EXHIBIT 1.2
S&S Draft
5/13/98
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PLAYTEX PRODUCTS, INC.
(a Delaware corporation)
[4,008,063] Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
Dated: May [19], 1998
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TABLE OF CONTENTS
INTERNATIONAL PURCHASE AGREEMENT
PAGE
SECTION 1. Representations and Warranties...............................................3
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY....................3
(b) REPRESENTATIONS AND WARRANTIES BY THE SELLING STOCKHOLDERS......11
(c) OFFICER'S CERTIFICATES..........................................14
SECTION 2. Sale and Delivery to International Managers; Closing........................14
(a) THE SECURITIES..................................................14
(b) PAYMENT.........................................................14
(c) DENOMINATIONS; REGISTRATION.....................................15
SECTION 3. Covenants of the Company....................................................15
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND
COMMISSION REQUESTS.............................................15
(b) FILING OF AMENDMENTS............................................15
(c) DELIVERY OF REGISTRATION STATEMENTS.............................16
(d) DELIVERY OF PROSPECTUS..........................................16
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS.......................16
(f) RULE 158........................................................17
(g) LISTING.........................................................17
(h) RESTRICTION ON SALE OF SECURITIES...............................17
(i) REPORTING REQUIREMENTS..........................................18
SECTION 4. Payment of Expenses.........................................................18
(a) EXPENSES.........................................................18
(b) EXPENSES OF THE SELLING STOCKHOLDERS............................18
(c) TERMINATION OF AGREEMENT........................................18
(d) ALLOCATION OF EXPENSES..........................................19
SECTION 5. Conditions of International Managers' Obligations...........................19
(a) EFFECTIVENESS OF REGISTRATION STATEMENT.........................19
(b) OPINION OF COUNSEL FOR COMPANY..................................19
(c) OPINION OF COUNSEL FOR SELLING STOCKHOLDERS.....................20
(d) OPINION OF COUNSEL FOR CERTAIN SELLING STOCKHOLDERS.............20
(e) OPINION OF COUNSEL FOR INTERNATIONAL MANAGERS...................20
(f) OPINION OF COUNSEL FOR THE INTERNATIONAL MANAGERS...............20
(g) OFFICERS' CERTIFICATE...........................................21
(h) CERTIFICATE OF SELLING STOCKHOLDERS.............................21
(i) ACCOUNTANTS' COMFORT LETTER.....................................21
(j) BRING-DOWN COMFORT LETTER.......................................21
(k) APPROVAL OF LISTING.............................................22
(l) NO OBJECTION....................................................22
ii
PAGE
(m) LOCK-UP AGREEMENTS..............................................22
(n) ADDITIONAL DOCUMENTS............................................22
(o) TERMINATION OF AGREEMENT........................................22
SECTION 6. Indemnification.............................................................22
(a) INDEMNIFICATION OF INTERNATIONAL MANAGERS.......................22
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS AND SELLING
STOCKHOLDERS....................................................24
(c) ACTIONS AGAINST PARTIES; NOTIFICATION...........................24
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE..............25
(e) OTHER AGREEMENTS WITH RESPECT TO INDEMNIFICATION................25
SECTION 7. Contribution................................................................25
SECTION 8. Representations, Warranties and Agreements to Survive Delivery..............27
SECTION 9. Termination of Agreement....................................................27
(a) TERMINATION; GENERAL............................................27
(b) LIABILITIES.....................................................28
SECTION 10. Default by One or More of the International Managers.......................28
SECTION 11. Default by One or More of the Selling Stockholders.........................29
SECTION 12. Notices....................................................................29
SECTION 13. Parties....................................................................29
SECTION 14. GOVERNING LAW AND TIME.....................................................30
SECTION 15. Effect of Headings.........................................................30
iii
PAGE
SCHEDULES
Schedule A - List of International Managers................................. Sch A-1
Schedule B - List of Selling Stockholders................................... Sch B-1
Schedule C - Pricing Information............................................ Sch C-1
[Schedule D - List of Subsidiaries........................................... Sch D-1]
[Schedule E - List of Persons and Entities Subject to Lock-up................ Sch E-1]
EXHIBITS
EXHIBIT A-1 - Form of Opinion of Company's Counsel.......................... A-1
EXHIBIT A-2 - Form of Opinion of Company's General Counsel.................. A-2
EXHIBIT B-1 - Form of Opinion of Counsel for the Selling Stockholders ...... B-1
EXHIBIT B-2 - Form of Opinion of Counsel for the Selling Stockholder ....... B-2
EXHIBIT C - Form of Lock-up Letter.......................................... C-1
S&S Draft
5/13/98
PLAYTEX PRODUCTS, INC.
(a Delaware corporation)
[4,008,063] Shares of Common Stock
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
May [19], 1998
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
INTERNATIONAL
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
PaineWebber International (U.K.) Ltd.
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
as Lead Managers of the several International Managers
c/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ International
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
PLAYTEX PRODUCTS, INC., a Delaware corporation (the "Company"),
and the persons listed in Schedule B hereto (the "Selling Stockholders"),
confirm their respective agreements with you and each of the other international
manager's named in Schedule A hereto (collectively, the "International
Managers", which term shall also include any International Manager substituted
as hereinafter provided in Section 10 hereof), for whom you, ▇▇▇▇▇▇▇ ▇▇▇▇▇
International, PaineWebber International (U.K.) Ltd. and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. are
acting as Lead Managers (in such capacity, the "Lead Managers"), with respect to
the sale by the Selling Stockholders, acting severally and not jointly, and the
purchase by the International Managers, acting severally and not jointly, of the
respective numbers of shares of Common Stock, par value $.01 per share, of the
Company ("Common Stock") set forth in Schedules A and B hereto. The aforesaid
[4,008,063] shares of Common Stock to be purchased by the International Managers
are hereinafter called, collectively, the "Securities".
It is understood that the Company and certain stockholders (the
"U.S. Selling Stockholders") are concurrently entering into an agreement dated
the date hereof (the "U.S. Purchase Agreement") providing for the separate
offering by the U.S. Selling Stockholders of an aggregate of [8,609,182] shares
of Common Stock (the "U.S. Securities") through
2
arrangements with certain underwriters within the United States and Canada (the
"U.S. Underwriters") for which ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co., PaineWebber Incorporated and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. are acting as lead
manager(s) (the "U.S. Representatives").
The Company and the Selling Stockholders understand that the
International Managers propose to make a public offering of the Securities as
soon as the Lead Managers deem advisable after this Agreement has been executed
and delivered.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-50099) covering
the registration of the Securities under the Securities Act of 1933, as amended
(the "1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the
Company will either (i) prepare and file a prospectus in accordance with the
provisions of Rule 430A ("Rule 430A") of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations") and paragraph (b) of
Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or (ii) if the Company has
elected to rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare
and file a term sheet (a "Term Sheet") in accordance with the provisions of Rule
434 and Rule 424(b). The form of prospectus relating to the securities is
hereinafter referred to as the "Form of Prospectus". The information included in
any such prospectus or in any such Term Sheet, as the case may be, that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective (a) pursuant to paragraph (b) of Rule 430A is referred to as "Rule
430A Information" or (b) pursuant to paragraph (d) of Rule 434 is referred to as
"Rule 434 Information". The Form of Prospectus used before such registration
statement became effective, and any prospectus that omitted, as applicable, the
Rule 430A Information or the Rule 434 Information, that was used after such
effectiveness and prior to the execution and delivery of this Agreement, is
herein called a "preliminary prospectus". Such registration statement, including
the exhibits thereto, schedules thereto, if any, and the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the
time it became effective and including the Rule 430A Information and the Rule
434 Information, as applicable, is herein called the "Registration Statement".
Any registration statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations is herein referred to as the "Rule 462(b) Registration Statement",
and after such filing the term "Registration Statement" shall include the Rule
462(b) Registration Statement. The final Form of Prospectus, including the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, in the forms first furnished to the International Managers
for use in connection with the offering of the Securities are herein called the
"Prospectus". If Rule 434 is relied on, the term "Prospectus" shall refer to the
preliminary Prospectus dated April 23, 1998 together with
3
the applicable Term Sheet and all references in this Agreement to the date of
such Prospectus shall mean the date of the applicable Term Sheet. For purposes
of this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("▇▇▇▇▇").
All references in this Agreement to financial statements and
schedules and other information which is "contained", "included" or "stated" in
the Registration Statement, any preliminary prospectus (including the Form of
Prospectus) or the Prospectus (or other references of like import) shall be
deemed to mean and include all such financial statements and schedules and other
information which is incorporated by reference in the Registration Statement,
any preliminary prospectus (including the Form of Prospectus) or the Prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each International Manager as of the date hereof and
as of the Closing Time referred to in Section 2(b) hereof, and agrees with each
International Manager, as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company meets
the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information has
been complied with or withdrawn.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time the Registration Statement, the
Rule 462(b) Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and did not
and will not contain an untrue statement of a material fact or omit to
state a material
4
fact required to be stated therein or necessary to make the statements
therein not misleading. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any such amendment or
supplement was issued and at the Closing Time included or will include
an untrue statement of a material fact or omitted or will omit to state
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
International Manager through Lead Managers expressly for use in the
Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus delivered
to the International Managers for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents incorporated or deemed
to be incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations or the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), as applicable, and,
when read together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the time the
Prospectus was issued and at the Closing Time, did not and will not
contain 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.
(iii) INDEPENDENT ACCOUNTANTS. KPMG Peat Marwick L.L.P., who
certified the financial statements and supporting schedules included in
the Registration Statement, are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iv) FINANCIAL STATEMENTS. The historical consolidated financial
statements included in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly the
consolidated financial position of the Company
5
and its subsidiaries at the dates indicated on the basis stated therein
and the statement of operations, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries for the periods specified,
and said financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved except as disclosed
therein. The supporting schedules, if any, included in the Registration
Statement present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data and the
summary financial information included in the Prospectus present fairly
the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement. The pro forma financial statements, the related
notes thereto and other pro forma financial information included in the
Registration Statement and the Prospectus present fairly the information
shown therein, have been prepared in accordance with the Commission's
rules and guidelines with respect to pro forma financial statements and
have been properly compiled on the basis described therein, and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(v) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been
no material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to the Company and
its subsidiaries considered as one enterprise and (C) there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(vi) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
6
(vii) GOOD STANDING OF SUBSIDIARIES. The only subsidiaries of the
Company are the subsidiaries listed on Schedule D hereto (each a
"Subsidiary" and, collectively, the "Subsidiaries"). Each Subsidiary has
been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of each such Subsidiary (except Playtex
Marketing Corporation in which the Company owns 50% of the outstanding
shares of capital stock) has been duly authorized and validly issued, is
fully paid and non-assessable and is owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary.
(viii) CAPITALIZATION. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement or pursuant to
the U.S. Purchase Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or pursuant to the
exercise of convertible securities or options referred to in the
Prospectus). The shares of issued and outstanding capital stock of the
Company, including the Securities to be purchased by the International
Managers from the Selling Stockholders, have been duly authorized and
validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company, including the
Securities to be purchased by the International Managers from the
Selling Stockholders, was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(ix) AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) AUTHORIZATION AND DESCRIPTION OF SECURITIES. The Common Stock
conforms to all statements relating thereto contained in the Prospectus
and such description conforms in all material respects to the rights set
forth in the instruments defining the same; and no holder of the
Securities will be subject to personal liability
7
by reason of being such a holder; and the issuance of the Securities is
not subject to the preemptive or other similar rights of any
securityholder of the Company.
(xi) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor
any of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated in this Agreement, and in the Registration
Statement and compliance by the Company with its obligations under this
Agreement have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary pursuant to, the
Agreements and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation
of the provisions of the charter or by-laws of the Company or any
subsidiary or any material applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any subsidiary or any of their assets, properties or
operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any subsidiary.
(xii) ABSENCE OF LABOR DISPUTE. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, which, may reasonably be expected to result
in a Material Adverse Effect.
(xiii) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected
8
to materially and adversely affect the properties or assets thereof or
the consummation of the transactions contemplated in this Agreement or
the performance by the Company of its obligations hereunder; the
aggregate of all pending legal or governmental proceedings to which the
Company or any subsidiary is a party or of which any of their respective
property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental
to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(xiv) ACCURACY OF EXHIBITS. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(xv) POSSESSION OF INTELLECTUAL PROPERTY. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, except where the failure
to own or possess or otherwise be able to acquire such Intellectual
Property would not result in a Material Adverse Effect, and neither the
Company nor any of its subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted rights
of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the subject
of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xvi) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, license, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations under this Agreement, in connection with the offering,
issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement and the International
Purchase Agreement, except such as have been already obtained or as may
be required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(xvii) POSSESSION OF LICENSES AND PERMITS. The Company and its
subsidiaries possess such material permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local
9
or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in
the aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xviii)TITLE TO PROPERTY. The Company and its subsidiaries have
good and marketable title to all real property owned by the Company and
its subsidiaries and good title to all other properties owned by them
which is material to the business of the Company and its subsidiaries,
in each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such
as (a) are described in the Prospectus or (b) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company or any of its subsidiaries; and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are validly
existing and enforceable, with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such
property except as described in the Prospectus.
(xix) INVESTMENT COMPANY ACT. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xx) ENVIRONMENTAL LAWS. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in
a Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of
10
chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively,
"Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials (collectively, "Environmental Laws"), (B) the
Company and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are each
in compliance with their requirements, (C) there are no pending or, to
the Company's knowledge, threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices
of noncompliance or violation, investigation or proceedings relating to
any Environmental Law against the Company or any of its subsidiaries and
(D) there are no events or circumstances that might reasonably be
expected to form the basis of an order for clean-up or remediation, or
an action, suit or proceeding by any private party or governmental body
or agency, against or affecting the Company or any of its subsidiaries
relating to Hazardous Materials or any Environmental Laws.
(xxi) INSURANCE. Except as set forth in the following sentence,
the Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which
they are engaged, including, but not limited to, insurance coverage with
certain limits in excess of a deductible of $1.0 million per occurrence
and $4.0 million in the aggregate, on toxic shock syndrome claims
occurring on or after December 1, 1995; and neither the Company nor any
of its subsidiaries (i) has received notice from any insurer or agent of
such insurer that substantial capital improvements or other material
expenditures will have to be made in order to continue such insurance or
(ii) has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers at a cost that would not
have a Material Adverse Effect. For toxic shock syndrome claims filed
from October 1, 1985 until November 30, 1995, the Company is
self-insured and bears the costs of defending those claims, including
settlements and trials. The aggregate amount of all toxic shock syndrome
claims pending against the Company does not exceed 10% of the Company's
net asset value.
(xxii) REGISTRATION RIGHTS. Except as disclosed in the
Prospectus, there are no holders of securities (debt or equity) of the
Company, or holders of rights (including, without limitation, preemptive
rights), warrants or options to obtain securities of the Company or the
Subsidiaries, who have the right to request the Company to register
securities held by them under the Securities Act.
(xxiii)INTERNAL CONTROLS. The Company and the Subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance
with management's general and specific
11
authorizations; (ii) transactions are recorded as necessary to permit
preparations of financial statements in conformance with GAAP and to
maintain accountability for assets; (iii) access to assets is permitted
in accordance with management's general or specific authorizations; and
(iv) the record of accountability for assets is compared with the
existing assets at reasonable intervals, and appropriate action is taken
with respect to any differences.
(b) REPRESENTATIONS AND WARRANTIES BY THE SELLING STOCKHOLDERS.
Each Selling Stockholder severally and not jointly represents and warrants to
each International Manager as of the date hereof, as of the Closing Time, and
agrees with each International Manager, as follows:
(i) ACCURATE DISCLOSURE. Such Selling Stockholder has reviewed
and is familiar with any written information provided by such Selling
Stockholder expressly for use in the Registration Statement and the
Prospectus and such information does not include any untrue statement of
a material fact or omit to state a material fact necessary in order to
make such information not misleading; such Selling Stockholder is not
prompted to sell the Securities to be sold by such Selling Stockholder
hereunder by any information concerning the Company or any subsidiary of
the Company which is not set forth in the Prospectus.
(ii) AUTHORIZATION OF AGREEMENTS. Such Selling Stockholder has
the full right, power and authority to enter into this Agreement and a
Power of Attorney and Custody Agreement (the "Power of Attorney and
Custody Agreement") and to sell, transfer and deliver the Securities to
be sold by such Selling Stockholder under this Agreement. The execution
and delivery of this Agreement and the Power of Attorney and Custody
Agreement and the sale and delivery of the Securities to be sold by such
Selling Stockholder and the consummation of the transactions
contemplated herein and compliance by such Selling Stockholder with its
obligations hereunder have been duly authorized by such Selling
Stockholder and do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a
breach of, or default under, or result in the creation or imposition of
any tax, lien, charge or encumbrance upon the Securities to be sold by
such Selling Stockholder or any property or assets of such Selling
Stockholder pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other agreement
or instrument to which such Selling Stockholder is a party or by which
such Selling Stockholder may be bound, or to which any of the property
or assets of such Selling Stockholder is subject, nor will such action
result in any violation of the provisions of the charter or by-laws or
other organizational instrument of such Selling Stockholder, if
applicable, or any applicable treaty, law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or
12
court, domestic or foreign, having jurisdiction over such Selling
Stockholder or any of its properties.
(iii) GOOD AND MARKETABLE TITLE. Such Selling Stockholder has and
will at the Closing Time have good and marketable title to the
Securities to be sold by such Selling Stockholder hereunder, free and
clear of any security interest, mortgage, pledge, lien, charge, claim,
equity or encumbrance of any kind, other than pursuant to this
Agreement; and upon delivery of such Securities and payment of the
purchase price therefor as herein contemplated, assuming each such
International Manager has no notice of any adverse claim, each of the
International Managers will receive good and marketable title to the
Securities purchased by it from such Selling Stockholder, free and clear
of any security interest, mortgage, pledge, lien, charge, claim, equity
or encumbrance of any kind.
(iv) DUE EXECUTION OF POWER OF ATTORNEY AND CUSTODY AGREEMENT.
Such Selling Stockholder has duly executed and delivered, in the form
heretofore furnished to the Lead Managers, the Power of Attorney and
Custody Agreement with ▇▇▇▇▇▇ ▇. ▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., or any of
them, as attorney(s)-in-fact (the "Attorney(s)- in-Fact") and Playtex
Products, Inc., as custodian (the "Custodian"); the Custodian is
authorized to deliver the Securities to be sold by such Selling
Stockholder hereunder and to accept payment therefor; and each
Attorney-in-Fact is authorized to execute and deliver this Agreement and
the certificate referred to in Section 5(f) or that may be required
pursuant to Section(s) 5(l) on behalf of such Selling Stockholder, to
sell, assign and transfer to the International Managers the Securities
to be sold by such Selling Stockholder hereunder, to determine the
purchase price to be paid by the International Managers to such Selling
Stockholder, as provided in Section 2(a) hereof, to authorize the
delivery of the Securities to be sold by such Selling Stockholder
hereunder, to accept payment therefor, and otherwise to act on behalf of
such Selling Stockholder in connection with this Agreement.
(v) ABSENCE OF MANIPULATION. Such Selling Stockholder has not
taken, and will not take, directly or indirectly, any action which is
designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of
the Securities.
(vi) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or consent,
approval, authorization, order, registration, qualification or decree
of, any court or governmental authority or agency, domestic or foreign,
is necessary or required for the performance by each Selling Stockholder
of its obligations hereunder or in the Power of Attorney and Custody
Agreement, or in connection with the sale and delivery of the Securities
hereunder or the consummation of the transactions contemplated by this
Agreement,
13
except such as may have previously been made or obtained or as may be
required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(vii) RESTRICTION ON SALE OF SECURITIES. During a period of 90
days from the date of the Prospectus, each of the Selling Stockholders
set forth in Schedule B, will not, without your prior written consent,
(i) offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of,
directly or indirectly, any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or file
any registration statement under the 1933 Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly,
the economic consequence of ownership of the Common Stock, whether any
such swap or transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Securities
to be sold hereunder or under the U.S. Purchase Agreement, (B) the
exercise of an option to purchase Common Stock or the surrender of
shares of Common Stock of an option in connection with the exercise of
an option, in each case, pursuant to existing employee benefit plans
(including any shares of Common Stock to be added to any such plan at
the 1998 Annual Meeting of the Stockholders of the Company) of the
Company referred to in the Prospectus, (C) transfers by way of testate
or intestate succession or operation of law, (D) transfers to immediate
family members of such Selling Stockholder or a trust or other entity of
all of the beneficial interests which are held by such Selling
Stockholder and (E) transfers to charitable organizations; PROVIDED
that, in the case of transfers pursuant to clauses (C), (D) and (E) of
this sentence, the transferee shall have agreed to be bound by the
restrictions on transfer contained in this paragraph (vii).
(viii) CERTIFICATES SUITABLE FOR TRANSFER. Certificates for all
of the Securities to be sold by such Selling Stockholder pursuant to
this Agreement, in suitable form for transfer by delivery or accompanied
by duly executed instruments of transfer or assignment in blank with
signatures guaranteed, have been placed in custody with the Custodian
with irrevocable conditional instructions to deliver such Securities to
the International Managers pursuant to this Agreement.
(ix) NO ASSOCIATION WITH NASD. Neither such Selling Stockholder
nor any of its affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, or has any other association with (within the meaning of
Article I, Section 1(m) of the By-laws of the National Association of
Securities Dealers, Inc.), any member firm of the National Association
of Securities Dealers, Inc., PROVIDED THAT, by virtue of the
relationship of certain of the Selling Stockholders with certain limited
partnerships, such Selling Stockholders may
14
be deemed to control such limited partnerships, which own, in the
aggregate, approximately 25% of the outstanding capital stock of Freedom
Securities Corporation (the parent corporation of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Incorporated, Sutro & Co. Incorporated, ▇▇▇▇▇▇ Gull ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Inc. and certain other NASD members). Such Selling Stockholders disclaim
being a "person associated with a member" or an "associated person of a
member."
(c) OFFICER'S CERTIFICATES. Any certificate signed by any officer
of the Company or any of its subsidiaries delivered to the Lead Managers or to
counsel for the International Managers shall be deemed a representation and
warranty by the Company to each International Manager as to the matters covered
thereby; and any certificate signed by or on behalf of the Selling Stockholders
as such and delivered to the Lead Managers or to counsel for the International
Managers pursuant to the terms of this Agreement shall be deemed a
representation and warranty by such Selling Stockholder to the International
Managers as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO INTERNATIONAL MANAGERS; CLOSING.
(a) THE SECURITIES. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, each Selling Stockholder, severally and not jointly, agrees to sell to
each International Manager, severally and not jointly, that proportion of the
number of Securities set forth in Schedule B opposite the name of such Selling
Stockholder and each International Manager, severally and not jointly, agrees to
purchase from each Selling Stockholder, at the price per share set forth in
Schedule C, that number of Securities set forth in Schedule A opposite the name
of such International Manager, plus any additional number of Securities which
such International Manager may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of Shearman &
Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, or at such other place as
shall be agreed upon by you and the Company and the Selling Stockholders, at
9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30
P.M. (Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Lead Managers and the Company and the Selling Stockholders (such time and date
of payment and delivery being herein called "Closing Time").
Payment shall be made to the Selling Stockholders by wire
transfer of immediately available funds to bank accounts designated by the
Custodian pursuant to each Selling Stockholder's Power of Attorney and Custody
Agreement against delivery to the Lead
15
Managers for the respective accounts of the International Managers of
certificates for the Securities to be purchased by them. It is understood that
each International Manager has
authorized the Lead Managers, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Securities which it has
agreed to purchase. You, individually and not as Lead Manager of the
International Managers, may (but shall not be obligated to) make payment of the
purchase price for the Securities to be purchased by any International Manager
whose funds have not been received by the Closing Time but such payment shall
not relieve such International Manager from its obligations hereunder.
(c) DENOMINATIONS; REGISTRATION. Certificates for the Securities
shall be in such denominations and registered in such names as the Lead Managers
may request in writing at least two full business days before the Closing Time.
The certificates for the Securities will be made available for examination and
packaging by the Lead Managers in The City of New York not later than 10:00 A.M.
(Eastern time) on the business day prior to the Closing Time.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with
each International Manager as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION
REQUESTS. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify
you and the Selling Stockholders immediately, and confirm the notice in
writing, (i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the Prospectus or
any amended Prospectus shall have been filed, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
or suspending the use of any preliminary prospectus, or of the
initiation or threatening of any proceedings for any of such purposes.
The Company will promptly effect the filings necessary pursuant to Rule
424(b) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under
Rule 424(b) was received for filing by the Commission and, in the event
that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) FILING OF AMENDMENTS. The Company will give you notice
of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or
any amendment, supplement or revision to either the Prospectus included
in the Registration Statement at the time it became
16
effective or to the Prospectus, or any document incorporated by
reference thereto whether filed pursuant to the 1933 Act, the 1934 Act
or otherwise, will furnish you and
the Selling Stockholders with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be,
and will not file or use any such document to which you or counsel for
the International Managers shall reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has
furnished or will, upon request, deliver to the Lead Managers and
counsel for the International Managers and the Selling Stockholders,
without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts, and will also
deliver to the Lead Managers, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the International Managers. The copies of
the Registration Statement and each amendment thereto furnished to the
International Managers will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUS. The Company has delivered to
each International Manager and each Selling Stockholder, without charge,
as many copies of each preliminary prospectus as such International
Manager reasonably requested, and the Company hereby consents to the use
of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each International Manager, without charge, during the period
when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as such International Manager may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to the
International Managers will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company
will comply with the 1933 Act and the 1933 Act Regulations and the 1934
Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in
the Prospectus. If at any time when a prospectus is required by the 1933
Act to be delivered in connection with sales of the Securities, any
event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the International Managers or
for the Company, to amend the Registration Statement or amend or
supplement any Prospectus in order
17
that the Prospectus will not include any untrue statements of a material
fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances
existing at the time any such Prospectus is delivered to a purchaser, or
if it shall be necessary, in the opinion of such counsel, at any such
time to amend the Registration Statement or amend or supplement any such
Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company will promptly prepare and file
with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or
to make the Registration Statement or the Prospectus comply with such
requirements, and the Company will furnish to the International Managers
and the Selling Stockholders such number of copies of such amendment or
supplement as the International Managers may reasonably request.
(f) RULE 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(g) LISTING. The Company will use its best efforts to
effect the listing of the Securities on the New York Stock Exchange.
(h) RESTRICTION ON SALE OF SECURITIES. During a period of
90 days from the date of the Prospectus, the Company will not, without
your prior written consent, (i) directly or indirectly, offer, pledge,
sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of any share of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under
the 1933 Act with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of
ownership of the Common Stock, whether any such swap or transaction
described in clause (i) or (ii) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (A) the Securities to be sold
hereunder or under the U.S. Purchase Agreement, (B) any shares of Common
Stock issued or options to purchase Common Stock granted pursuant to
existing employee benefit plans (including any shares of Common Stock to
be added to any such plan at the 1998 Annual Meeting of Stockholders) of
the Company referred to in the Prospectus or (C) any shares of Common
Stock or securities convertible into or exchangeable for Common Stock
issued as consideration for or to otherwise finance an acquisition of a
business or substantially all the assets of a business, provided, in
each case, that such shares of Common Stock or other security are issued
in connection with
18
a transaction not requiring registration under the 1933 Act and that
such shares are subject to the same restriction on sale provided by this
clause (i).
(i) REPORTING REQUIREMENTS. The Company, during the period
when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by
the 1934 Act and the 1934 Act Regulations.
SECTION 4. PAYMENT OF EXPENSES. (a) EXPENSES. Except as set forth
in Section 4(b), the Company will pay or cause to be paid all expenses incident
to the performance of its and the Selling Stockholders obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the International Managers of this Agreement, any Agreement
among International Managers and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates of
the Securities to the International Managers, including any stock or other
transfer taxes and any stamp or other duties payable upon the sale, issuance or
delivery of the Securities to the International Managers, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors, (v) the
filing fees incident to any necessary filings under state securities laws and
the reasonable fees and disbursements of counsel for the International Managers
in connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
International Managers of copies of each preliminary prospectus, any Term Sheets
and of the Prospectus and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the International Managers of copies of
the Blue Sky Survey and any supplement thereto, (viii) the fees and expenses of
any transfer agent or registrar for the Securities, (ix) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
International Managers in connection with, the review by the National
Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of
the Securities, (x) the fees and expenses incurred in connection with the
listing of the Securities on the New York Stock Exchange and (xi) the fees and
disbursements of the Selling Stockholders' respective counsel and accountants.
(b) EXPENSES OF THE SELLING STOCKHOLDERS. The Selling
Stockholders, jointly and severally, will pay any stamp duties, capital duties
and stock transfer taxes, if any, payable upon the sale of the Securities to the
International Managers, and their transfer between the International Managers
pursuant to an agreement between such International Managers.
(c) TERMINATION OF AGREEMENT. If this Agreement is terminated by
the Lead Managers in accordance with the provisions of Section 5, Section
9(a)(i) or Section 11 hereof, the Company shall reimburse the International
Managers for all of their out-of-pocket
19
expenses, including the reasonable fees and disbursements of counsel for the
International Managers.
(d) ALLOCATION OF EXPENSES. The provisions of this Section shall
not affect any agreement that the Company and the Selling Stockholders may make
for the sharing of such costs and expenses.
SECTION 5. CONDITIONS OF INTERNATIONAL MANAGERS' OBLIGATIONS. The
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company and the Selling
Stockholders contained in Section 1 hereof or in certificates of any officer of
the Company or any subsidiary of the Company or on behalf of any Selling
Stockholder delivered pursuant to the provisions hereof, to the performance by
the Company and the Selling Stockholders of their respective covenants and other
obligations hereunder, and to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The
Registration Statement, including any Rule 462(b) Registration
Statement, has become effective and at Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the International Managers. A
prospectus containing the Rule 430A Information shall have been filed
with the Commission in accordance with Rule 424(b) (or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A) or, if the
Company has elected to rely upon Rule 434, a Term Sheet shall have been
filed with the Commission in accordance with Rule 424(b).
(b) OPINION OF COUNSEL FOR COMPANY. At Closing Time, the
Lead Managers shall have received the favorable opinions, dated as of
Closing Time, of (i) ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel
for the Company, and (ii) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, General Counsel for the
Company, each in form and substance reasonably satisfactory to counsel
for the International Managers, together with signed or reproduced
copies of each letter for each of the other International Managers to,
the effect set forth in Exhibit A-1 and A-2 hereto and to such further
effect as counsel to the International Managers may reasonably request.
In giving their opinion, ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ may
rely, as to all matters governed by the laws of jurisdictions other than
the law of the State of New York, the federal law of the United States
and the General Corporation Law of the State of Delaware, upon the
opinions of counsel satisfactory to the Lead Managers. ▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ may also state that, insofar as such opinion
involves factual matters, they
20
have relied, to the extent they deem proper, upon certificates of
officers of the Company and its subsidiaries and certificates of public
officials.
(c) OPINION OF COUNSEL FOR SELLING STOCKHOLDERS. At
Closing Time, the Lead Managers shall have received the favorable
opinion, dated as of Closing Time, of (i) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel for the Selling Stockholders listed on Schedule F attached
hereto, and (ii) ▇▇▇▇▇▇▇▇ & Worcester, LLP, counsel to the Selling
Stockholder listed on Schedule G attached hereto, each in form and
substance reasonably satisfactory to counsel for the International
Managers, together with signed or reproduced copies of such letter for
each of the other International Managers to the effect set forth in
Exhibits B-1 and B-2 hereto and to such further effect as counsel to the
International Managers may reasonably request.
(d) OPINION OF COUNSEL FOR CERTAIN SELLING STOCKHOLDERS.
At Closing Time, the Lead Managers shall have received the favorable
opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel for the Selling Stockholders in form and substance that has been
previously agreed upon with counsel for the International Managers,
together with signed or reproduced copies of such letter for each of the
other International Managers to the effect as counsel to the
International Managers may reasonably request
(e) OPINION OF COUNSEL FOR INTERNATIONAL MANAGERS. At
Closing Time, the Lead Managers shall have received the favorable
opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for
the International Managers, together with signed or reproduced copies of
such letter for each of the other International Managers with respect to
the matters set forth in clauses (i), (ii), (v) (solely as to preemptive
or other similar rights arising by operation of law or under the charter
or by-laws of the Company), (vii) through (ix), inclusive, (xii), (xiv)
(solely as to the information in the Prospectus under "Description of
Capital Stock--Common Stock") and the penultimate paragraph of Exhibit A
hereto. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of
New York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Lead Managers. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to
the extent they deem proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public officials.
(f) OPINION OF COUNSEL FOR THE INTERNATIONAL MANAGERS. At
Closing Time, each of the Lead Managers, ▇▇-▇▇▇ Acquisition Fund, L.P.,
▇▇-▇▇▇ Acquisition Fund II, L.P. and ▇▇-▇▇▇ Acquisition Fund (Retirement
Accounts) II, L.P., shall have received the favorable opinion, dated as
of Closing Time, of Shearman
21
& Sterling, Counsel for the Lead Manager, in form and substance
satisfactory to counsel for such persons, together with signed or
reproduced copies of such letter for each of the other International
Managers.
(g) OFFICERS' CERTIFICATE. At Closing Time, there shall
not have been, since the date hereof or since the respective dates as of
which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Lead Managers shall have received a
certificate signed by the President or a Vice President of the Company
and of the chief financial or chief accounting officer of the Company,
dated as of Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect
as though expressly made at and as of Closing Time, (iii) the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to Closing Time, and (iv)
to the best of the Company's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(h) CERTIFICATE OF SELLING STOCKHOLDERS. At Closing Time,
the Lead Managers shall have received a certificate of an
Attorney-in-Fact on behalf of each Selling Stockholder, dated as of
Closing Time, to the effect that (i) the representations and warranties
of each Selling Stockholder contained in Section 1(b) hereof are true
and correct in all respects with the same force and effect as though
expressly made at and as of Closing Time and (ii) each Selling
Stockholder has complied in all material respects with all agreements
and all conditions on its part to be performed under this Agreement at
or prior to Closing Time.
(i) ACCOUNTANTS' COMFORT LETTER. At the time of the
execution of this Agreement, the Lead Managers shall have received from
KPMG Peat Marwick L.L.P. a letter dated such date, in form and substance
reasonably satisfactory to the Lead Managers, together with signed or
reproduced copies of such letter for each of the other International
Managers containing statements and information of the type ordinarily
included in accountants' "comfort letters" to International Managers
with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(j) BRING-DOWN COMFORT LETTER. At Closing Time, the Lead
Managers shall have received from KPMG Peat Marwick L.L.P. a letter,
dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished
22
pursuant to subsection (g) of this Section, except that the specified
date referred to shall be a date not more than three business days prior
to Closing Time.
(k) APPROVAL OF LISTING. At Closing Time, the Securities
shall have been approved for listing on the New York Stock Exchange,
subject only to official notice of issuance.
(l) NO OBJECTION. The NASD shall have confirmed that it
has not raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(m) LOCK-UP AGREEMENTS. At the date of this Agreement, the
Lead Managers shall have received an agreement substantially in the form
of Exhibit C hereto signed by the persons listed on Schedule E hereto.
(n) ADDITIONAL DOCUMENTS. At Closing Time counsel for the
International Managers shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass
upon the issuance and sale of the Securities as herein contemplated, or
in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company and the Selling
Stockholders in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to
the Lead Managers and counsel for the International Managers.
(o) TERMINATION OF AGREEMENT. If any condition specified
in this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated by the Lead Managers by
notice to the Company and the Selling Stockholders at any time at or
prior to Closing Time and such termination shall be without liability of
any party to any other party except as provided in Section 4 and except
that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
23
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF INTERNATIONAL MANAGERS. The Company,
agrees to indemnify and hold harmless each International Manager and each
person, if any, who controls any International Manager within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act to the extent and in
the manner set forth below. In addition, each of the Selling Stockholders agrees
to indemnify and hold harmless each International Manager and each person, if
any, who controls any International Manager within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act to the extent and in the manner set
forth in clause (i) set forth below.
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; PROVIDED
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company and the Selling Stockholders;
and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
you), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged
24
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by any International Manager
through the Lead Managers expressly for use in the Registration Statement (or
any amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto); PROVIDED FURTHER, that with respect to
each Selling Stockholder this indemnity agreement shall only apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by such
Selling Stockholder expressly for use in the Registration Statement (or any
amendment thereto, including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto); and PROVIDED FURTHER, that the Company
will not be liable to an Underwriter with respect to any preliminary Prospectus
to the extent that the Company shall sustain the burden of proving that any such
loss, liability, claim, damage or expense solely resulting from the fact that
such Underwriter, in contravention of a requirement of this Agreement or
applicable law, sold Securities to a person to whom such Underwriter failed to
send or give, at or prior to the Closing Date, a copy of the Final Prospectus as
then amended or supplemented if the Company has previously furnished copies
thereof (sufficiently in advance of the Closing Date to allow for distribution
by the Closing Date) to the Underwriters and the loss, liability, claim, damage
or expense of such Underwriter resulted from an untrue statement or omission or
alleged untrue statement or omission of a material fact contained in or omitted
from the preliminary Prospectus which was corrected in the Final Prospectus as,
if applicable, amended or supplemented prior to the Closing Date and such
Prospectus was required by law to be delivered at or prior to the written
confirmation of sale to such person.
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS AND
SELLING STOCKHOLDERS. Each International Manager severally agrees to indemnify
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
and each Selling Stockholder against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such International Manager
through the Lead Managers expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
25
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties shall be selected by you, and, in the
case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company and shall be reasonably
satisfactory to the Selling Stockholders if the Selling Stockholders may be
entitled to indemnification. An indemnifying party may participate at its own
expense in the defense of any such action; PROVIDED, HOWEVER, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party (which consent shall not be unreasonably withheld if the
conditions in clauses (i) and (ii) herein have been satisfied).
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request (to the
extent such reimbursement request is not being disputed in good faith by such
indemnifying party prior to the date of such settlement.
26
(e) OTHER AGREEMENTS WITH RESPECT TO INDEMNIFICATION. The
provisions of this Section shall not affect any agreement among the Company and
the Selling Stockholders with respect to indemnification.
SECTION 7. CONTRIBUTION. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the International
Managers on the other hand from the offering of the Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Selling Stockholders on the one hand and of the
International Managers on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling
Stockholders on the one hand and the International Managers on the other hand in
connection with the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the Selling Stockholders and the total
underwriting discount received by the International Managers, in each case as
set forth on the cover of the Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet, bear to the aggregate initial public
offering price of the Securities as set forth on such cover.
The relative fault of the Company and the Selling Stockholders on
the one hand and the International Managers on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or the
Selling Stockholders or by the International Managers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, the Selling Stockholders and the International
Managers agree that it would not be just and equitable if contribution pursuant
to this Section were determined by pro rata allocation (even if the
International Managers were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section. The aggregate amount of
losses, liabilities,
27
claims, damages and expenses incurred by an indemnified party and referred to
above in this Section shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section, no International
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such International Manager has otherwise been required to pay by reason of any
such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls
an International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company or any Selling Stockholder within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company or such Selling Stockholder, as the case may be. The
International Managers' respective obligations to contribute pursuant to this
Section are several in proportion to the number of Securities set forth opposite
their respective names in Schedule A hereto and not joint.
The provisions of this Section shall not affect any agreement
among the Company and the Selling Stockholders with respect to contribution.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries or the Selling Stockholders submitted pursuant hereto shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any International Manager or controlling person, or by or on
behalf of the Company or the Selling Stockholders, and shall survive delivery of
the Securities to the International Managers.
28
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Lead Managers may terminate this
Agreement, by notice to the Company and the Selling Stockholders, at any time at
or prior to Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Lead Managers, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or (iv) if a banking moratorium has been declared by either federal
or New York authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE INTERNATIONAL MANAGERS.
If one or more of the International Managers shall fail at Closing Time to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Lead Managers shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting International Managers, or any other International Managers, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the Lead
Managers shall not have completed such arrangements within such 24-hour period,
then:
(a) if the number of Defaulted Securities does not exceed
10% of the number of Securities to be purchased on such date, the
non-defaulting International Managers shall be obligated, each severally
and not jointly, to purchase the full amount
29
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of
the number of Securities to be purchased on such date, this Agreement
shall terminate without liability on the part of any non-defaulting
International Manager.
No action taken pursuant to this Section shall relieve any
defaulting International Manager from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either (i) the Lead Managers or (ii) the Company
and any Selling Stockholder shall have the right to postpone Closing Time for a
period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
As used herein, the term "International Manager" includes any person substituted
for an International Manager under this Section.
SECTION 11. DEFAULT BY ONE OR MORE OF THE SELLING STOCKHOLDERS.
(a) If a Selling Stockholder shall fail at Closing Time to
sell and deliver the number of Securities which such Selling Stockholder is
obligated to sell hereunder, and the remaining Selling Stockholders do not
exercise the right hereby granted to increase, pro rata or otherwise, the
number of Securities to be sold by them hereunder to the total number to be
sold by all Selling Stockholders as set forth in Schedule B hereto, then the
International Managers may, at the option of the Lead Managers, by notice
from the Lead Managers to the Company and the non-defaulting Selling
Stockholders, either (a) terminate this Agreement without any liability on
the part of any non-defaulting party except that the provisions of Sections
1, 4, 6, 7 and 8 shall remain in full force and effect or (b) elect to
purchase the Securities which the non-defaulting Selling Stockholders and the
Company have agreed to sell hereunder. No action taken pursuant to this
Section shall relieve any Selling Stockholder so defaulting from liability in
respect of such default.
In the event of a default by any Selling Stockholder as referred
to in this Section, each of the Lead Managers, the Company and the
non-defaulting Selling Stockholders shall have the right to postpone Closing
Time for a period not exceeding seven days in order to effect any required
change in the Registration Statement or Prospectus or in any other documents or
arrangements.
(b) If the Company shall fail at Closing Time to sell the number
of Securities that it is obligated to sell hereunder, then this Agreement shall
terminate without any liability on the part of any non-defaulting party;
PROVIDED, HOWEVER, that the provisions of Sections 1, 4, 6, 7 and 8 shall remain
in full force and effect. No action taken pursuant to this Section shall relieve
the Company from liability in respect of such default.
30
SECTION 12. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Lead Managers at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ of ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ Securities Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇; notices to
the Company shall be directed to it at Playtex Products, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Chief Financial Officer;
and notices to the Selling Stockholders shall be directed to ▇▇▇▇▇▇ ▇. ▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. ▇/o ▇▇▇▇▇▇ ▇. ▇▇▇ Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
SECTION 13. PARTIES. This Agreement shall inure to the benefit of
and be binding upon the International Managers, the Company and the Selling
Stockholders and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the International Managers, the Company and the Selling
Stockholders and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
Lead Managers, any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. This Agreement and all
conditions and provisions hereof are intended to be for the sole and exclusive
benefit of the International Managers, the Company and the Selling Stockholders
and their respective successors, and said controlling persons and officers and
directors and their heirs and legal Lead Managers, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
International Manager shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. EFFECT OF HEADINGS. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
31
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorney-in-Fact for
the Selling Stockholders a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the International
Managers, the Company and the Selling Stockholders in accordance with its terms.
Very truly yours,
PLAYTEX PRODUCTS, INC.
By:
----------------------
Title:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By:
----------------------
As Attorney-in-Fact acting on behalf
of the Selling Stockholders named in
Schedule B hereto
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
INTERNATIONAL
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
PaineWebber International (UK) Limited
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
INTERNATIONAL
By:
--------------------------------
Authorized Signatory
For themselves and as Lead Managers of the other International Managers named in
Schedule A hereto.
SCHEDULE A
NUMBER OF
NAME OF INTERNATIONAL MANAGER SECURITIES
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ International........................
▇▇▇▇▇▇▇ ▇▇▇▇▇ International.......................................
PaineWebber International (U.K.) Limited..........................
▇▇▇▇▇ ▇▇▇▇▇▇ Inc..................................................
Total............................................................. [ ]
===========
SCHEDULE B
NUMBER OF
SECURITIES TO BE SOLD
---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇..................... 209,756
▇▇-▇▇▇ Acquisition Fund, L.P. 1,406,204
1989 ▇▇▇▇▇▇ ▇. ▇▇▇ Nominee 1,361,951
Trust dated September 29, 1998.....
▇▇-▇▇▇ Acquisition Fund II, 343,726
L.P................................
▇▇-▇▇▇ Acquisition Fund II 183,560
(Retirement Accounts), L.P.........
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ 1988 20,506
Irrevocable Trust..................
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ 1988 20,506
Irrevocable Trust..................
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇................... 146,252
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇................. 131,994
▇▇▇▇▇ ▇. ▇▇▇▇▇▇.................... 83,465
▇. ▇▇▇▇▇▇ ▇▇▇▇..................... 87,839
▇▇▇▇▇▇ ▇. ▇▇▇▇▇.................... 6,152
▇▇▇▇▇ ▇▇▇▇▇▇....................... 6,152
Total.............................. 4,008,063
SCHEDULE C
PLAYTEX PRODUCTS, INC.
[4,008,063] Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the
Securities, determined as provided in said Section 2, shall be $ .
2. The purchase price per share for the Securities to be
paid by the several International Managers shall be $ , being an amount
equal to the initial public offering price set forth above less $ per
share.
SCHEDULE D
PERCENT JURISDICTION OF
SUBSIDIARY OWNERSHIP INCORPORATION
---------- --------- -------------
Inter Stretch Ltd. 100% owned by Ireland
Limited
Playtex Beauty Care, Inc. 100% Delaware
Playtex Foreign Sales, Corp. 100% owned by TH Barbados
Marketing
Playtex International, Inc. ("International") 100% Delaware
Playtex Investment Corp. 100% Delaware
Playtex Limited ("Limited") 100% owned by Canada
International
Playtex Manufacturing, Inc. 100% Delaware
Playtex Marketing Corp. 50% Delaware
Playtex Sales & Services, Inc. 100% Delaware
Smile Tote, Inc. 100% California
Sun Pharmaceuticals Corp. 100% Delaware
TH Marketing Corp. 100% owned by Delaware
International
Personal Care Holdings, Inc. ("PCH") 100% Delaware
Personal Care Group, Inc. ("PCG") 100% owned by PCH Delaware
Personal Care Group Australia PTY, Ltd. 100% owned by PCG Australia
Personal Care Group FSC, Inc. 100% owned by PCG U.S. Virgin
Islands
Carewell Industries, Inc. 100% New York
SCHEDULE E
List of Persons and Entities
Subject to Lock-up
▇▇▇▇ Wheat & Partners Incorporated
SCHEDULE F
▇▇-▇▇▇ Acquisition Fund, L.P.
1989 ▇▇▇▇▇▇ ▇. ▇▇▇ Nominee Trust
dated September 29, 1998
▇▇-▇▇▇ Acquisition Fund II, L.P.
▇▇-▇▇▇ Acquisition Fund II (Retirement
Accounts), L.P.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ 1988 Irrevocable
Trust
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ 1988 Irrevocable Trust
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
SCHEDULE G
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
EXHIBIT A-1
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware.
(ii) The Company has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
(iii) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus in the column entitled "Actual" under
the caption "Capitalization" (except for subsequent issuances, if any, pursuant
to the Purchase Agreement and the International Purchase Agreement or pursuant
to reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or options
referred to in the Prospectus); the shares of issued and outstanding capital
stock of the Company, including the Securities to be purchased by the
International Managers from the Selling Stockholders, have been duly authorized
and validly issued and are fully paid and non-assessable; and none of the
outstanding shares of capital stock of the Company was issued in violation of
the preemptive or other similar rights of any securityholder of the Company in
the Company's certificate of incorporation or by-laws or under the General
Corporation Law of the State of Delaware.
(iv) The sale of the Securities by the Selling Stockholders is
not subject to the preemptive or other similar rights of any securityholder of
the Company in the Company's certificate of incorporation or by-laws or under
the General Corporation Law of the State of Delaware.
(v) Each Subsidiary (except for Playtex Limited, Inter Stretch
Ltd., Playtex Foreign Sales Corporation, Smile-Tote, Inc. Personal Care Group
Australia PTY, Ltd. and Personal Care Group FSC, Inc. as to which such counsel
need not opine) has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus.
A - 2
(vi) The Purchase Agreement has been duly authorized, executed
and delivered by the Company.
(vii) We have been advised orally by the staff of the Commission
that the Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; and we have been
advised orally by the staff of the Commission that no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and, to our knowledge, no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
(viii) The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434 Information,
as applicable, the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement and
Prospectus, excluding the documents incorporated by reference therein, as of
their respective effective or issue dates (other than the financial statements,
supporting schedules and other financial statistical data included therein or
omitted therefrom, as to which we need express no opinion) complied as to form
in all material respects with the requirements of the 1933 Act and the 1933 Act
Regulations for purposes of this Opinion, we have assumed that the statements in
the Registration Statement are complete and correct.
(ix) The documents incorporated by reference in the Prospectus
(other than the financial statements, supporting schedules and other financial
statistical data included therein or omitted therefrom, as to which we need
express no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material respects
with the requirements of the 1933 Act or the 1934 Act, as applicable, and the
rules and regulations of the Commission thereunder. For purposes of this
Opinion, we have assured that the statements in the Registration Statement are
complete and correct.
(x) The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory requirements,
with any applicable requirements of the charter and by-laws of the Company and
the requirements of the New York Stock Exchange.
(xi) The information in the Prospectus under "Management's
Discussion and Analysis of Financial Condition and Results of Operations -
Financial Condition and Liquidity" and "Description of Capital Stock" and in the
Registration Statement under Item 15, to the extent that it constitutes matters
of law, summaries of legal matters, the Company's charter and by-laws or legal
proceedings, or legal conclusions, has been reviewed by us and is correct in all
material respects.
A - 3
(xii) To our knowledge, there are no statutes or regulations that
are required by the 1933 Act to be described in the Prospectus that are not
described as required.
(xiii) All descriptions in the Registration Statement of
contracts and other documents to which the Company or its subsidiaries are a
party are accurate in all material respects; to the best of our knowledge, there
are no franchises, contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by reference as
exhibits thereto, and the descriptions thereof or references thereto are correct
in all material respects.
(xiv) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency of the State of Delaware or New York or the
United States (other than under the 1933 Act and the 1933 Act Regulations, which
have been obtained, or as may be required under the securities or blue sky laws
of the various states, as to which we need express no opinion), is necessary or
required in connection with the due authorization, execution and delivery of the
Purchase Agreement or for the offering, issuance, sale or delivery of the
Securities.
(xv) The Company is not required to be registered as an
"investment company" under the 1940 Act and the rules and regulations of the
Commission Promulgated thereunder.
(xvi) The execution, delivery and performance of the Purchase
Agreement and the consummation of the transactions contemplated in the Purchase
Agreement and the Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use Of Proceeds") and compliance
by the Company with its obligations under the Purchase Agreement do not and will
not, whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined in Section 1(a)(xi) of the Purchase Agreements) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, presented to us by the Company as being material after
our due inquiry to which the Company or any subsidiary is a party or by which it
or any of them may be bound, or to which any of the property or assets of the
Company or any subsidiary is subject (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any subsidiary, or any material
applicable law, statute, rule, regulation, judgment, order, writ or decree,
known to us, of any government, government instrumentality or court, domestic or
A - 4
foreign, having jurisdiction over the Company or any subsidiary or any of their
respective properties, assets or operations.
We have participated in the preparation of the Registration
Statement and the Prospectus and, although we have not undertaken to investigate
or verify independently and do not assume responsibility for, the accuracy or
completeness of the statements contained in either of them (other than as
explicitly stated in paragraphs (iii) and (xiii) above), based upon such
participation (and relying as to materiality to the extent we deemed reasonable
on officers, employees and other representatives of the Company), nothing has
come to our attention that would lead us to believe that the Registration
Statement or any amendment thereto, including the Rule 430A Information and Rule
434 Information (if applicable) (except for financial statements and schedules
and other financial data included or incorporated by reference therein or
omitted therefrom, as to which we need make no statement), at the time such
Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus or any amendment or supplement thereto (except for
financial statements and schedules and other financial and statistical data
included or incorporated by reference therein or omitted therefrom, as to which
we need make no statement), at the time the Prospectus was issued, at the time
any such amended or supplemented prospectus was issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters
of fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
EXHIBIT A-2
FORM OF OPINION OF COMPANY'S GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
`
(i) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(ii) Except as disclosed in the Prospectus, to the best of my
knowledge, there is not pending or threatened any action, suit, proceeding,
inquiry or investigation, to which the Company or any subsidiary is a party, or
to which the property of the Company or any subsidiary is subject, before or
brought by any court or governmental agency or body, domestic or foreign, which
might reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the properties
or assets thereof or the consummation of the transactions contemplated in the
Purchase Agreement or the performance by the Company of its obligations
thereunder.
(iii) The information in the Prospectus under
"Business-Trademarks and Patents", "Business Regulation" and "Business Legal
Proceedings" has been reviewed by me and is correct in all maternal respects.
EXHIBIT B-1
FORM OF OPINION OF COUNSEL FOR THE SELLING STOCKHOLDERS
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) No filing with, or consent, approval, authorization, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than the issuance of the order
of the Commission declaring the Registration Statement effective and such
authorizations, approvals or consents as may be necessary under state securities
laws, as to which we need express no opinion), is necessary or required to be
obtained by the Selling Stockholders for the performance by each Selling
Stockholder of its obligations under the Purchase Agreement or in the Power of
Attorney and Custody Agreement, or in connection with the offer, sale or
delivery of the Securities.
(ii) Each Power of Attorney and Custody Agreement has been duly
executed and delivered by the respective Selling Stockholders named therein and
constitutes the legal, valid and binding agreement of each such Selling
Stockholder subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium, receivership and other laws affecting creditors' rights, (ii) the
effect of general principles of equity and the possible unavailability of
specific performance or injunctive relief and (iii) public policy considerations
or court decisions which may limit the rights of any party to obtain certain
remedies and to indemnification.
(iii) The Purchase Agreement has been duly authorized, executed
and delivered by or on behalf of each Selling Stockholder.
(iv) Each Attorney-in-Fact has been duly authorized by the
Selling Stockholders to deliver the Securities on behalf of the Selling
Stockholders in accordance with the terms of the Purchase Agreement.
(v) The execution, delivery and performance of the Purchase
Agreement and the Power of Attorney and Custody Agreement and the sale and
delivery of the Securities and the consummation of the transactions contemplated
in the Purchase Agreement and in the Registration Statement and compliance by
the Selling Stockholders with their obligations under the Purchase Agreement
have been duly authorized by all necessary action on the part of the Selling
Stockholders and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of, or
default under or result in the creation or imposition of any tax, lien, charge
or encumbrance upon the Securities or any property or assets of the Selling
Stockholders pursuant to, any contract, indenture, mortgage,
B-1-2
deed of trust, loan or credit agreement, note, license, lease or other
instrument or agreement to which any Selling Stockholder is a party or by which
it may be bound, or to which any of the property or assets of any Selling
Stockholder may be subject, nor will such action result in any violation of the
provisions of the charter or by-laws of any Selling Stockholder, if applicable,
or any law, administrative regulation, judgment or order of any governmental
agency or body or any administrative or court decree having jurisdiction over
such Selling Stockholder or any of its properties.
(vi) To the best of our knowledge, each Selling Stockholder has
valid and marketable title to the Securities to be sold by such Selling
Stockholder pursuant to the Purchase Agreement, free and clear of any pledge,
lien, security interest, charge, claim, equity or encumbrance of any kind, and
has full right, power and authority to sell, transfer and deliver such
Securities pursuant to the Purchase Agreement. By delivery of a certificate or
certificates therefor such Selling Stockholder will transfer to the
International Managers who have purchased such Securities pursuant to the
Purchase Agreement (without notice of any defect in the title of such Selling
Stockholder and who are otherwise protected purchasers for purposes of the
Uniform Commercial Code) valid and marketable title to such Securities, free and
clear of any adverse claims.
Such opinion shall provide that it does not address matters
covered by the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ called for by Section 5(d)
of the International Purchase Agreement.
Such opinion shall state that such counsel has relied, as to
factual matters, upon the representations and warranties given by the Selling
Stockholders in the Power of Attorney and Custody Agreement and that such
counsel has assumed that the Power of Attorney and Custody Agreement are
governed by Massachusetts law, notwithstanding their express terms.
EXHIBIT B-2
FORM OF OPINION OF COUNSEL FOR THE SELLING STOCKHOLDERS
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) No filing with, or consent, approval, authorization, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than the issuance of the order
of the Commission declaring the Registration Statement effective and such
authorizations, approvals or consents as may be necessary under state securities
laws, as to which we need express no opinion), is necessary or required to be
obtained by ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (collectively, the "Selling
Stockholders") for the performance by the Selling Stockholders of their
obligations under the Purchase Agreement or in the Power of Attorney and Custody
Agreement, or in connection with the offer, sale or delivery of the Securities.
(ii) The Power of Attorney and Custody Agreement has been duly
executed and delivered by each Selling Stockholder and constitutes the legal,
valid and binding agreement of such Selling Stockholder.
(iii) The Purchase Agreement has been duly authorized, executed
and delivered by or on behalf of the Selling Stockholders.
(iv) The Attorney-in-Fact has been duly authorized by each
Selling Stockholder to deliver the Securities on behalf of such Selling
Stockholder in accordance with the terms of the Purchase Agreement.
(v) The execution, delivery and performance of the Purchase
Agreement and the Power of Attorney and Custody Agreement and the sale and
delivery of the Securities and the consummation of the transactions contemplated
in the Purchase Agreement and in the Registration Statement and compliance by
the Selling Stockholders with their obligations under the Purchase Agreement
have been duly authorized by all necessary action on the part of the Selling
Stockholders and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of, or
default under or result in the creation or imposition of any lien, charge or
encumbrance upon the Securities or any property or assets of any Selling
Stockholder pursuant to, any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, license, lease or other instrument or agreement known
to us after due inquiry made to the Selling Stockholders to which any Selling
Stockholder is a party or by which it may be bound, or to which any of the
property or assets of any Selling
B-2-2
Stockholder may be subject, nor will such action result in any violation of the
provisions of the Partnership Agreement of any Selling Stockholder, if
applicable, or any law, administrative regulation, judgment or order known to us
of any governmental agency or body or any administrative or court decree having
jurisdiction over any Selling Stockholder or any of its properties.
(vi) Each Selling Stockholder is the sole record owner and, to
our knowledge, is the sole beneficial owner of the Securities being sold by him,
her or it pursuant to the Purchase Agreement, free and clear of any pledge,
lien, security interest, charge, claim, equity or encumbrance of any kind, and,
to our knowledge, has the full right, power and authority to sell, transfer and
deliver such Securities pursuant to the Purchase Agreement. Upon proper delivery
of the certificates for the Securities of the Selling Stockholders accompanied
by proper stock transfer instruments to the Underwriters, assuming the
Underwriters have purchased the Securities for value in accordance with the
terms of the Purchase Agreement and without notice of any adverse claim, the
Underwriters will acquire all rights of the Selling Stockholders in the
Securities free and clear of any adverse claim.
EXHIBIT C
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
INTERNATIONAL
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
PaineWebber International (U.K.) Ltd.
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
as Lead Managers of the several International Managers
c/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ International
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: PROPOSED PUBLIC OFFERING BY PLAYTEX PRODUCTS, INC.
Dear Sirs:
The undersigned, [a stockholder and an officer and/or director]
of Playtex Products, Inc., a Delaware corporation (the "Company"), understands
that ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇
International, PaineWebber International (U.K.) Ltd. and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
propose(s) to enter into a Purchase Agreement (the "Purchase Agreement") with
the Company and the Selling Stockholders providing for the public offering of
shares (the "Securities") of the Company's common stock, par value $.01 per
share (the "Common Stock") outside of the United States & Canada. In recognition
of the benefit that such an offering will confer upon the undersigned as a
stockholder [and an officer and/or director]2 of the Company, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned agrees with each International Manager to be named
in the Purchase Agreement that, during a period of 90 days from the date of the
Purchase Agreement, the undersigned will not, without your prior written
consent, directly or indirectly, (i) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant for the sale of, or otherwise dispose of or
transfer any shares of the Company's Common Stock or any securities convertible
into or exchangeable or exercisable for Common Stock, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition, or file any registration
statement under the Securities Act of 1933, as amended, with respect to any of
the foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any such swap or
transaction is to be settled by delivery of Common Stock or other securities, in
cash or otherwise, except, in each case, for (A) sales of Common Stock pursuant
to the U.S. Purchase Agreement among ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., PaineWebber Incorporated and ▇▇▇▇▇ ▇▇▇▇▇▇
Inc., and certain Selling Stockholders, (B) the exercise of an option to
purchase Common Stock or the surrender of shares of Common Stock or of an option
in connection with the exercise of an option, in each case, pursuant to existing
employee benefit plans of the Company referred to in the Prospectus, (C)
transfers by way of testate or intestate succession or operation of law, (D)
transfers to immediate family members of such Selling Stockholder or a trust or
other entity of all of the beneficial interests which are held by such Selling
Stockholder and (E) transfers to charitable organizations; PROVIDED that, in the
case of transfers pursuant to clauses (C), (D) and (E) of this sentence, the
transferee shall have agreed to be bound by the restrictions on transfer
contained in this letter.
Very truly yours,
Signature:
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