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Exhibit 10.9
RIGHT OF LAST REFUSAL
This Agreement, entered into this 1st day of July, 1994, among
HOUBIGANT, INC., a Delaware corporation, having a principal place of business at
0000 Xxxxxxxx Xxxx Xxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 (the "Grantor"),
XXXXX XXXXXXXXX, with an address at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, XXXXXXX XXXXXXX, with an address at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, but excluding the Grantor's institutional creditors that may hold or
retain stock in the Grantor under Grantor's anticipated plan of reorganization
and any stock held by Grantor as treasury stock (Messrs. Massironi and Xxxxxxx
and other stockholders, subject to the exclusion noted above, are hereinafter
individually referred to as the "Stockholder" and collectively referred to as
the "Stockholders"), and NEW FRAGRANCE LICENSE CORP., a Delaware corporation,
with an address located c/x Xxxx Xxxx & Company, Three Pickwick Plaza,
Greenwich, Connecticut 06830 (the "Licensee"). Capitalized terms used herein and
not otherwise defined herein shall have the respective meanings ascribed to them
in the License Agreement (as defined below).
WITNESSETH
WHEREAS, it is presently anticipated that the Stockholders, together
with the Grantor's institutional creditors, will own all or substantially all of
the issued and outstanding shares of the Grantor (the "Stock") following
confirmation of Grantor's anticipated plan of reorganization;
WHEREAS, the Grantor and Licensee have heretofore entered into a
License Agreement dated May __, 1994 (executed on or about May 2, 1994), as
modified on May 12, 1994, June 1, 1994 and July 1, 1994 (the "License
Agreement"); and
WHEREAS, as a condition to the License Agreement, and in accordance
with paragraphs 38 and 40 of the License Agreement, the Grantor and the Licensee
require that the Stockholders and Grantor deliver this Agreement to the
Licensee;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Stockholders hereby agree as
follows:
1. Provided that (i) each of the Stockholders owns Stock of the Grantor
and (ii) the Grantor owns all of the assets (i.e., trademarks, tradenames,
know-how and related assets) which are the subject of the License Agreement
(collectively the "Assets"), as is presently anticipated following confirmation
of the Grantor's anticipated plan of reorganization, each of the Stockholders
and the Grantor hereby agrees he or it will not sell, assign, dispose of,
pledge, hypothecate or otherwise transfer (collectively, a "Sale"), other than
(a) as part of a plan of reorganization confirmed and approved by the bankruptcy
court having jurisdiction over the Grantor's chapter 11 estate, or (b) as part
of an initial public offering of equity
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securities of the Grantor or a sale or transfer among related/affiliated
entities, any Stock of the Grantor or the Assets, except in accordance with the
following procedures:
(a) Prior to the Sale by a (i) Stockholder of all or a portion of his
Stock or (ii) Grantor of all or a portion of the Assets, to a third party, such
Stockholder or Grantor, as the case may be, will provide the Licensee advanced
written notice thereof (the "Sale Notice"), which shall constitute an
irrevocable offer for a period of twenty (20) days after delivery thereof,
setting forth (i) the number of shares of Stock that the Stockholder proposes to
sell or the Assets Grantor proposes to sell (the "Offer"), (ii) the proposed
transferee and (iii) the price at which the Stockholder or Grantor proposes to
make the Sale to such transferee (the "Offer Price"), and will offer to sell the
Stock or the Assets, as the case may be, to the Licensee at the Offer Price and
on the other terms and conditions contained in the Sale Notice. Within twenty
(20) days after delivery of the Sale Notice, the Licensee must either
(i) Accept the Offer; or
(ii) Inform the Stockholder or Grantor in writing that the
Licensee declines the Offer.
(b) Sale of Stock or of the Assets, as the case may be, under the
above-referenced terms shall be made at the offices of the Grantor in the U.S.
on a mutually satisfactory business day at least twenty (20) but not more than
forty-five (45) days after delivery of the Sale Notice. Delivery of certificates
or other instruments evidencing such Stock, duly endorsed for transfer to the
Licensee and free and clear of all claims, liens and encumbrances, shall be made
on such date against payment by the Licensee of the Offer Price therefor. The
Grantor shall affix or cause to be affixed, legends upon the certificates or
other instruments evidencing the Stock referring to this Agreement and the terms
and conditions hereof.
(c) If the Licensee does not accept the Offer, the Stockholder or
Grantor may sell the Stock or the Assets so offered for sale at a price not less
than the Offer Price, and on terms not more favorable to the purchaser thereof
than the terms stated in the original Sale Notice, at any time within 120 days
after the expiration of the offer required by paragraph 1(a) above. In the event
that all of the Stock or Assets are not sold by the Stockholder or Grantor
during such 120-day period, the right of the Stockholders or Grantor to sell
such unsold Stock or Assets shall expire and the obligations of this Section 1
shall be reinstated.
(d) Notwithstanding any of the foregoing, the Stockholders shall be
permitted to make transfers of their Stock, in their sole discretion, between
and among members of their immediate family, or a trust established for the
benefit of a member of a Stockholder's immediate family. Any subsequent transfer
of said Stock outside of the Stockholder's immediate family, or a trust
established for the benefit of a
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member of a Stockholder's immediate family, shall be subject to Licensee's
rights under this Agreement.
2. In the event Grantor shall undertake to sell to a third party
(subject to the terms and provisions of this Agreement) those assets which
comprise the terms of the Agreement, Grantor shall provide Licensee with
advanced written notice thereof and the last opportunity to acquire such assets
on such terms and conditions in conformity with the proposed third-party
transaction.
3. Each of the Stockholders and the Grantor shall take all appropriate
action as may be necessary or appropriate to effectuate the provisions and
intent of this Agreement.
4. The Grantor covenants and agrees that it will not transfer or
reflect on its books and records, or otherwise directly or indirectly, recognize
any transactions which are in conflict with, or in violation of, the terms and
conditions of this Agreement.
The Stockholders and the Grantor acknowledge that the undertakings of
the Stockholders and Grantor pursuant to this Agreement constitute material
inducements to the Licensee to enter into the Licensee Agreement and consummate
the transactions contemplated thereunder.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed and delivered as of the date first set forth above.
/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx, in his capacity
as an anticipated Stockholder
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx Xxxxxxx, in his capacity
as an anticipated Stockholder
HOUBIGANT, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx, President
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