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EXHIBIT 10.128
COMMON STOCK REGISTRATION RIGHTS AGREEMENT
DATED AS OF SEPTEMBER 27, 1996
BETWEEN
RENAISSANCE COSMETICS, INC.
AND
BASTION CAPITAL FUND, L.P.
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TABLE OF CONTENTS
Page
1. Definitions.................................................................................... 1
2. Registration Rights............................................................................ 5
3. Transfers of Common Stock...................................................................... 11
4. Registration Procedures........................................................................ 11
5. Indemnification and Contribution............................................................... 14
6. Miscellaneous.................................................................................. 17
(a) No Inconsistent Agreements............................................................ 17
(b) Amendments and Waivers................................................................ 18
(c) Notices............................................................................... 18
(d) Successors and Assigns................................................................ 19
(e) Rules 144 and 144A.................................................................... 19
(f) Counterparts.......................................................................... 19
(g) Headings.............................................................................. 19
(h) GOVERNING LAW......................................................................... 19
(i) Severability.......................................................................... 20
(j) Entire Agreement...................................................................... 20
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THIS COMMON STOCK REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is made and entered into as of September __, 1996, between
Renaissance Cosmetics, Inc., a Delaware corporation (the "Company"), and Bastion
Capital Fund, L.P., a Delaware limited partnership (the "Purchaser").
This Agreement is made pursuant to the Securities Purchase
Agreement, dated as of September __, 1996, between the Company and the Purchaser
(the "Purchase Agreement"), relating to the sale by the Company to the Purchaser
of 51,959 share of Common Stock, par value $0.01 per share (the "Common Stock").
In order to induce the Purchaser to enter into the Purchase Agreement, the
Company has agreed to provide to the Purchaser and its direct and indirect
transferees (the "Holders"), among other things, the registration rights for the
Common Stock set forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Business Day" shall mean a day that is not a Legal Holiday.
"Capital Stock" shall mean, with respect to any Person, any
and all shares or other equivalents (however designated) of capital
stock, partnership interests or any other participation, right or other
interest in the nature of an equity interest in such Person or any
option, warrant or other security convertible into any of the
foregoing.
"Closing Date" shall mean the date of the Closing referred to
in the Purchase Agreement.
"Common Stock" shall have the meaning set forth in the second
paragraph of the preamble of this Agreement.
"Company" shall have the meaning set forth in the preamble and
shall also include the Company's successors.
"Demand Registration" shall have the meaning set forth in
Section 2.1.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"Fair Market Value" shall mean the value of any securities as
determined (without any discount for lack of liquidity, the amount of
Common Stock proposed to be sold or the fact that the shares of Common
Stock held by any
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Holder of such security may represent a minority interest in a private
company) by CIBC Wood Gundy Securities Corp. (or any successor) or any
other nationally recognized investment banking firm selected by the
Company for the determination of such value.
"Holder" shall mean the Purchaser, for so long as the
Purchaser owns any Common Stock, and each of its successors, assigns
and direct and indirect transferees who become registered owners of
Common Stock.
"Included Shares" shall have the meaning set forth in Section
2.1(a).
"indemnified party" shall have the meaning set forth in
Section 5(c).
"indemnifying party" shall have the meaning set forth in
Section 5(c).
"Legal Holiday" shall mean a Saturday, a Sunday or a day on
which banking institutions in New York, New York are required by law,
regulation or executive order to remain closed. If a payment date is a
Legal Holiday, payment may be made on the next succeeding day that is
not a Legal Holiday.
"Old Warrant Agreement" means the Warrant Agreement dated as
of August 18, 1994, between the Company and American Bank National
Association, as Warrant Agent.
"Person" shall mean an individual, corporation, partnership,
joint venture, association, joint stock company, trust, unincorporated
organization, or other legal entity.
"Piggy-Back Registration" shall have the meaning set forth in
Section 2.2.
"Prospectus" means a prospectus which meets the requirements
of Section 10 of the Securities Act.
"Public Equity Offering" shall mean a public offering by the
Company of shares of its common stock on a registration statement filed
under the Securities Act (however designated and whether voting or
non-voting) (other than a registration statement filed on Form S-4 or
S-8 or similar form).
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Purchase Election" shall have the meaning set forth in
Section 2.1(b).
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"Purchase Offer" shall have the meaning set forth in Section
2.1(b).
"Purchase Offer Payment Date" shall have the meaning set forth
in Section 2.1(b).
"Purchaser" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the shares of Common Stock
acquired by the Purchaser pursuant to the Purchase Agreement. As to any
particular Registrable Securities, such securities shall cease to be
Registrable Securities when (i) a Registration Statement with respect
to such securities shall have been declared effective under the
Securities Act and such securities shall have been disposed of pursuant
to such Registration Statement, (ii) such securities have been sold to
the public pursuant to Rule 144 (or any similar provision then in
force, but not Rule 144A) under the Securities Act or, in the opinion
of counsel to the Company, such securities may be sold under Rule
144(k) under the Securities Act, (iii) such securities shall have been
otherwise transferred by such Holder and new certificates for such
securities not bearing a legend restricting further transfer shall have
been delivered by the Company or its transfer agent and subsequent
disposition of such securities shall not require registration or
qualification under the Securities Act or any similar state law then in
force or (iv) such securities shall have ceased to be outstanding.
"Registration Expenses" shall mean all expenses incident to
the Company's performance of or compliance with this Agreement,
including, without limitation, all SEC and stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees
and expenses, fees and expenses of compliance with securities or blue
sky laws (including, without limitation, reasonable fees and
disbursements of counsel for the underwriters in connection with blue
sky qualifications of the Registrable Securities), rating agency fees,
printing expenses, messenger, telephone and delivery expenses, fees and
disbursements of counsel for the Company and all independent certified
public accountants (but not including any underwriting discounts or
commissions or transfer taxes, if any, attributable to the sale of
Registrable Securities by Holders of such Registrable Securities or
fees and expenses of counsel to the Selling Holders).
"Registration Statement" shall mean any registration statement
of the Company which covers any of the shares of Common Stock pursuant
to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such Registration Statement, including
post-effective amendments,
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all exhibits and all material incorporated by reference or deemed to be
incorporated by reference in such Registration Statement.
"Requisite Shares" shall mean a number of Registrable
Securities equal to not less than 25% of the Registrable Securities
held in the aggregate by all Holders.
"Rule 144" shall mean Rule 144 under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other
than Rule 144A) or regulation hereafter adopted by the SEC providing
for offers and sales of securities made in compliance therewith
resulting in offers and sales by subsequent holders that are not
affiliates of an issuer of such securities being free of the
registration and prospectus delivery requirements of the Securities
Act.
"Rule 144A" shall mean Rule 144A under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other
than Rule 144) or regulation hereafter adopted by the SEC providing for
offers and sales of securities made in compliance therewith resulting
in offers and sales by subsequent holders that are not affiliates of an
issuer of such securities being free of the registration and prospectus
delivery requirements of the Securities Act.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Selling Holder" shall mean a Holder who is selling Common
Stock in accordance with the provisions of Section 2.1 or 2.2 hereof.
"Stockholders Agreement" means the Stockholders Agreement
dated August 18, 1994 between the Company and each of the individuals
or entities which are parties thereto.
"Triggering Event" shall have the meaning set forth in Section
2.1.
"Withdrawal Election" shall have the meaning set forth in
Section 2.3.
2. Registration Rights.
2.1 Demand Registration.
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(a) Request for Registration. At any time and from time to
time on or after the fifth anniversary of the Closing Date (the "Triggering
Event"), Holders owning, individually or in the aggregate, at least the
Requisite Shares may make a written request for registration under the
Securities Act of their Registrable Securities (a "Demand Registration"). Any
such request will specify the number of Registrable Securities proposed to be
sold (which shall not be less than the Requisite Shares) and will also specify
the intended method of disposition thereof. Upon a demand, the Company will
prepare, file and use its best efforts to cause to be effective within 180 days
of such demand a Registration Statement in respect of all the Registrable
Securities. The Company shall give written notice of such registration request
within 10 days after the receipt thereof to all other Holders. Within 20 days
after receipt of such notice by any Holder, such Holder may request in writing
that Registrable Securities be included in such registration and the Company
shall include in the Demand Registration the Registrable Securities of any such
Selling Holder requested to be so included (the "Included Shares"). Each such
request by such other Selling Holders shall specify the number of Included
Shares proposed to be sold and the intended method of disposition thereof.
Subject to Section 2.1(c), in no event shall the Company be required to register
Registrable Securities pursuant to this Section 2.1 more than a maximum of two
separate occasions.
(b) Repurchase Election. (i) Notwithstanding the foregoing
provisions of Section 2.1(a), the Company shall not be obligated to effect a
Demand Registration if the Company elects to make an offer to repurchase (a
"Purchase Offer") all of the Included Shares (a "Purchase Election") by mailing
notice of such Purchase Offer to all Holders of Included Shares on a date (the
"Purchase Election Date") not more than 60 days after the receipt of any request
for a Demand Registration and indicating in such Purchase Offer that the
Purchase Election will be consummated on a Business Day (the "Purchase Offer
Payment Date") not more than 60 days after the Purchase Election Date at a price
equal to the Fair Market Value of each share of Common Stock owned by the Holder
or, if later, 10 days after the determination of the Fair Market Value of the
Common Stock.
(ii) Notice of a Purchase Offer shall be mailed by the Company
(or caused to be mailed by the Company), not less than 30 days nor more than 40
days before the Purchase Offer Payment Date to each Holder of Included Shares at
its last registered address. The Purchase Offer shall remain open from the time
of mailing for at least 20 Business Days and until 5:00 p.m., New York City
time, on the Business Day next preceding the Purchase Offer Payment Date. The
notice, which shall govern the terms of the Purchase Offer, shall include such
disclosures as are required by law and shall state:
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(1) that the Purchase Offer is being made pursuant to this
Section 2.1(b) and that all Included Shares tendered for repurchase
will be accepted for payment;
(2) the purchase price per share of Common Stock calculated as
set forth above and the Purchase Offer Payment Date;
(3) that any Included Shares accepted for payment pursuant to
the Purchase Offer shall cease to be outstanding after the Purchase
Offer Payment Date unless the Company defaults in making payment
therefor of the purchase price;
(4) that Holders electing to have Included Shares purchased
pursuant to a Purchase Offer will be required to surrender such share
of Common Stock, together with a completed letter of transmittal, to
the Company (or its agent as designated by the Company in such notice)
at the address specified in the notice no later than 5:00 p.m. New York
City time on the Business Day prior to the Purchase Offer Payment Date;
(5) that Holders will be entitled to withdraw their election
if the Company (or such designated agent) receives, not later than 5:00
p.m. New York City time on the Business Day prior to the Purchase Offer
Payment Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the number of shares of Common
Stock delivered for purchase and a statement that such Holder is
withdrawing its election to have such shares of Common Stock purchased
and promptly thereafter the Company (or such designated agent) shall
redeliver the withdrawn shares of Common Stock to the Holder;
(6) that a Holder electing not to tender such Holder's
Included Shares for purchase pursuant to such Purchase Offer by 5:00
p.m. New York City time on the Business Day prior to the Purchase Offer
Payment Date will have no continuing right to require the Company to
repurchase such Holder's Included Shares; and
(7) that Holders whose shares of Common Stock are tendered for
purchase in part only will be issued new certificates representing the
number of the unpurchased shares of Common Stock surrendered.
On the Purchase Offer Payment Date, the Company shall (i)
accept for payment Included Shares or portions thereof tendered pursuant to the
Purchase Offer,
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(ii) promptly deliver to Holders of shares of Common Stock so accepted payment
of the purchase price therefor and (iii) issue and mail or deliver to such
Holders new certificates representing a number of shares of Common Stock equal
to the unpurchased portion of the shares of Common Stock surrendered. Upon
payment for all Included Shares tendered pursuant to a Purchase Offer the
Company shall be deemed to have effected the Demand Registration (including
without limitation for purposes of the last sentence of Section 2.1(a)).
The Company shall comply, to the extent applicable, with the
requirements of Sections 13 and 14 of the Exchange Act, and any other securities
laws or regulations in connection with the repurchase of Registrable Securities
pursuant to a Purchase Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Section
2.1(b), the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 2.1(b) by virtue thereof.
(c) Effective Registration. A registration will not be deemed
to have been effected as a Demand Registration unless it has been declared
effective by the SEC and the Company has complied in all material respects with
its obligations under this Agreement with respect thereto; provided that if,
after it has become effective, the offering of Registrable Securities pursuant
to such registration is or becomes the subject of any stop order, injunction or
other order or requirement of the SEC or any other governmental or
administrative agency, or if any court prevents or otherwise limits the sale of
Registrable Securities pursuant to the registration (for any reason other than
the act or omissions of the Selling Holders), such registration will be deemed
not to have been effected. If (i) a registration requested pursuant to this
Section 2.1 is deemed not to have been effected or (ii) the registration
requested pursuant to this Section 2.1 does not remain effective for a period of
at least 90 days beyond the effective date thereof or until the earlier
consummation of the distribution by the Selling Holders of the Included Shares,
then the Company shall continue to be obligated to effect an additional
registration pursuant to this Section 2.1. The Selling Holders of Registrable
Securities shall be permitted to withdraw all or any part of the Included Shares
from a Demand Registration at any time prior to the effective date of such
Demand Registration. If at any time a Registration Statement is filed pursuant
to a Demand Registration, and subsequently a sufficient number of Included
Shares are withdrawn from the Demand Registration so that such Registration
Statement does not cover at least 25% of the Registrable Securities held by all
Holders, the Selling Holders who have not withdrawn their Included Shares shall
have the opportunity to include an additional number of Registrable Securities
in the Demand Registration so that such Registration Statement covers at least
25% of the Registrable Securities held by all Holders. If an additional number
of Registrable Securities is not so included so that such Registration Statement
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does not cover at least 25% of the Registrable Securities held by all Holders,
the Company may withdraw the Registration Statement. In the event that a
Registration Statement has been filed and the Company withdraws the Registration
Statement solely due to the occurrence of the events specified in the prior two
sentences, such withdrawn Registration Statement will count as a Demand
Registration; otherwise such withdrawn Registration Statement will not count as
a Demand Registration and the Company shall continue to be obligated to effect a
registration pursuant to this Section 2.1.
(d) Priority in Demand Registrations Pursuant to Section 2.1.
If a Demand Registration pursuant to this Section 2.1 involves an underwritten
offering and the managing underwriter advises the Company in writing that, in
its opinion, the number of securities requested to be included in such
registration (including securities of the Company which are not Registrable
Securities) exceeds the number which can be sold in such offering, the Company
will include in such registration only the Registrable Securities requested by
the managing underwriter(s) to be included in such registration. In the event
that the number of Registrable Securities requested to be included in such
registration exceeds the number which, in the opinion of such managing
underwriter, can be sold, the number of such Registrable Securities to be
included in such registration shall be allocated pro rata among all requesting
Holders on the basis of the relative number of shares of Registrable Securities
then held by each such Holder (provided that any shares thereby allocated to any
such Holder that exceed such Holder's request shall be reallocated among the
remaining requesting Holders in like manner). In the event that the number of
Registrable Securities requested to be included in such registration is less
than the number which, in the opinion of the managing underwriter, can be sold,
the Company may include in such registration the securities the Company proposes
to sell up to the number of securities that, in the opinion of the managing
underwriter, can be sold.
(e) Selection of Underwriter. If the Selling Holders so elect,
the offering of such Registrable Securities pursuant to such Demand Registration
shall be in the form of an underwritten offering. The Company shall select one
or more nationally recognized firms of investment bankers, who shall be
reasonably acceptable to the Selling Holders, to act as the managing underwriter
or underwriters in connection with such offering and shall select any additional
investment banker(s) and manager(s) to be used in connection with the offering.
(f) Expenses. The Company will pay all Registration Expenses
in connection with the registrations requested pursuant to Section 2.1(a). Each
Holder shall pay all underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to a registration statement requested pursuant to this
Section 2.1.
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2.2 Piggy-Back Registration. If at any time after the
Company's initial public offering of Common Stock the Company proposes to file a
Registration Statement under the Securities Act with respect to an offering by
the Company for its own account or for the account of any of its respective
securityholders of any class of its common equity securities (other than (i) a
Registration Statement on Form S-4 or S-8 (or any substitute form that may be
adopted by the SEC) or (ii) a Registration Statement filed in connection with an
offer or offering of securities solely to the Company's existing
securityholders), then the Company shall give written notice of such proposed
filing to the Holders of Registrable Securities as soon as practicable (but in
no event less than 20 Business Days before the anticipated filing date), and
such notice shall offer such Holders the opportunity to register such number of
shares of Registrable Securities as each such Holder may request (which request
shall specify the Registrable Securities intended to be disposed of by such
Selling Holder and the intended method of distribution thereof) (a "Piggy-Back
Registration"). The Company shall use its reasonable best efforts to cause the
managing underwriter or underwriters of such proposed underwritten offering to
permit the Registrable Securities requested to be included in a Piggy-Back
Registration to be included on the same terms and conditions as any similar
securities of the Company or any other securityholder included therein and to
permit the sale or other disposition of such Registrable Securities in
accordance with the intended method of distribution thereof except as otherwise
provided in Section 2.3. Any Selling Holder shall have the right to withdraw its
request for inclusion of its Registrable Securities in any Registration
Statement pursuant to this Section 2.2 by giving written notice to the Company
of its request to withdraw no later than 5 Business Days before such
Registration Statement becomes effective. The Company may withdraw a Piggy-Back
Registration at any time prior to the time it becomes effective; provided that
the Company shall give prompt notice thereof to participating Selling Holders.
The Company will pay all Registration Expenses in connection with each
registration of Registrable Securities requested pursuant to this Section 2.2,
and each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to a registration statement effected pursuant to
this Section 2.2.
No registration effected under this Section 2.2, and no
failure to effect a registration under this Section 2.2, shall relieve the
Company of its obligation to effect a registration upon the request of Holders
pursuant to Section 2.1, and no failure to effect a registration under this
Section 2.2 and to complete the sale of shares of Common Stock in connection
therewith shall relieve the Company of any other obligation under this
Agreement.
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2.3 Reduction of Offering.
(a) Piggy-Back Registration. (i) If the managing
underwriter(s) of any underwritten offering described in Section 2.2 have
informed, in writing, the Selling Holders of the Registrable Securities
requesting inclusion in such offering that it is their opinion that the total
number of shares which the Company, the Selling Holders and any other Persons
desiring to participate in such registration intend to include in such offering
is such as to adversely affect the success of such offering, including the price
at which such securities can be sold, then the number of shares to be offered
for the account of the Selling Holders and all such other Persons (other than
the Company) participating in such registration shall be reduced or limited pro
rata in proportion to the respective number of shares requested to be registered
to the extent necessary to reduce the total number of shares requested to be
included in such offering to the number of shares, if any, recommended by such
managing underwriters; provided, however, that if such offering is effected for
the account of any securityholder of the Company other than the Selling Holders,
pursuant to the demand registration rights of any such securityholder, then the
number of shares to be offered for the account of the Selling Holders and all
other Persons (other than the Company) participating in such registration (but
not such securityholders who have exercised their demand registration rights)
shall be reduced or limited pro rata in proportion to the respective number of
shares requested to be registered to the extent necessary to reduce the total
number of shares requested to be included in such offering to the number of
shares, if any, recommended by such managing underwriters.
(ii) If the managing underwriter or underwriters of any
underwritten offering described in Section 2.2 notify the Selling Holders
requesting inclusion of Registrable Securities in such offering, that the kind
of securities that the Selling Holders, the Company and any other Persons
desiring to participate in such registration intend to include in such offering
is such as to adversely affect the success of such offering, (x) the Registrable
Securities to be included in such offering shall be reduced as described in
clause (i) above or (y) if a reduction in the Registrable Securities pursuant to
clause (i) above would, in the judgment of the managing underwriter(s) or
underwriters, be insufficient to substantially eliminate such adverse effect
that inclusion of the Registrable Securities requested to be included would have
on such offering, such Registrable Securities will be excluded from such
offering.
(b) If, as a result of the proration provisions of this
Section 2.3, any Selling Holder shall not be entitled to include all Registrable
Securities in a Piggy-Back Registration that such Selling Holder has requested
to be included, such Selling Holder may elect to withdraw his request to include
Registrable Securities in such registration (a "Withdrawal Election"); provided,
however, that a Withdrawal Election shall be
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irrevocable and, after making a Withdrawal Election, a Selling Holder shall no
longer have any right to include Registrable Securities in the registration as
to which such Withdrawal Election was made.
3. Transfers of Common Stock.
3.1 All shares of Common Stock owned by a Holder at any time
and from time to time outstanding that are Registrable Securities shall be held
subject to the conditions and restrictions set forth in the Stockholders
Agreement as if the holder thereof were a party to the Stockholders Agreement.
4. Registration Procedures. In connection with the obligations
of the Company with respect to any Registration Statement pursuant to Sections
2.1 and 2.2 hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement on
the appropriate form under the Securities Act, which form (i) shall be
selected by the Company and (ii) shall comply as to form in all
material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed
therewith, and the Company shall use its best efforts to cause such
Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
applicable period, cause each Prospectus to be supplemented by any
required prospectus supplement and, as so supplemented, to be filed
pursuant to Rule 424 under the Securities Act;
(c) furnish to each Holder of Registrable Securities and to
each underwriter of an underwritten offering of Registrable Securities,
if any, without charge, as many copies of each Prospectus, including
each preliminary Prospectus, and any amendment or supplement thereto
and such other documents as such Holder or underwriter may reasonably
request, in order to facilitate the public sale or other disposition of
the Registrable Securities;
(d) use its best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue
sky" laws of such jurisdictions as any Holder thereof covered by a
Registration Statement shall reasonably request in writing by the time
the applicable Registration Statement is declared effective by the SEC,
and do any and all other acts and things which may be reasonably
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necessary or advisable to enable such Holder to consummate the
disposition in each such jurisdiction of such Registrable Securities
owned by such Holder; provided, however, that the Company shall not be
required to (i) qualify generally to do business in any jurisdiction
where it is not then so qualified, (ii) take any action that would
subject it to general service of process in any jurisdiction in which
it is not then so subject or (iii) subject itself to taxation in excess
of a nominal dollar amount in any such jurisdiction;
(e) notify each Holder of Registrable Securities promptly and,
if requested by such Holder, confirm such advice in writing (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any
request by the SEC or any state securities authority for amendments and
supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Securities covered
thereby, the representations and warranties of the Company contained in
any underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to the offering cease to be true and
correct in all material respects or if the Company receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation
of any proceeding for such purpose and (v) of the happening of any
event during the period a Registration Statement is effective which
makes any statement made in such Registration Statement or the related
Prospectus untrue in any material respect or which requires the making
of any changes in such Registration Statement or Prospectus in order to
make the statements therein not misleading;
(f) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at
the earliest possible moment;
(g) furnish to each Holder of Registrable Securities, without
charge, at least one conformed copy of each Registration Statement and
any post-effective amendment thereto (with documents incorporated
therein by reference or exhibits thereto);
(h) cooperate with the Selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of
certificates representing
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Registrable Securities to be sold and not bearing any restrictive
legends and registered in such names as the Selling Holders may
reasonably request at least two business days prior to the closing of
any sale of Registrable Securities;
(i) upon the occurrence of any event contemplated by Section
4(e)(v) hereof, use reasonable efforts to prepare a supplement or
post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the Company shall not be required to amend or supplement
a Registration Statement, any related Prospectus or any document
incorporated therein by reference in the event that, and for so long
as, an event occurs and is continuing as a result of which the
Registration Statement, any related Prospectus or any document
incorporated therein by reference as then amended or supplemented
would, in the Company's good faith judgment, contain an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances
under which they are made, not misleading. The Company agrees to notify
each Holder to suspend use of the Prospectus as promptly as practicable
after the occurrence of such an event, and each Holder hereby agrees to
suspend use of the Prospectus until the Company has amended or
supplemented the Prospectus to correct such misstatement or omission.
At such time as such public disclosure is otherwise made or the Company
determines in good faith that such disclosure is not necessary, the
Company agrees promptly to notify each Holder of such determination, to
amend or supplement the Prospectus if necessary to correct any untrue
statement or omission therein and to furnish each Holder such numbers
of copies of the Prospectus as so amended or supplemented as each
Holder may reasonably request;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement, provide copies of
such document to the Holders and make available for discussion of such
document the representatives of the Company as shall be reasonably
requested by the Holders of Registrable Securities;
(k) obtain a CUSIP number for the Common Stock;
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(l) (i) make reasonably available for inspection by a
representative of, and counsel for, any managing underwriter
participating in any disposition pursuant to a Registration Statement,
all relevant financial and other records, pertinent corporate documents
and properties of the Company and (ii) cause the Company's officers,
directors and employees to supply all relevant information reasonably
requested by such representative, counsel or any such managing
underwriter in connection with any such Registration Statement;
(m) take all action necessary so that the shares of Common
Stock will be listed on the principal securities exchanges and markets
within the United States of America (including the NASDAQ National
Market System), if any, on which other shares of Common Stock are then
listed; and
(n) if requested by the Holders in connection with any
Registration Statement, shall use its best efforts to cause (w) counsel
for the Company to deliver an opinion relating to the Registration
Statement and the Common Stock, in customary form, (x) its officers to
execute and deliver all customary documents and certificates requested
by a representative of the Holders or any managing underwriter, as
applicable and (y) its independent public accountants to provide a
comfort letter in customary form.
The Company may, as a condition to such Holder's participation
in any Registration Statement, require each Holder of Registrable Securities to
(i) furnish to the Company such information regarding the Holder and the
proposed distribution by such Holder of such Registrable Securities as the
Company may from time to time reasonably request in writing and (ii) agree in
writing to be bound by this Agreement.
5. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Holder and each person, if any, who controls
such Holder within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against all losses, claims, damages and
liabilities (including, without limitation, any reasonable legal fees or other
expenses actually incurred by any Holder or any such controlling or affiliated
person in connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto) pursuant to
which Registrable Securities were registered under the Securities Act, or caused
by any omission or alleged omission to state therein a material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, or caused by any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused
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by any omission or alleged omission to state therein a material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Holder furnished to the Company in writing by such
Holder expressly for use in any such Registration Statement or Prospectus;
provided that the foregoing indemnity with respect to any preliminary prospectus
shall not inure to the benefit of any Holder (or to the benefit of any person
controlling such Holder) from whom the person asserting any such losses, claims,
damages or liabilities purchased Registrable Securities if such untrue statement
or omission or alleged untrue statement or omission made in such preliminary
prospectus is eliminated or remedied in the related Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) and a copy of the related Prospectus (as so amended or supplemented)
shall have been furnished to such Holder at or prior to the sale of such
Registrable Securities, as the case may be, to such person; and provided,
further, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus if (i) such Holder failed to
send or deliver a copy of the Prospectus with or prior to the delivery of
written confirmation of the sale of Registrable Securities and (ii) the
Prospectus would have completely corrected such untrue statement or omission.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers and each
person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to such Holder, but only with reference
to information relating to such Holder furnished to the Company in writing by
such Holder expressly for use in any Registration Statement (or any amendment
thereto), any Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus. The liability of any Holder under this paragraph (b)
shall in no event exceed the proceeds received by such Holder from sales of
Registrable Securities giving rise to such obligations.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against which
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate
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in such proceeding and shall pay the reasonable fees and disbursements of such
counsel relating to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed in
writing to the retention of such counsel or (ii) the indemnifying party fails
promptly to assume the defense of such proceeding or fails to employ counsel
reasonably satisfactory to such indemnified party or parties or (iii) the named
parties to any such proceeding (including any impleaded parties) include both
such indemnified party or parties and the indemnifying parties or an affiliate
of the indemnifying parties or such indemnified parties, and there may be one or
more defenses available to such indemnified party or parties that are different
from or additional to those available to the indemnifying parties, in which
case, if such indemnified party or parties notifies the indemnifying parties in
writing that it elects to employ separate counsel of its choice at the expense
of the indemnifying parties, the indemnifying parties shall not have the right
to assume the defense thereof and such counsel shall be at the expense of the
indemnifying parties, it being understood, however, that unless there exists a
conflict among indemnified parties, the indemnifying parties shall not, in
connection with any one such proceeding or separate but substantially similar or
related proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for such indemnified party or parties. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
but, if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is a party, and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 5 is unavailable to an indemnified party in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the Company on the
one hand and the Holders on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of the
Company on the one hand and
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the Holders on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Holders and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Company and each Holder agrees that it would not be
just or equitable if contribution pursuant to this Section 5 were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred (and not otherwise reimbursed) by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 5, in no event shall a
Selling Holder be required to contribute any amount in excess of the amount by
which proceeds received by such Selling Holder from sales of Registrable
Securities exceeds the amount of damages that such Selling Holder has otherwise
been required to pay by reason of such untrue or allegedly untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 5 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
6. Miscellaneous.
(a) No Inconsistent Agreements. (i) Subject to clause (ii)
below, except for the Old Warrant Agreement, the Company has not entered into
nor will the Company on or after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's other issued and outstanding securities, if any, under any such
agreements.
(ii) The rights of Holders to require the Company to effect a
Demand Registration pursuant to Section 2.1 of this Agreement shall be subject
to the prior rights and obligations of the parties in the Stockholders
Agreement, but only to the extent that such prior rights and/or obligations
actually conflict with the Demand Registration rights provided for herein and as
in effect on the date hereof.
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(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least a majority in aggregate number of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
consent; provided, however, a waiver or consent to departure from the provisions
hereof that relates exclusively to the rights of Holders of Registrable
Securities whose securities are being sold pursuant to a Registration Statement
and that does not directly or indirectly affect the rights of other Holders of
Registrable Securities may be given by the Holders of a majority of the
Registrable Securities proposed to be sold.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with respect to the Purchaser, the
address set forth in the Purchase Agreement, with a copy to: Skadden, Arps,
Slate, Xxxxxxx & Xxxx, 000 X. Xxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000, Attention:
Xxxxxx X. Xxxxxxxx, Esq.; and (ii) if to the Company, initially at the Company's
address set forth in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 6(c), with a copy to: Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxxxx,
Esq.
All such notices and communications shall be deemed to have
been duly given: (i) at the time delivered by hand, if personally delivered,
five business days after being deposited in the mail, postage prepaid, if
mailed; (ii) when answered back, if telexed; (iii) when receipt is acknowledged,
if telecopied; and (iv) on the next business day, if timely delivered to an air
courier guaranteeing overnight delivery.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of this Agreement or the
Purchase Agreement. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and
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provisions of this Agreement and such person shall be entitled to receive the
benefits hereof.
(e) Rules 144 and 144A. The Company covenants that it will
file the reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder in a
timely manner and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Registrable Securities, make
publicly available other information of a like nature so long as necessary to
permit sales pursuant to Rule 144 or Rule 144A under the Securities Act. The
Company further covenants that so long as any Registrable Securities remain
outstanding to make available to any Holder of Registrable Securities in
connection with any sale thereof, the information required by Rule 144A(d)(4)
under the Securities Act in order to permit resales of such Registrable
Securities pursuant to (a) such Rule 144A, or (b) any similar rule or regulation
hereafter adopted by the SEC.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
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(i) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement, together with the
Purchase Agreement, is intended by the parties as a final expression of their
agreement, and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
RENAISSANCE COSMETICS, INC.
By: ____________________________
Name:
Title:
BASTION CAPITAL FUND, L.P.
By: _____________________________
Name:
Title:
