as defined therein). Each capitalized term used herein
but not otherwise defined shall have the meaning ascribed to such term in the
Agreement.
WHEREAS, the Company is indirectly acquiring all of the outstanding shares
of capital stock of ▇▇▇▇▇▇ Bay Holdings, Inc., a Virginia corporation and
ultimate parent of Prestige Brands International, Inc. (the "ACQUISITION"); and
WHEREAS, in connection with the Acquisition and in order to better reflect
the intent of the parties, the undersigned desire to amend certain terms of the
Agreement, add GTCR Capital Partners (as defined below) as a party to the
Agreement, make certain acknowledgments with respect to the Agreement and
reaffirm the other terms and provisions of the Agreement; and
WHEREAS, pursuant to Section 1.B of the Agreement (as amended hereby),
the Purchasers (as defined in this Amendment and Supplement) desire to purchase,
and the Company desires to sell to the Purchasers, 58,179.25 Class B Preferred
Units for an aggregate purchase price of $58,179,250.
NOW, THEREFORE, effective immediately prior to the consummation of the
Acquisition (with respect to the amendments provided herein) or simultaneous to
the consummation of the Acquisition (with respect to the purchase of Class B
Preferred Units described herein), the undersigned, intending to be legally
bound, hereby agree as follows:
AMENDMENT PROVISIONS
1. Each reference, if any, in the Agreement to any of the entities identified
below shall be deemed a reference to such entity's new name, as indicated:
(a) Medtech/Denorex, LLC n/k/a Prestige International Holdings, LLC;
(b) SNS Household Holdings, Inc. n/k/a Prestige Household Holdings,
Inc.;
(c) SNS Household Brands, Inc. n/k/a Prestige Household Brands, Inc.;
(d) Medtech Acquisition Holdings, Inc. n/k/a Prestige Products Holdings,
Inc.;
(e) Medtech Acquisition, Inc. n/k/a Prestige Brands, Inc.;
(f) Medtech/Denorex Management, Inc. n/k/a Prestige Brands, Inc., as
successor by merger;
(g) Denorex Acquisition Holdings, Inc. n/k/a Prestige Personal Care
Holdings, Inc.; and
(h) Denorex Acquisition, Inc. n/k/a Prestige Personal Care, Inc.
2. The following defined terms (and related definitions) shall be added to the
Agreement:
(a) "GTCR CAPITAL PARTNERS" means GTCR Capital Partners, L.P., a
Delaware limited partnership.
(b) "PARTICIPATING PURCHASERS" means, with respect to any Subsequent
Closing, the Purchasers who participate in such Subsequent Closing
as provided herein.
(c) "WARRANT AGREEMENT" means the Warrant Agreement dated as of February
6, 2004, by and among the Company, GTCR Capital Partners and the
TCW/Crescent Lenders (as defined therein).
3. The definitions for each of the following defined terms in the Agreement
shall be deleted in their entirety and amended and restated as follows:
(a) "PURCHASERS" means the GTCR Purchasers, the TCW/Crescent Purchasers
and GTCR Capital Partners (and each individually a "PURCHASER").
4. The last sentence of Section 1.B(b) of the Agreement shall be deleted in
its entirety and amended and restated as follows:
Notwithstanding anything to the contrary herein, the aggregate amount of
Securities which the TCW/Crescent Purchasers are collectively purchasing
hereunder (or which the TCW/Crescent Purchasers (or their transferees) are
collectively selling pursuant to the repurchase provisions hereunder) shall
be allocated among the TCW/Crescent Purchasers in accordance with the
allocation percentage opposite each TCW/Crescent Purchaser's name under the
heading "TCW/Crescent Purchaser Allocations" on the "Schedule of
TCW/Crescent Allocations" attached hereto.
5. Sections 1.B(e)(i), (ii) and (iv) of the Agreement shall be deleted in
their entirety and amended and restated as follows:
(i) In connection with each Subsequent Closing, the TCW/Crescent
Purchasers may, but shall not be obligated to, purchase a number of Class B
Preferred Units equal to the total number of Class B Preferred Units being
purchased at such Subsequent Closing multiplied by 0.0278 and on the same
terms and conditions as the GTCR Purchasers; PROVIDED THAT, if the
TCW/Crescent Purchasers choose not to purchase all of the Class B Preferred
Units they are entitled to purchase at any Subsequent Closing, they may not
purchase Class B Preferred Units at such Subsequent Closing or at any
Subsequent Closing thereafter.
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(ii) In connection with any Subsequent Closing in which the TCW/Crescent
Purchasers do not purchase Class B Preferred Units, the Participating
Purchasers with respect to such Subsequent Closing shall have the right to
purchase from the TCW/Crescent Purchasers and transferees a number of
Common Units. The number of Common Units to be purchased hereunder will be
determined by calculating the amount that the TCW/Crescent Purchasers would
have been entitled to invest had the TCW/Crescent Purchasers participated
in such Subsequent Closing and dividing that amount by $6,945,918 (i.e.,
the TCW/Crescent Purchasers' total committed equity) (the "TCW/CRESCENT
PURCHASERS' RATIO"). The TCW/Crescent Purchasers' Ratio will then be
multiplied by the number of Common Units held by the TCW/Crescent
Purchasers and its transferees immediately prior to such Subsequent
Closing. Such product will then be adjusted to give effect to any change in
the Fair Market Value of the Company and its Subsidiaries between the date
hereof and the date immediately preceding such Subsequent Closing before
giving effect to such Subsequent Closing by dividing such product by the
multiple of such increase in Fair Market Value of the Company and its
Subsidiaries or by 1 minus the percentage decrease in such Fair Market
Value of the Company and its Subsidiaries, as the case may be. Such right
to purchase in favor of the Participating Purchasers (i) must be exercised
on the date of the Subsequent Closing if the TCW/Crescent Purchasers (or
their transferees, as the case may be) have notified the Purchasers at
least three (3) business days prior to such Subsequent Closing that they do
not intend to participate in such Subsequent Closing or otherwise within
five (5) business days after such Subsequent Closing, (ii) shall not, under
any circumstances, permit the Participating Purchasers to purchase any
Common Units held by TCW/Crescent Purchasers or their transferees as a
result of the exercise of the TCW Warrants (as defined in the Warrant
Agreement) and (iii) shall, if the Participating Purchasers elect to
purchase an aggregate number of Common Units under this SECTION 1.B(e)
greater than the number determined to be available for purchase in
accordance with the terms of this SECTION 1.B(e), then the available Common
Units shall be allocated among the Participating Purchasers on a pro rata
basis consistent with each such Participating Purchaser's portion of the
investment made pursuant to such Subsequent Closing. "Fair Market Value"
for purposes of this SECTION 1.B(e) shall be the fair market value of all
equity of the Company using the methodology procedures set forth in the
definition of Fair Market Value in SECTION 6 hereof.
(iv) The closing of the purchase of the Common Units pursuant to this
SECTION 1.B(e) shall take place on the date designated in a notice given to
the TCW/Crescent Purchasers in accordance herewith, which date shall not be
more than 30 days nor less than five days after the delivery of such
notice. Each Participating Purchaser will pay for the Common Units to be
purchased by it by a check or wire transfer of immediately available funds.
The Participating Purchasers will be entitled to receive customary
representations and warranties from the sellers regarding such sale and to
require that all sellers' signatures be guaranteed.
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6. A new Section 1.B(f) shall be added to the Agreement as follows:
(f) GTCR CAPITAL PARTNERS SUBSEQUENT CLOSINGS.
(i) In connection with each Subsequent Closing, GTCR Capital Partners
may, but shall not be obligated to, purchase a number of Class B Preferred
Units equal to the total number of Class B Preferred Units being purchased
at such Subsequent Closing multiplied by 0.0255 and on the same terms and
conditions as the GTCR Purchasers; PROVIDED THAT, if GTCR Capital Partners
chooses not to purchase all of the Class B Preferred Units it is entitled
to purchase at any Subsequent Closing, it may not purchase Class B
Preferred Units at such Subsequent Closing or at any Subsequent Closing
thereafter.
(ii) In connection with any Subsequent Closing in which GTCR Capital
Partners does not purchase Class B Preferred Units, the Participating
Purchasers with respect to such Subsequent Closing shall have the right to
purchase from GTCR Capital Partners and transferees a number of Common
Units. The number of Common Units to be purchased hereunder will be
determined by calculating the amount that GTCR Capital Partners would have
been entitled to invest had GTCR Capital Partners participated in such
Subsequent Closing and dividing that amount by $6,381,314 (i.e., GTCR
Capital Partners' total committed equity) (the "GTCR CAPITAL PARTNERS'
RATIO"). The GTCR Capital Partners' Ratio will then be multiplied by the
number of Common Units held by GTCR Capital Partners and its transferees
immediately prior to such Subsequent Closing. Such product will then be
adjusted to give effect to any change in the Fair Market Value of the
Company and its Subsidiaries between the date hereof and the date
immediately preceding such Subsequent Closing before giving effect to such
Subsequent Closing by dividing such product by the multiple of such
increase in Fair Market Value of the Company and its Subsidiaries or by 1
minus the percentage decrease in such Fair Market Value of the Company and
its Subsidiaries, as the case may be. Such right to purchase in favor of
the Participating Purchasers (i) must be exercised on the date of the
Subsequent Closing if GTCR Capital Partners (or their transferees, as the
case may be) have notified the Purchasers at least three (3) business days
prior to such Subsequent Closing that they do not intend to participate in
such Subsequent Closing or otherwise within five (5) business days after
such Subsequent Closing and (ii) shall, if the Participating Purchasers
elect to purchase an aggregate number of Common Units under this SECTION
1.B(f) greater than the number determined to be available for purchase in
accordance with the terms of this SECTION 1.B(f), then the available Common
Units shall be allocated among the Participating Purchasers on a pro rata
basis consistent with each such Participating Purchaser's portion of the
investment made pursuant to such Subsequent Closing. "Fair Market Value"
for purposes of this SECTION 1.B(f) shall be the fair market value of all
equity of the Company using the methodology procedures set forth in the
definition of Fair Market Value in SECTION 6 hereof.
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(iii) The purchase price for each Common Unit repurchased pursuant to this
SECTION 1.B(f) will be $0.10 per unit (each as proportionately adjusted for
all subsequent unit splits, unit dividends and other recapitalizations).
(iv) The closing of the purchase of the Common Units pursuant to this
SECTION 1.B(f) shall take place on the date designated in a notice given to
GTCR Capital Partners in accordance herewith, which date shall not be more
than 30 days nor less than five days after the delivery of such notice.
Each Participating Purchaser will pay for the Common Units to be purchased
by it by a check or wire transfer of immediately available funds. The
Participating Purchasers will be entitled to receive customary
representations and warranties from the sellers regarding such sale and to
require that all sellers' signatures be guaranteed.
7. For the avoidance of doubt, each of the Transaction Documents shall be such
document as amended from time to time pursuant to the terms thereof.
8. Any notices sent to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP pursuant to the terms of the
Agreement shall be sent to the attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.C. and
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
9. The PURCHASER NOTICE SCHEDULE attached to the Agreement shall be replaced
and superseded in its entirety by the PURCHASER NOTICE SCHEDULE attached
hereto.
PURCHASE PROVISIONS
10. Pursuant to Section 1.B(d) of the Agreement (as amended pursuant to this
Amendment and Supplement), the Company has authorized the issuance and sale
to the Purchasers on the date hereof of 58,179.250 Class B Preferred Units,
having the rights and preferences set forth in the LLC Agreement.
11. At the Subsequent Closing, subject to the terms and conditions set forth
herein, for an aggregate purchase price of $58,179,250 (i) GTCR Fund VIII
shall purchase from the Company, and the Company shall sell to GTCR Fund
VIII, 46,643.166 Class B Preferred Units at a price of $1,000 per unit,
(ii) GTCR Fund VIII/B shall purchase from the Company, and the Company
shall sell to GTCR Fund VIII/B, 8,185.659 Class B Preferred Units at a
price of $1,000 per unit; (iii) GTCR Co-Invest shall purchase from the
Company, and the Company shall sell to GTCR Co-Invest, 248.952 Class B
Preferred Units at a price of $1,000 per unit; (iv) GTCR Capital Partners
shall purchase from the Company, and the Company shall sell to GTCR Capital
Partners, 1,485.040 Class B Preferred Units at a price of $1,000 per unit;
and (v) the TCW/Crescent Purchasers shall purchase from the Company, and
the Company shall sell to the TCW/Crescent Purchasers, 1,616.433 Class B
Preferred Units at a price of $1,000 per unit.
12. The Subsequent Closing contemplated by Section 11 above shall occur in
connection with, and concurrent with, the consummation of the Acquisition.
At such Subsequent Closing, the Company shall deliver to each Purchaser one
or more unit certificates evidencing the Class B Preferred Units to be
purchased by such Purchaser, registered in such Purchaser's name, upon
payment of the purchase price thereof by wire transfer of immediately
available funds to such account as designated by the Company.
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13. As a material inducement to the Purchasers to purchase the Class B
Preferred Units, the Company hereby represents and warrants to the
Purchasers that the execution, delivery and performance of this Agreement
and all other agreements contemplated hereby to which the Company is a
party have been duly authorized by the Company. The execution and delivery
by the Company of this Amendment and Supplement, the offering, sale and
issuance of the Class B Preferred Units hereunder and the fulfillment of
and compliance with the respective terms hereof and thereof by the Company,
do not and shall not (i) conflict with or result in a breach of the terms,
conditions or provisions of, (ii) constitute a default under, (iii) result
in the creation of any lien, security interest, charge or encumbrance upon
the equity securities or assets of the Company or any of its Subsidiaries
pursuant to, (iv) give any third party the right to modify, terminate or
accelerate any obligation under, (v) result in a violation of, or (vi)
require any authorization, consent, approval, exemption or other action by
or notice to any court or administrative or governmental body pursuant to,
the LLC Agreement or the Certificate of Formation or the certificate of
incorporation or bylaws (or comparable governing documents) of any of the
Company's Subsidiaries, or any law, statute, rule or regulation to which
the Company or any of its Subsidiaries is subject, or any agreement,
instrument, order, judgment or decree to which the Company or any of its
Subsidiaries is a party or by which it is bound. The representations and
warranties contained in Section 5 of the Agreement are true and correct at
and as of the Subsequent Closing as though then made, except to the extent
of changes caused by the transactions expressly contemplated by the
Agreement or by the other Transaction Documents and except for changes
occurring in the ordinary course of the Company's and its Subsidiaries'
businesses that have not had a material adverse effect on the financial
condition, operating results, assets, operations or business prospects of
the Company or any Subsidiary (including the filing of any material
litigation against the Company or any Subsidiary or the existence of any
material dispute with any Person that involves a reasonable likelihood of
such litigation being commenced).
14. Each Purchaser hereby represents that such Purchaser is acquiring the Class
B Preferred Units pursuant hereto for its own account with the present
intention of holding such securities for purposes of investment, and that
it has no intention of selling such securities in a public distribution in
violation of the federal securities laws or any applicable state securities
laws; PROVIDED THAT, nothing contained herein shall prevent such Purchaser
and any subsequent holders of the Class B Preferred Units from transferring
such securities in compliance with the provisions of Section 4 of the
Agreement.
GENERAL PROVISIONS
15. Except for the changes noted in Sections 1 through 9 above, the Agreement
shall remain in full force and effect and any dispute under this Amendment
and Supplement shall be resolved in accordance with the terms of the
Agreement, including, but not limited to, Section 7.L thereof (Governing
Law).
16. All representations and warranties contained herein or made in writing by
any party in connection herewith shall survive the execution and delivery
of this Amendment and
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Supplement and the consummation of the transactions contemplated hereby,
regardless of any investigation made by a Purchaser or on its behalf.
17. This Amendment and Supplement may be executed in any number of counterparts
(including by means of facsimiled signature pages), which shall together
constitute one and the same instrument.
* * * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment,
Acknowledgment and Supplement to Unit Purchase Agreement on the date first
written above.
PRESTIGE INTERNATIONAL
HOLDINGS, LLC
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Chief Financial Officer
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GTCR FUND VIII, L.P.
By: GTCR Partners VIII, L.P.
Its: General Partner
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, L.L.C.
Its: General Partner
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Principal
GTCR FUND VIII/B, L.P.
By: GTCR Partners VIII, L.P.
Its: General Partner
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, L.L.C.
Its: General Partner
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Principal
GTCR CO-INVEST II, L.P.
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, L.L.C.
Its: General Partner
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Principal
[SIGNATURE PAGE TO FIRST AMENDMENT, ACKNOWLEDGMENT AND SUPPLEMENT TO UNIT
PURCHASE AGREEMENT]
GTCR CAPITAL PARTNERS, L.P.
By: GTCR Mezzanine Partners, L.P.
Its: General Partner
By: GTCR Partners VI, L.P.
Its: General Partner
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C.
Its: General Partner
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Principal
TCW/CRESCENT MEZZANINE
PARTNERS III, L.P.
TCW/CRESCENT MEZZANINE TRUST III
TCW/CRESCENT MEZZANINE
PARTNERS III NETHERLANDS, L.P.
By: TCW/Crescent Mezzanine
Management III, L.L.C.,
its Investment Manager
By: TCW Asset Management Company,
its Sub-Advisor
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
[SIGNATURE PAGE TO FIRST AMENDMENT, ACKNOWLEDGMENT AND SUPPLEMENT TO UNIT
PURCHASE AGREEMENT]
PURCHASE NOTICE SCHEDULE
IF TO THE GTCR PURCHASERS:
GTCR Fund VIII, L.P.
GTCR Fund VIII/B, L.P.
GTCR Co-Invest II, L.P.
c/o GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, L.L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
WITH A COPY TO:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
IF TO GTCR CAPITAL PARTNERS:
c/o GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, L.L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
WITH A COPY TO:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
IF TO THE TCW/CRESCENT PURCHASERS:
TCW/Crescent Mezzanine Partners III, L.P.
TCW/Crescent Mezzanine Trust III
TCW/Crescent Mezzanine Partners III Netherlands, L.P.
▇/▇ ▇▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.▇.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO:
Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP
3000 Thanksgiving Tower
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇