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Exhibit 10.12
EXECUTION COPY
SENIOR PREFERRED INVESTOR RIGHTS AGREEMENT
THIS SENIOR PREFERRED INVESTOR RIGHTS AGREEMENT (this "AGREEMENT") is made
as of March 5, 2004 by and among (i) Medtech/Denorex, LLC, a Delaware limited
liability company (the "COMPANY"), (ii) GTCR Fund VIII, L.P. ("GTCR"), (iii)
TSG3 L.P., J. Gary Shansby, Charles H. Esserman, Michael L. Mauze, and James L.
O'Hara (each individually an "INITIAL SECURITYHOLDER" and, collectively, the
"INITIAL SECURITYHOLDERS") and (iv) each other Person (other than the Company,
GTCR or any of their respective designees) who, at any time after the date
hereof, acquires Senior Preferred Units of the Company (the "Senior Preferred
Units") in accordance with the terms hereof and executes a counterpart of this
Agreement or otherwise agrees to be bound by this Agreement (each, a "SUBSEQUENT
SECURITYHOLDER" and, collectively, the "SUBSEQUENT SECURITYHOLDERS"). Each of
the Initial Securityholders and the Subsequent Securityholders are sometimes
referred to herein individually as a "SECURITYHOLDER" and collectively as the
"SECURITYHOLDERS." Capitalized terms used but not otherwise defined herein are
defined in SECTION 8 hereof; PROVIDED THAT, if any term is not defined herein,
then such term shall have the same meaning assigned to it in the LLC Agreement.
The Initial Securityholders will acquire Senior Preferred Units pursuant to
that certain Stock Purchase Agreement, dated as of March 5, 2004 (the "STOCK
PURCHASE AGREEMENT"), by and among the Company, the Initial Securityholders, The
Spic and Span Company and the other parties named therein (as amended,
supplemented or modified from time to time pursuant to its terms).
The Company, GTCR and the Securityholders desire to enter into this
Agreement for the purposes, among others, of limiting the manner and terms by
which the Senior Preferred Units may be transferred and providing the Company,
GTCR and the holders of Senior Preferred Units with certain other rights and
obligations related thereto. The execution and delivery of this Agreement and
the LLC Agreement by the Initial Securityholders is a condition to the Company
and its Subsidiary's obligations to consummate the transactions contemplated by
the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. RESTRICTIONS ON TRANSFER.
(a) No Securityholder shall Transfer directly or indirectly any
interest in Securityholder Securities except pursuant to the provisions of this
Agreement and the LLC Agreement.
(b) At least 30 days prior to making any Transfer of any
Securityholder Securities, any Securityholder desiring to make such Transfer
(the "TRANSFERRING SECURITYHOLDER") will give written notice (the "OFFER
NOTICE") to the Company and GTCR. The Offer Notice will disclose in reasonable
detail the proposed number of Securityholder Securities
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to be Transferred, the proposed terms and conditions of the Transfer and the
identity of the prospective transferee(s) (if known). First, GTCR (and/or its
designees) may elect to purchase all or any portion of the Securityholder
Securities specified in the Offer Notice at the price and on the terms specified
therein by delivering a written notice of such election to the Transferring
Securityholder and the Company within 20 days after the delivery of the Offer
Notice. If GTCR (and its designees) have not elected to purchase all of the
Securityholder Securities specified in the Offer Notice, the Company (and/or its
designees) may elect to purchase all (but not less than all) of such remaining
Securityholder Securities specified in the Offer Notice at the price and on the
terms specified in the Offer Notice by delivering written notice of such
election to the Transferring Securityholder within 25 days after delivery of the
Offer Notice. If GTCR, the Company and/or any of their respective designees have
elected to purchase all (but not less than all) of the Securityholder Securities
specified in the Offer Notice from the Transferring Securityholder, the Transfer
of such Securityholder Securities shall be consummated as soon as practical
after the delivery of the election notice(s) to the Transferring Securityholder,
but in any event within 45 days after delivery of the Offer Notice. If GTCR, the
Company and their respective designees have not elected to purchase all of the
Securityholder Securities specified in the Offer Notice, the Transferring
Securityholder may, within 120 days after the delivery of the Offer Notice,
Transfer such Securityholder Securities to any transferee(s) approved in writing
by the Board (which approval shall not be unreasonably withheld), at a price and
on terms no more favorable to such transferee(s) than offered to GTCR and the
Company in the Offer Notice; PROVIDED THAT the restrictions contained in this
Agreement will continue to be applicable to the Securityholder Securities after
any Transfer pursuant to this sentence and each such transferee of such
Securityholder Securities shall agree in writing to be bound by the provisions
of this Agreement as a Subsequent Securityholder hereunder. Any Securityholder
Securities not Transferred within such 120-day period shall be reoffered to GTCR
and the Company under this SECTION 1(b) prior to any subsequent Transfer. The
Company may pay all or any portion of the purchase price for such units by
offsetting amounts outstanding under any bona fide debts owed by the
Transferring Securityholder or any of its Affiliates to the Company.
Notwithstanding anything herein to the contrary, in no event shall any Transfer
of Securityholder Securities pursuant to this SECTION 1(b) (other than a
Transfer to GTCR, the Company and/or their respective designees) be made for any
consideration other than cash payable upon consummation of such Transfer,
without the prior written consent of GTCR and the Company.
(c) Transfers of Securityholder Securities for which the
restrictions of this SECTION 1 shall not apply and which shall be otherwise
permitted are Transfers (i) by any Securityholder to or among its Affiliates or
Family Group and (ii) pursuant to (A) a Public Sale, (B) Section 15.7 of the LLC
Agreement in connection with the incorporation of the Company (to facilitate a
Public Offering or otherwise) or (C) SECTIONS 2 or 3 hereof; PROVIDED THAT, the
restrictions contained in this Agreement will continue to be applicable to the
Securityholder Securities after any Transfer pursuant to clause (i) above and
each transferee of such Securityholder Securities shall agree in writing to be
bound by the provisions of this Agreement as a Subsequent Securityholder
hereunder. Upon the Transfer of Securityholder Securities pursuant to clause (i)
of the previous sentence, the transferee will deliver a written notice to the
Company, which notice will disclose in reasonable detail the identity of such
transferee.
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(d) The restrictions set forth in this SECTION 1 shall continue
with respect to each unit of Securityholder Securities until the date on which
such unit of Securityholder Securities has been transferred in a Public Sale.
2. PUT RIGHT.
(a) If a Liquidity Event is proposed to occur, the Company shall
give written notice of such proposed Liquidity Event describing in reasonable
detail the material terms and date of consummation thereof to each
Securityholder not more than 45 days nor less than 15 days prior to the
anticipated consummation date of such Liquidity Event, and the Company shall
give each Securityholder prompt written notice of any material change thereafter
in the terms or timing of such Liquidity Event. The Securityholder(s) holding a
majority of the Senior Preferred Units may elect (the "PUT ELECTION"), subject
to and in accordance with the terms of this SECTION 2, to require all of the
Securityholders to sell, and the Company to purchase from such Securityholders,
all (but not less than all) of the Senior Preferred Units then held by the
Securityholders by delivering written notice of such Put Election (a "PUT
EXERCISE NOTICE") to the Company on or prior to the tenth day after the Company
delivers notice of such proposed Liquidity Event to the Securityholders. Upon
receipt of a Put Exercise Notice, the Securityholders shall be obligated to
sell, and the Company shall be obligated to purchase, all of the Senior
Preferred Units then held by the Securityholders immediately prior to the
consummation of such Liquidity Event. If the proposed Liquidity Event does not
occur, the Put Election relating thereto shall be deemed null and void.
(b) For any Put Election, the purchase price for each Senior
Preferred Unit will be the SUM of the Senior Preferred Unreturned Capital (as
defined in the LLC Agreement) and the Senior Preferred Unpaid Yield (as defined
in the LLC Agreement), in each case as of the close of business on the business
day immediately preceding the consummation of the Liquidity Event. The Company
will pay for the Senior Preferred Units to be purchased by it from each
Securityholder pursuant to the Put Election by first offsetting amounts
outstanding under any bona fide debts owed by such Securityholder or any of its
Affiliates to the Company and will pay the remainder of the purchase price by
(i) a check or wire transfer of immediately available funds or (ii) if such
purchase is being made prior to the date that is thirty months after the date
hereof, at the option of the Company, the issuance to such Securityholder of an
unsecured subordinated promissory note having an aggregate principal amount
equal to the purchase price, bearing interest at a rate equal to 8% per annum
(payable quarterly in cash), and having a maturity date no later than the third
anniversary of the date of the applicable Liquidity Event; PROVIDED that, in the
event that the issuance by the Company of the foregoing described promissory
note would create adverse tax consequences for the Company or its members, the
Company may in lieu thereof cause one or more of its Subsidiaries to issue such
promissory note, together with unsecured subordinated guaranties in respect of
such promissory note from each of the Company's other domestic Subsidiaries.
Notwithstanding the foreoing, in the event any such purchase is being made upon
consummation of an Approved Sale pursuant to which all or any portion of the
consideration to be received by the Company's other equityholders in connection
therewith consists of Liquid Securities (the percentage represented by such
portion of the total consideration to be received is referred to herein as the
"LIQUID SECURITIES PERCENTAGE"), the Company may pay the portion of the required
purchase price for such Senior Preferred Units that is equal to the Liquid
Securities Percentage by delivery of Liquid Securities having a value
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(using the value ascribed to such Liquid Securities in such Approved Sale) equal
to the Liquid Securities Percentage of such required purchase price. The Company
will be entitled to receive customary representations and warranties from the
Securityholders regarding such sale and to require that all signatures be
certified.
(c) Notwithstanding anything herein to the contrary, all
repurchases of Senior Preferred Units pursuant to any Put Election shall be
subject to applicable restrictions contained in the Delaware Limited Liability
Company Act, the Delaware General Corporation Law, such other applicable
corporate or limited liability company laws, applicable federal and state
securities laws, and the Company's and its Subsidiaries' debt financing
agreements. If any such restrictions prohibit (i) the repurchase of Senior
Preferred Units hereunder which the Company is otherwise required to make or
(ii) dividends, distributions or other transfers of funds from one or more
Subsidiaries to the Company to enable such repurchase, then the Company shall
make such repurchase as soon as it is permitted to make such repurchase (and
receive the necessary funds from its Subsidiaries) under such restrictions.
3. SALE OF THE COMPANY.
(a) If the holders of the Required Interest (as such term is
defined in the LLC Agreement) approve a Sale of the Company to a Person that is
not an Affiliate of GTCR in a bona fide arms-length transaction (an "APPROVED
SALE") and a Put Exercise Notice has not been delivered to the Company in
connection therewith, each holder of Securityholder Securities shall vote for,
consent to and raise no objections against such Approved Sale. If the Approved
Sale is structured as a (i) merger or consolidation, each holder of
Securityholder Securities shall waive any dissenters' rights, appraisal rights
or similar rights in connection with such merger or consolidation or (ii) sale
of Units, each holder of Securityholder Securities shall agree to sell all of
his, her or its Securityholder Securities or rights to acquire Securityholder
Securities on the terms and conditions approved by the Board and the holders of
the Required Interest. Each holder of Securityholder Securities shall take all
necessary or desirable actions in connection with the consummation of the
Approved Sale as reasonably requested by the Company.
(b) The obligations under this Section 3 of the holders of
Securityholder Securities with respect to an Approved Sale of the Company are
subject to the condition that each Securityholder shall receive in exchange for
the Securityholder Securities held by such Securityholder the same portion of
the aggregate consideration from such sale or exchange that such Securityholder
would have received if such aggregate consideration had been distributed by the
Company pursuant to the terms of Section 4.1 of the LLC Agreement.
(c) If either the Company or the holders of any class of
Securityholder Securities enter into a negotiation or transaction for which Rule
506 (or any similar rule then in effect) promulgated by the Securities and
Exchange Commission may be available with respect to such negotiation or
transaction (including a merger, consolidation or other reorganization), the
holders of Securityholder Securities (other than those qualifying as "accredited
investors" under such Rule) will, at the request of the Company, appoint a
purchaser representative (as such term is defined in Rule 501) reasonably
acceptable to the Company. If any holder of Securityholder Securities appoints a
purchaser representative designated by the Company, the Company will pay the
fees of such purchaser representative, but if any holder of Securityholder
Securities
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declines to appoint the purchaser representative designated by the Company such
holder will, if required, appoint another purchaser representative, and such
holder will be responsible for the fees of the purchaser representative so
appointed.
4. INCORPORATION OF THE COMPANY; PUBLIC OFFERING. In the event that the
Board or GTCR approves the incorporation of the Company or a recapitalization,
reorganization or exchange involving the exchange of equity securities of the
Company or its Subsidiaries into securities that the Board and GTCR find
acceptable, whether to facilitate an initial Public Offering or for other
reasons that the Board or GTCR deem in the best interest of the Company
(including, without limitation a reorganization of the Company pursuant to the
terms of Section 15.7 of the LLC Agreement) (a "REORGANIZATION"), the holders of
Securityholder Securities shall take all necessary or desirable actions
reasonably requested by the Board or GTCR in connection with the consummation of
such Reorganization, including, without limitation, consenting to, voting for
and waiving any dissenters rights, appraisal rights or similar rights and
participating in any exchange or other transaction required in connection with
such Reorganization; PROVIDED that each holder of a class of Units shall receive
a security having, in the aggregate, substantially the same rights, benefits,
privileges and value as the Units previously held (other than differences based
upon differences in the amount of yield accrued on such Units since their
respective dates of issuance). In the event that the Board or GTCR approves an
initial Public Offering, the holders of Securityholder Securities shall take all
necessary or desirable actions reasonably requested by the Board or GTCR in
connection with the consummation of such Public Offering, including, without
limitation, compliance with the requirements of all laws and regulatory bodies
that are applicable or that have jurisdiction over such Public Offering;
PROVIDED that all expenses reasonably incurred by such holders in taking such
actions shall be the responsibility of the Company.
5. HOLDBACK AGREEMENT. To the extent not inconsistent with applicable
law, each holder of Securityholder Securities shall not effect any public sale
or distribution (including sales pursuant to Rule 144) of equity securities of
the Company, or any securities, options, or rights convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and the 180-day period beginning on the effective date of any initial Public
Offering or other underwritten registration (except as part of such underwritten
registration), unless the underwriters managing the registered Public Offering
otherwise agree.
6. LEGEND. Each certificate evidencing Securityholder Securities and each
certificate issued in exchange for or upon the Transfer of any Securityholder
Securities (if such securities remain Securityholder Securities as defined
herein after such Transfer) shall be stamped or otherwise imprinted with a
legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO A SENIOR PREFERRED INVESTOR RIGHTS AGREEMENT DATED AS OF
MARCH 5, 2004 AMONG THE ISSUER OF SUCH SECURITIES (THE
"COMPANY") AND CERTAIN OF THE COMPANY'S SECURITYHOLDERS. A
COPY OF SUCH SENIOR PREFERRED INVESTOR RIGHTS AGREEMENT WILL
BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER
HEREOF UPON WRITTEN REQUEST."
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The Company shall imprint such legend on certificates evidencing Securityholder
Securities outstanding prior to the date hereof. The legend set forth above
shall be removed from the certificates evidencing any securities which cease to
be Securityholder Securities.
7. REPORTING REQUIREMENTS. The Company shall deliver each of the
following to each Securityholder who holds at least 25% of the Senior Preferred
Units issued to the Initial Securityholders pursuant to the Stock Purchase
Agreement :
(a) as soon as available but in any event within 30 days after the
end of each monthly accounting period in each fiscal year, a statement of SNS
Gross Sales (as defined in the LLC Agreement) for such monthly period; and
(b) within 120 days after the end of each fiscal year, consolidated
statements of income and cash flows of the Company and its Subsidiaries for such
fiscal year and a consolidated balance sheet of the Company and its Subsidiaries
as of the end of such fiscal year, all prepared in accordance with United States
generally accepted accounting principles, consistently applied and accompanied
by an opinion of an independent accounting firm of recognized national standing.
8. DEFINITIONS.
"AFFILIATE" means, (i) with respect to any Person, any Person that
controls, is controlled by or is under common control with such Person or an
Affiliate of such Person.
"BOARD" means the Board of Managers established pursuant to Section 5.2 of
the LLC Agreement.
"FAMILY GROUP" means a Person's spouse and descendants (whether natural or
adopted), and any trust, family limited partnership, limited liability company
or other entity wholly owned, directly or indirectly, by such Person or such
Person's spouse and/or descendants that is and remains solely for the benefit of
such Person and/or such Person's spouse and/or descendants and any retirement
plan for such Person.
"LIQUID SECURITIES" means securities which (i) are listed or quoted on a
national securities exchange, on NASDAQ (or any successors thereto), on the
NASDAQ small cap market (or any successors thereto), or quoted on any United
States national automated inter-dealer quotation system, and (ii) are not
subject to any restrictions on Transfer (other than such restrictions arising
solely as a result of the status or nature of the holder of such securities)
that would be reasonably expected to prevent, hinder or materially delay the
immediate sale of such securities.
"LIQUIDITY EVENT" means (i) an Approved Sale or (ii) any transfer or series
of transfers for value (whether by means of sale, merger, reorganization,
consolidation, recapitalization or otherwise) by GTCR and/or its Affiliates of
25% or more of their aggregate LLC Interest (as defined in the LLC Agreement)
measured as of the date hereof or, if greater, as of the closing date of the
transactions contemplated by that certain Agreement of Merger, dated as of
February 10, 2004, by and among Prestige Acquisition Holdings, LLC, Prestige
MergerSub, Inc, and Bonita Bay Holdings, Inc.; PROVIDED, HOWEVER, the following
transfers shall be disregarded for purposes of this clause (ii): (A) any
Transfer of all or any portion of an LLC Interest to or among
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any Affiliate of GTCR, (B) any Transfer of all or any portion of an LLC Interest
to the LLC, any successor of the LLC or any of their respective Affiliates
pursuant to an exchange or similar reorganization transaction (including
pursuant to Section 15.7 of the LLC Agreement) for consideration other than
cash, and (C) any Transfer to the LLC, any successor of the LLC or any of their
respective Affiliates for cash or other consideration pursuant to Section 4.1(b)
of the LLC Agreement in an amount not to exceed the GTCR Threshold (as defined
therein).
"LLC AGREEMENT" means the Second Amended and Restated Limited Liability
Company Agreement of Medtech/Denorex, LLC, dated as of the date hereof (as
amended or otherwise modified from time to time in accordance with the terms
thereof), among the parties from time to time party thereto.
"PERSON" means an individual, a partnership, a limited liability company, a
corporation, an association, a joint stock company, a trust, a joint venture, an
unincorporated organization, an investment fund, any other business entity and a
governmental entity or any department, agency or political subdivision thereof.
"PUBLIC OFFERING" means the sale in an underwritten public offering
registered under the Securities Act of any equity securities of the Company (or
any successor thereto) approved by the Board.
"PUBLIC SALE" means any sale of Securityholder Securities (i) to the public
pursuant to an offering registered under the Securities Act or (ii) to the
public through a broker, dealer or market maker pursuant to the provisions of
Rule 144 (other than Rule 144(k) prior to a Public Offering) adopted under the
Securities Act.
"SALE OF THE COMPANY" means any transaction or series of transactions
pursuant to or as a consequence of which any Person or group of related Persons
(other than GTCR and its Affiliates) in the aggregate acquire(s) (i) equity
securities of the Company possessing the voting power (other than voting rights
accruing only in the event of a default, breach or event of noncompliance) to
elect a majority of the Company's Board (whether by merger, liquidation,
consolidation, reorganization, combination, sale or transfer of the Company's
equity securities, securityholder or voting agreement, proxy, power of attorney
or otherwise) or (ii) all or substantially all of the Company's assets
determined on a consolidated basis; provided that the term "Sale of the Company"
shall not include a Public Offering.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time.
"SECURITYHOLDER SECURITIES" means (i) any of the Company's Senior Preferred
Units purchased or otherwise acquired by any Securityholder, and (ii) any
securities of the Company or any successor or Affiliate of the Company issued or
issuable directly or indirectly with respect to the Senior Preferred Units
referred to in clause (i) above upon conversion thereof or by way of unit
dividend or unit split or in connection with a combination of units,
recapitalization, merger, consolidation or other reorganization. As to any
particular securities constituting Securityholder Securities, such
Securityholder Securities will cease to be Securityholder Securities when they
have been (x) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them or (y) sold to the
public through a broker, dealer or
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market maker pursuant to Rule 144 (or any similar provision then in force) under
the Securities Act.
"SUBSIDIARY" means, with respect to any Person, any corporation, limited
liability company, partnership, association, or business entity of which (i) if
a corporation, a majority of the total voting power of shares of stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers, or trustees thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person or a combination thereof, or (ii) if a limited liability company,
partnership, association, or other business entity (other than a corporation), a
majority of partnership or other similar ownership interest thereof is at the
time owned or controlled, directly or indirectly, by that Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association, or other business entity
(other than a corporation) if such Person or Persons shall be allocated a
majority of limited liability company, partnership, association, or other
business entity gains or losses or shall be or control any managing director or
general partner of such limited liability company, partnership, association, or
other business entity. For purposes hereof, references to a "SUBSIDIARY" of any
Person shall be given effect only at such times that such Person has one or more
Subsidiaries, and, unless otherwise indicated, the term "SUBSIDIARY" refers to a
Subsidiary of the Company.
"TRANSFER" means to sell, transfer, assign, pledge or otherwise dispose of
(whether with or without consideration and whether voluntarily or involuntarily
or by operation of law), but explicitly excluding exchanges of one class of
Securityholder Securities to or for another class of Securityholder Securities.
9. TRANSFERS; TRANSFERS IN VIOLATION OF AGREEMENT. Prior to Transferring
any Securityholder Securities to any Person (other than any Transfer to GTCR or
the Company pursuant to Section 2 above and other than any Transfer pursuant to
a Public Sale or an Approved Sale), the Transferring Securityholder shall cause
the prospective transferee to be bound by this Agreement and to execute and
deliver to the Company and the other Securityholders a counterpart of this
Agreement. Any Transfer or attempted Transfer of any Securityholder Securities
in violation of any provision of this Agreement (including, without limitation,
the foregoing sentence) shall be void, and the Company shall not record such
Transfer on its books or treat any purported transferee of such Securityholder
Securities as the owner of such securities for any purpose.
10. REPRESENTATIONS AND WARRANTIES. Each Securityholder represents and
warrants that (i) this Agreement has been duly authorized, executed and
delivered by such Securityholder and constitutes the valid and binding
obligation of such Securityholder, enforceable in accordance with its terms and
(ii) such Securityholder has not granted and is not a party to any proxy, voting
trust or other agreement that is inconsistent with, conflicts with or violates
any provision of this Agreement. No holder of Securityholder Securities shall
grant any proxy or become a party to any voting trust or other agreement that is
inconsistent with, conflicts with or violates any provision of this Agreement.
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11. AMENDMENT AND WAIVER. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Securityholders unless such modification,
amendment or waiver is approved in writing by the Company and the holder(s) of a
majority of the Securityholder Securities then outstanding. The failure of any
party to enforce any of the provisions of this Agreement shall in no way be
construed as a waiver of such provisions and shall not affect the right of such
party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
12. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
13. ENTIRE AGREEMENT. This Agreement, those documents expressly referred
to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
14. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Securityholders and any
subsequent holders of Securityholder Securities and the respective successors
and assigns of each of them, so long as they hold Securityholder Securities.
15. COUNTERPARTS. This Agreement may be executed in separate counterparts
(including by means of telecopied signature pages) each of which shall be an
original and all of which taken together shall constitute one and the same
agreement.
16. REMEDIES. The Company and each Securityholder shall be entitled to
enforce their rights under this Agreement specifically to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights existing in their favor. The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that the Company and each Securityholder may in
its sole discretion apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive relief (without posting
a bond or other security) in order to enforce or prevent any violation of the
provisions of this Agreement.
17. NOTICES. Any notice provided for in this Agreement shall be in writing
and shall be either personally delivered, telecopied (with hard copy sent to the
recipient by reputable overnight courier service (charges prepaid) that same
day) if telecopied before 5:00 p.m. Chicago, Illinois time on a business day,
and otherwise on the next business day, or mailed by registered or certified
mail (postage prepaid) or sent by reputable overnight courier service (charges
prepaid) to the Company at the address set forth below and to any other
recipient at the address indicated on the schedules hereto and to any Subsequent
Securityholder at such address
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as indicated by the Company's records, or at such address or to the attention of
such other Person as the recipient party has specified by prior written notice
to the sending party. Notices will be deemed to have been given hereunder when
delivered personally, three days after deposit in the U.S. mail and one day
after deposit with a reputable overnight courier service. Such notices, demands
and other communications shall be sent to the Company at the following address:
Medtech/Denorex, LLC
90 North Broadway
Irvington, New York 10533
Attention: Chief Executive Officer
Facsimile: (914) 524-6802
WITH COPIES TO:
GTCR Golder Rauner II, L.L.C.
6100 Sears Tower
Chicago, IL 60606-6402
Attention: David A. Donnini
Vincent J. Hemmer
Facsimile: (312) 382-2201
Kirkland & Ellis LLP
200 E. Randolph Drive
Chicago, IL 60601
Attention: Kevin R. Evanich, P.C.
Christopher J. Greeno
Facsimile: (312) 861-2200
18. GOVERNING LAW. The Delaware Limited Liability Company Act shall govern
all issues concerning the relative rights of the Company and the holders of its
securities. All other questions concerning the construction, validity and
interpretation of this Agreement and the exhibits and schedules hereto shall be
governed by and construed in accordance with the internal laws of the State of
Delaware, without giving effect to any choice of law or other conflict of law
provision or rule (whether of the State of Delaware or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Delaware.
19. MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION
WITH COMPLEX TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ALL RIGHTS TO TRIAL BY
JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN
OR AMONG ANY OF THE PARTIES HERETO, WHETHER ARISING IN CONTRACT, TORT, OR
OTHERWISE, ARISING OUT OF,
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CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT AND/OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
20. DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Senior Preferred
Investor Rights Agreement on the day and year first above written.
MEDTECH/DENOREX, LLC
By: /S/ VINCENT J. HEMMER
------------------------------------
Name: Vincent J. Hemmer
----------------------------------
Title: President
---------------------------------
GTCR FUND VIII, L.P.
By: GTCR Partners VIII, L.P.
Its: General Partner
By: GTCR Golder Rauner II, L.L.C.
Its: General Partner
By: /S/ DAVID A. DONNINI
--------------------------------
Name: David A. Donnini
Its: Principal
TSG3 L.P.,
By: its General Partner,
TSG3 Management LLC
By: /S/ JAMES L. O'HARA
------------------------------------
Name: James L. O'Hara
Title: Managing Director
/S/ J. GARY SHANSBY
---------------------------------------
J. Gary Shansby
/S/ CHARLES H. ESSERMAN
---------------------------------------
Charles H. Esserman
/S/ MICHAEL L. MAUZE
---------------------------------------
Michael L. Mauze
/S/ JAMES L. O'HARA
---------------------------------------
James L. O'Hara
[MEDTECH/DENOREX, LLC: SIGNATURE PAGE TO SENIOR PREFERRED INVESTOR RIGHTS
AGREEMENT]
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SCHEDULE OF SECURITYHOLDERS
TSG3 L.P. *
600 Montgomery Street Suite 2900
San Francisco, CA 94111
J. Gary Shansby *
c/o TSG3, LP
600 Montgomery Street Suite 2900
San Francisco, CA 94111
Charles H. Esserman *
c/o TSG3, LP
600 Montgomery Street Suite 2900
San Francisco, CA 94111
Michael L. Mauze *
c/o TSG3, LP
600 Montgomery Street Suite 2900
San Francisco, CA 94111
James L. O'Hara *
c/o TSG3, LP
600 Montgomery Street Suite 2900
San Francisco, CA 94111
* with a copy to:
Ropes & Gray LLP
One International Place
Boston, MA 02110
Telecopier: 617-951-7050
Attention: Paul F. Van Houten, Esq.