EXHIBIT 4.13
EXECUTION COPY
REVLON CONSUMER PRODUCTS CORPORATION
9 1/2% Senior Notes Due 2011
REGISTRATION AGREEMENT
March 16, 2005
CITIGROUP GLOBAL MARKETS INC.
As Representative of the Initial Purchasers
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
Revlon Consumer Products Corporation, a Delaware corporation ("Revlon"
or the "Issuer"), proposes to issue and sell to Citigroup Global Markets Inc. as
representative of certain initial purchasers (the "Initial Purchasers") listed
on Schedule 1 of a purchase agreement dated March 11, 2005 (the "Purchase
Agreement"), upon the terms set forth therein, its 9 1/2% Senior Notes due 2011
(the "Notes"). Capitalized terms used but not specifically defined herein are
defined in the Purchase Agreement. As an inducement to the Initial Purchasers to
enter into the Purchase Agreement and in satisfaction of a condition to your
obligations thereunder, Revlon agrees with you, for the benefit of the holders
of the Notes (including the Initial Purchasers) (the "Holders"), as follows:
1. Registered Exchange Offer. Revlon shall, at its cost, prepare and,
not later than 90 days after the Closing Date (or, if the 90th day is not a
business day, the first business day thereafter) (June 14, 2005, assuming the
Closing Date is March 16, 2005), shall file with the Securities and Exchange
Commission (the "Commission") a registration statement (the "Exchange Offer
Registration Statement") on an appropriate form under the Securities Act of
1933, as amended (the "1933 Act"), with respect to a proposed offer (the
"Registered Exchange Offer") to the Holders to issue and deliver to such
Holders, in exchange for the Notes, a like principal amount of debt securities
(the "Exchange Notes") of Revlon with terms substantially identical in all
material respects to the Notes (except that the Exchange Notes will not contain
terms with respect to transfer restrictions and interest rate increases), shall
use its best efforts to cause the Exchange Offer Registration Statement to
become effective under the 1933 Act by 180 days after the Closing Date (or, if
the 180th day is not a business day, the first business day thereafter)
(September 12, 2005, assuming the Closing Date is March 16, 2005) and shall
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use its best efforts to keep the Exchange Offer Registration Statement effective
under the 1933 Act until the close of business on the 180th day following the
expiration of the Registered Exchange Offer (such period being called the
"Exchange Offer Registration Period") for use by Exchanging Dealers (as defined
below) as contemplated in Section 3(g) below. Revlon shall be deemed not to have
used its best efforts to keep the Exchange Offer Registration Statement
effective during the Exchange Offer Registration Period if it voluntarily takes
any action that would result in Exchanging Dealers not being able to use such
Registration Statement as contemplated in such Section 3(g), unless (i) such
action is required by applicable law or (ii) such action is taken by Revlon in
good faith and for valid business reasons (not including avoidance of Revlon's
obligations hereunder), including, but not limited to, the acquisition or
divestiture of assets, so long as Revlon promptly thereafter complies with the
requirements of Section 3(j) hereof, if applicable. The Exchange Notes will be
issued under the Indenture.
Upon the effectiveness of the Exchange Offer Registration Statement,
the Issuer shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder electing to
exchange Notes for Exchange Notes (assuming that such Holder is not an affiliate
of Revlon within the meaning of the 1933 Act, acquires the Exchange Notes in the
ordinary course of such Holder's business and has no arrangements with any
person to participate in the distribution of the Exchange Notes) to trade such
Exchange Notes from and after their receipt without any limitations or
restrictions under the 1933 Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United
States. Notwithstanding the foregoing, the Initial Purchasers and Revlon
acknowledge that, pursuant to current interpretations by the Commission's staff
of Section 5 of the 1933 Act, and in the absence of an applicable exemption
therefrom, (i) each Holder (including any Initial Purchaser) which is a
broker-dealer electing to exchange the Notes, acquired for its own account as a
result of market making activities or other trading activities, for the Exchange
Notes (an "Exchanging Dealer"), is required to deliver a prospectus containing
the information set forth in Annex A hereto on the outside back cover page, in
Annex B hereto in "The Exchange Offer" section, and in Annex C hereto in the
"Plan of Distribution" section of such prospectus in connection with a sale of
any such Exchange Notes received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) each Initial Purchaser which elects to sell
Exchange Notes acquired in exchange for the Notes constituting any portion of an
unsold allotment is required to deliver a prospectus containing the information
required by Items 507 and/or 508 of Regulation S-K under the 1933 Act, as
applicable, in connection with such a sale.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds the Notes constituting any portion of an unsold allotment
acquired by it as part of its initial distribution, the Issuer, simultaneously
with the delivery of the Exchange Notes pursuant to the Registered Exchange
Offer, shall issue and deliver to such Initial Purchaser upon the written
request of such Initial Purchaser, in exchange (the "Private Exchange") for the
Notes held by such Initial Purchaser, a like principal amount of the Exchange
Notes issued under the Indenture and identical in all material respects
(including the existence of restrictions on transfer under the 1933 Act and the
securities
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laws of the several states of the United States) to the Notes (the "Private
Exchange Notes"; the Notes, the Exchange Notes and the Private Exchange Notes
being hereinafter referred to collectively as the "Securities"). The Issuer will
use reasonable efforts to cause the Private Exchange Notes to bear the same
CUSIP number as the Exchange Notes.
In connection with the Registered Exchange Offer, the Issuer shall:
(a) mail to each Holder of record a copy of the prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days
after the date notice thereof is mailed to the Holders (or longer if
required by applicable law);
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York, or
St. Xxxx, Minnesota, which may be the Trustee or an affiliate of the
Trustee;
(d) permit Holders to withdraw tendered Notes at any time prior to the
close of business, New York time, on the last business day on which the
Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all applicable laws.
As soon as practicable after the close of the Registered Exchange
Offer or the Private Exchange, as the case may be, the Issuer shall:
(a) accept for exchange all Notes validly tendered and not validly
withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(b) deliver to the Trustee for cancellation all Notes so accepted for
exchange; and
(c) cause the Trustee promptly to authenticate and deliver to each
Holder of record of the Notes either Exchange Notes or Private Exchange
Notes, as the case may be, equal in principal amount to the Notes of such
Holder so accepted for exchange.
The Indenture will provide that the Exchange Notes will not be subject
to the transfer restrictions applicable to the Notes set forth in the Indenture
and that all Securities issued under the Indenture will vote and consent
together on all matters as one class and that none of the Securities issued
under the Indenture will have the right to vote or consent as a class separate
from one another on any matter.
Notwithstanding any other provisions hereof, the Issuer shall ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto and
any
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prospectus forming part thereof and any supplement thereto complies in all
material respects with the 1933 Act and the rules and regulations thereunder,
(ii) any Exchange Offer Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any prospectus forming part
of any Exchange Offer Registration Statement, and any supplement to such
prospectus, does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements, in the light of
the circumstances under which they were made, not misleading.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Issuer that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Notes received by such Holder will be
acquired in the ordinary course of business, (ii) such Holder will have no
arrangements or understanding with any person to participate in the distribution
of the Notes or the Exchange Notes within the meaning of the 1933 Act, (iii)
such Holder is not an "affiliate", as defined in Rule 405 of the 1933 Act, of
Revlon or, if it is an affiliate, such Holder acknowledges that it must comply
with the registration and prospectus delivery requirements of the 1933 Act to
the extent applicable, (iv) if such Holder is not a broker-dealer, that it is
not engaged in, and does not intend to engage in, a distribution of the Exchange
Notes and (v) if such Holder is a broker-dealer, that it will receive Exchange
Notes for its own account in exchange for the Notes that were acquired as a
result of market-making activities or other trading activities and that it will
be required to acknowledge that it will deliver a prospectus in connection with
any resale of such Exchange Notes.
2. Shelf Registration. If, (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, the Issuer
determines that it is not permitted to effect the Registered Exchange Offer as
contemplated by Section 1 hereof, (ii) for any other reason the Registered
Exchange Offer is not consummated by the 210th day after the Closing Date (or,
if such day is not a business day, the first business day thereafter) (October
12, 2005, assuming the Closing Date is Xxxxx 00, 0000), (xxx) any Initial
Purchaser so requests with respect to the Notes (or Private Exchange Notes) held
by it following consummation of the Registered Exchange Offer, (iv) any Holder
(other than an Exchanging Dealer) is not eligible to participate in the
Registered Exchange Offer or, in the case of any Holder (other than an
Exchanging Dealer) or Initial Purchaser that participates in the Registered
Exchange Offer, such Holder or Initial Purchaser does not receive freely
tradeable Exchange Notes in exchange for the exchanged Notes (in the case of an
Initial Purchaser constituting any portion of an unsold allotment) (it being
understood that the requirement that an Initial Purchaser deliver a prospectus
in connection with sales of the Exchange Notes acquired in the Registered
Exchange Offer in exchange for the Notes acquired as a result of market-making
activities or other trading activities, shall not result in such Exchange Notes
not being "freely tradeable" for purposes of this Section 2) or (v) if the
Issuer so elects, the following provisions shall apply:
(a) The Issuer shall, at its cost, as promptly as practicable file
with the Commission and thereafter shall use its best efforts to cause to be
declared effective a
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shelf registration statement on an appropriate form under the 1933 Act relating
to the offer and sale of the Notes by the Holders or the Exchange Notes or the
Private Exchange Notes by the Initial Purchasers, as applicable, from time to
time in accordance with the methods of distribution elected by such Holders or
the Initial Purchasers, as applicable, and set forth in such registration
statement (hereafter, a "Shelf Registration Statement" and, together with any
Exchange Offer Registration Statement, a "Registration Statement").
(b) The Issuer shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the prospectus
forming part thereof to be usable by Holders or the Initial Purchasers, as
applicable, for a period of two years from the date the Shelf Registration
Statement is declared effective by the Commission or such shorter period that
will terminate when all the Notes covered by the Shelf Registration Statement
have been sold pursuant to the Registration Statement or when, in the opinion of
outside counsel to the Issuer, which is reasonably satisfactory in form and
substance to counsel for the Initial Purchasers, all such Notes may be sold
without registration under the 1933 Act and unlegended certificates representing
the Securities may be given to the holders thereof (in any such case, such
period being called the "Shelf Registration Period"). The Issuer shall be deemed
not to have used its best efforts to keep the Shelf Registration Statement
effective during the requisite period if Revlon voluntarily takes any action
that would result in Holders of Securities covered thereby not being able to
offer and sell such Securities during that period, unless (i) such action is
required by applicable law, or (ii) such action is taken by Revlon in good faith
and for valid business reasons (not including avoidance of Revlon's obligations
hereunder), including, but not limited to, the acquisition or divestiture of
assets, so long as the Issuer promptly thereafter complies with the requirements
of Section 3(j) hereof, if applicable.
(c) Notwithstanding any other provisions hereof, the Issuer shall
ensure that (i) any Shelf Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the 1933 Act and the rules and regulations thereunder,
(ii) any Shelf Registration Statement and any amendment thereto does not, when
it becomes effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any prospectus forming part of any
Shelf Registration Statement, and any supplement to such prospectus, does not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements, in the light of the circumstances
under which they were made, not misleading.
3. Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply:
(a) The Issuer shall (i) furnish to each Initial Purchaser, prior to
the filing thereof with the Commission, a copy of the Registration Statement and
each amendment thereof and each supplement, if any, to the prospectus included
therein and shall use its best efforts to reflect in each such document, when so
filed with the Commission, such
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comments as the Initial Purchasers reasonably may propose; (ii) include the
information set forth in Annex A hereto on the outside back cover page, in Annex
B hereto in "The Exchange Offer" section, and in Annex C hereto in the "Plan of
Distribution" section of the prospectus forming a part of the Exchange Offer
Registration Statement, and include the information set forth in Annex D hereto
in the Letter of Transmittal delivered pursuant to the Registered Exchange
Offer; (iii) if requested by an Initial Purchaser, include the information
required by Items 507 and/or 508 of Regulation S-K under the 1933 Act, as
applicable, in the prospectus forming a part of the Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the names of the
Holders who propose to sell Securities pursuant to the Shelf Registration
Statement, as selling security holders.
(b) (1) The Issuer shall advise you (which notice pursuant to clause
(ii) shall be accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made) and, in the case of a Shelf
Registration Statement, the Holders of Securities included therein, and, in the
case of an Exchange Offer Registration Statement, any Exchanging Dealer which
has provided in writing to the Issuer a telephone or facsimile number or address
for notices, and, if requested by you or any such Holder or Exchanging Dealer,
confirm such advice in writing:
(i) when any Registration Statement and any amendment thereto has been
filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or supplements to
the Registration Statement or the prospectus included therein or for
additional information.
(2) The Issuer shall advise you and, in the case of a Shelf
Registration Statement, the Holders of Securities included therein, and, in the
case of an Exchange Offer Registration Statement, any Exchanging Dealer which
has provided in writing to the Issuer a telephone or facsimile number or address
for notices, and, if requested by you or any such Holder or Exchanging Dealer,
confirm such advice in writing:
(i) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose;
(ii) of the receipt by the Issuer of any notification with respect to
the suspension of the qualification of the Securities included therein for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and
(iii) of the happening of any event that requires the making of any
changes in the Registration Statement or the prospectus so that, as of such
date, the statements therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the
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case of the prospectus, in light of the circumstances under which they were
made) not misleading (which advice shall be accompanied by an instruction
to suspend the use of the prospectus until the requisite changes have been
made).
(c) The Issuer shall make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement at the earliest possible time.
(d) The Issuer shall furnish to each Holder of Securities included
within the coverage of any Shelf Registration Statement (including any
Exchanging Dealer which so requests in writing or any Initial Purchaser),
without charge and upon request, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing, all
exhibits (including those incorporated by reference).
(e) The Issuer shall, during the Shelf Registration Period, deliver to
each Holder of Securities included within the coverage of any Shelf Registration
Statement, without charge, as many copies of the prospectus (including each
preliminary prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably request; and the
Issuer consents to the use of the prospectus or any amendment or supplement
thereto by each of the selling Holders of Securities in connection with the
offering and sale of the Securities covered by the prospectus or any amendment
or supplement thereto.
(f) The Issuer shall furnish to each Exchanging Dealer or Initial
Purchaser, as applicable, which so requests, without charge, at least one copy
of the Exchange Offer Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Exchanging
Dealer or Initial Purchaser, as applicable, so requests in writing, all exhibits
(including those incorporated by reference).
(g) The Issuer shall, during the Exchange Offer Registration Period,
promptly deliver to each broker-dealer that is the beneficial owner (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "1934
Act")) of Exchange Notes received by such broker-dealer in the Registered
Exchange Offer (a "Participating Broker-Dealer") and such other persons as may
be required to deliver a prospectus following the Registered Exchange Offer,
without charge, as many copies of the prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such person
may reasonably request for delivery by such person in connection with a sale of
Exchange Notes received by it pursuant to the Registered Exchange Offer; and the
Issuer consents to the use of the prospectus or any amendment or supplement
thereto by any such Participating Broker-Dealer or other person as aforesaid.
(h) Prior to any public offering of Securities pursuant to any
Registration Statement, the Issuer shall register or qualify or cooperate with
the Holders of Securities included therein and their respective counsel in
connection with the registration or
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qualification of such Securities for offer and sale under the securities or blue
sky laws of such jurisdictions as any such Holder reasonably requests in writing
and do any and all other acts or things necessary or advisable to enable the
offer and sale in such jurisdictions of the Securities covered by such
Registration Statement; provided, however, that Revlon shall not be required to
qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process or to taxation in any such jurisdiction where it is not then so subject.
(i) The Issuer shall cooperate with the Holders of Securities to
facilitate the timely preparation and delivery of certificates representing the
Securities to be sold pursuant to any Shelf Registration Statement free of any
restrictive legends and in such denominations and registered in such names as
Holders may request prior to sales of the Securities pursuant to such Shelf
Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraph
(b)(2)(iii) above, the Issuer shall promptly prepare a post-effective amendment
to the Registration Statement or a supplement to the related prospectus or file
any other required document so that, as thereafter delivered to purchasers of
the Securities included therein, the prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. If the Issuer notifies the Initial Purchasers, the
Holders and any known Participating Broker-Dealer in accordance with paragraphs
(1)(ii) or (2)(i) through (iii) of Section 3(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been made, then
the Initial Purchasers, the Holders and any such Participating Broker-Dealers
shall suspend use of such prospectus.
(k) Not later than the effective date of the applicable Registration
Statement, the Issuer shall provide a CUSIP number for the Notes, the Exchange
Notes or the Private Exchange Notes, as the case may be, and provide the trustee
with printed certificates for the Notes, the Exchange Notes or the Private
Exchange Notes, as the case may be, in a form eligible for deposit with The
Depository Trust Company (it being expressly understood that the Exchange Notes
will continue to be held in book-entry form in the same manner as the Notes).
(l) The Issuer shall comply with all applicable rules and regulations
of the Commission and shall make generally available to its security holders as
soon as practicable after the effective date of the applicable Registration
Statement an earnings statement satisfying the provisions of Section 11(a) of
the 0000 Xxx.
(m) The Issuer shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended, in a timely manner. In the event that
such qualification would require the appointment of a new trustee under the
Indenture, the Issuer shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
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(n) The Issuer may require each Holder of Securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Issuer such
information regarding the Holder and the distribution of such Securities as the
Issuer may from time to time reasonably require for inclusion in such
Registration Statement, and the Issuer may exclude from such Registration
Statement the Securities of any Holder that fails to furnish such information
within a reasonable time after receiving such request.
(o) The Issuer shall enter into such customary agreements (including
if requested an underwriting agreement in customary form) and take all such
other action, if any, as any Holder shall reasonably request in order to
facilitate the disposition of the Securities pursuant to any Shelf Registration
Statement.
(p) In the case of any Shelf Registration Statement, the Issuer shall
(i) make reasonably available for inspection by the Holders, and any underwriter
participating in any disposition pursuant to a Registration Statement, and any
attorney, accountant or other agent retained by the Holders or any such
underwriter, all relevant financial and other records, pertinent corporate
documents and properties of the Issuer and (ii) cause the Issuer's officers,
directors and employees to supply all relevant information reasonably requested
by the Holders or any such underwriter, attorney, accountant or agent in
connection with any such Registration Statement; provided, however, that if any
information is designated in writing by the Issuer, in good faith, as
confidential at the time of delivery of such information, the Holders or any
such underwriter, attorney, accountant or other agent, shall agree to keep such
information confidential, unless such disclosure is made in connection with a
court proceeding or required by applicable law, regulation or judicial process
or at the request of any regulatory entity, governmental agency or authority, or
self-regulatory agency or stock exchange having, or reasonably claiming to have,
regulatory powers over any such recipient's activities, or such information
becomes available to the public generally or through a third party, other than
by such Holder, underwriter, attorney, accountant or other agent, without an
accompanying obligation of confidentiality.
(q) In the case of any Exchange Offer Registration Statement, the
Issuer shall (i) make reasonably available for inspection by the Initial
Purchasers, but in each case only in such firm's capacity as an Exchanging
Dealer and with the express understanding that each such firm shall be acting
solely for itself and not on behalf of any other party, including, without
limitation, any other Exchanging Dealer, all relevant financial and other
records, pertinent corporate documents and properties of the Issuer and (ii)
cause the Issuer's officers, directors and employees to supply all information
reasonably requested by any of them; provided, however, that if any information
that is designated in writing by the Issuer, in good faith, as confidential at
the time of delivery of such information, the Initial Purchasers shall agree to
keep such information confidential unless such disclosure is made in connection
with a court proceeding or required by applicable law, regulation or judicial
process or at the request of any regulatory entity, governmental agency or
authority, or self-regulatory agency or stock exchange having, or reasonably
claiming to have, regulatory powers over any such recipient's activities, or
such information becomes available to the public generally or through a third
party, other than by such Initial Purchasers, without an accompanying obligation
of confidentiality.
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The Issuer understands and recognizes that the Initial Purchasers, as
participants in the offering of the Notes, and their authorized representatives
have obligations and defenses under the various securities laws, regulations,
principles and related case law including in connection with complete and
correct disclosure to investors, "due diligence" and obligations imposed by
applicable standards of professional conduct. Nothing in this Section 3(q) shall
limit in any respect (a) the ability of the Initial Purchasers to comply in full
with such obligations and (b) the ability of any party or its agents to retain
and disclose such information provided by the Issuer pursuant to this Section
3(q) that such Initial Purchaser believes, in good faith, is necessary to
establish any claim or defense in connection with any claims, action or
proceeding to which it is a party.
(r) In the case of any Shelf Registration Statement, the Issuer, if
requested by any Holder, shall cause (x) its counsel to deliver an opinion
relating to the Securities included within the coverage of such Shelf
Registration Statement in customary form, (y) its officers to execute and
deliver all customary documents and certificates requested by any underwriters
of the Securities and (z) its independent public accountants to provide to the
selling Holders and any underwriter therefor a comfort letter in customary form.
(s) In the case of any Exchange Offer Registration Statement, the
Issuer, if requested by the Initial Purchasers, but in each case only in such
firm's capacity as an Exchanging Dealer and with the express understanding that
each such firm shall be acting solely for itself and not on behalf of any other
party, including, without limitation, any other Exchanging Dealer, in connection
with any prospectus delivery as contemplated in paragraph (g) above, shall use
its best efforts to cause, on and as of the effective date of the Exchange Offer
Registration Statement, (x) its counsel to deliver an opinion relating to the
Exchange Offer Registration Statement and the Exchange Notes in customary form,
(y) its officers to execute and deliver all customary documents and certificates
requested and (z) its independent public accountants to provide a comfort letter
in customary form, subject to receipt of appropriate documentation (including
the delivery of a customary representation letter), as contemplated by Statement
on Auditing Standards No. 72.
(t) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Notes by Holders to the Issuer (or to such
other person as directed by the Issuer) in exchange for the Exchange Notes or
the Private Exchange Notes, as the case may be, the Issuer shall xxxx, or cause
to be marked, on the Notes so exchanged that such Notes are being canceled in
exchange for the Exchange Notes or the Private Exchange Notes, as the case may
be; in no event shall the Notes be marked as paid or otherwise satisfied.
(u) The Issuer shall pay interest on the Notes for failure to comply
with its obligations under Section 1 or Section 2, as applicable, in accordance
with the terms of the Notes.
4. Registration Expenses. Revlon shall bear all expenses incurred in
connection with the performance of its obligations under Sections 1, 2 and 3
hereof and,
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in the event of any Shelf Registration Statement, shall reimburse the Holders
for the reasonable fees and disbursements of one firm or counsel designated by
the Holders of a majority in principal amount of the Securities to be registered
thereunder to act as counsel for the Holders in connection therewith up to
$50,000 in the aggregate, and, in the case of any Exchange Offer Registration
Statement, shall reimburse the Initial Purchasers, as applicable, for the
reasonable fees and disbursements of counsel in connection therewith up to
$50,000 in the aggregate, whether or not the Exchange Offer Registration
Statement or a Shelf Registration Statement is filed or becomes effective.
5. Indemnification. (a) In connection with a Shelf Registration or in
connection with any prospectus delivery pursuant to a Registered Exchange Offer
by an Exchanging Dealer as contemplated in Section 3(g) above, Revlon shall
indemnify and hold harmless each Holder, the directors, officers, employees and
agents of each Holder, if any, and each person, if any, who controls such Holder
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the 1933
Act, the 1934 Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof), arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in any such Registration Statement or any prospectus forming part
thereof or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein (in the case of any prospectus, in the light
of the circumstances under which they were made) not misleading; and
(ii) promptly, upon demand, each such indemnified party, as incurred,
against any and all legal or other expenses reasonably incurred (including,
subject to Section 5(c) hereof, the reasonable fees and disbursements of
counsel chosen by the indemnified party) in connection with investigating
or defending against any litigation, or any investigation or proceeding by
any governmental or regulatory agency or body, commenced or threatened, or
any losses, claims, damages or liabilities whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission;
provided, however, that (i) this indemnity shall not apply to any loss, claim,
damage, liability or expense to the extent arising out of or based upon any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the Issuer
by the indemnified party expressly for use in such Registration Statement or any
prospectus forming part thereof and (ii) such indemnity with respect to any
preliminary prospectus shall not inure to the benefit of any Holder (or the
directors, officers, employees and agents of such Holder or any person
controlling such Holder) from whom the person asserting any such loss, claim,
damage or liability purchased the Securities which are the subject thereof if
such person did not receive a copy of the final prospectus (or the final
prospectus as
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supplemented) at or prior to the confirmation of the sale of such Securities to
such person and (A) the untrue statement or omission of a material fact
contained in such preliminary prospectus was corrected in the final prospectus
(or the final prospectus as supplemented) and (B) such Holder had previously
been furnished by or on behalf of the Issuer (prior to the date of mailing by
such Holder of the applicable confirmation) with a sufficient number of copies
of the final prospectus as so amended or supplemented.
(b) In the event of a Shelf Registration Statement, each Holder shall
indemnify and hold harmless the Issuer, its directors, officers, employees and
agents and each person, if any, who controls the Issuer within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in Section 5(a) hereof, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment or supplement thereto) in reliance on
and in conformity with written information furnished to the Issuer by such
Holder expressly for use in the Registration Statement (or in such amendment or
supplement); provided, however, that no such Holder shall be liable for any
indemnity claims hereunder in excess of the amount of net proceeds received by
such Holder from the sale of Securities pursuant to the Registration Statement.
(c) Each indemnified party shall give notice promptly to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses; and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. If any such
claim or action shall be brought against an indemnified party, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. Except as set forth below, after notice from the indemnifying party to
the indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 5 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof (other than
reasonable costs of investigation). Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party; (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the
13
indemnified party within a reasonable time after notice of the institution of
such action; or (iv) the indemnifying party shall authorize the indemnified
party in writing to employ separate counsel at the expense of the indemnifying
party. It is understood, however, that the indemnifying party shall, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
only one separate firm of attorneys (in addition to any local counsel) at any
time for all such indemnified parties and controlling persons. An indemnifying
party shall not be liable under this Section 5 to any indemnified party
regarding any settlement or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent is consented to
by such indemnifying party (which consent shall not be unreasonably withheld),
but if settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. An indemnifying party shall not, without
the prior written consent of the indemnified party (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided for in Sections 5(a)
through (c) hereof is unavailable to or insufficient to hold harmless an
indemnified party for any reason, Revlon and the applicable Holder or Holders
severally agree to contribute to the aggregate losses, claims, damages,
liabilities and expenses (including legal or other expenses reasonably incurred
in connection with investigating or defending the same), contemplated by said
indemnity (collectively "Losses"), to which Revlon and such Holder or Holders
may be subject. Revlon will be responsible for the portion of such Losses
represented by the percentage that the aggregate consideration received by
Revlon from the sale by it of the Securities sold by such Holder bears to the
aggregate principal amount of Securities sold by such Holder and such Holder
will be responsible for the balance of such Losses; provided, however, that no
person found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) by a court of competent jurisdiction shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 5, each person, if any, who
controls a Holder within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such Holder and
each director and officer of Revlon and each person, if any, who controls Revlon
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as Revlon.
14
(e) The agreements contained in this Section 5 shall survive the sale
of the Securities pursuant to a Registration Statement and shall remain in full
force and effect, regardless of any termination or cancelation of this Agreement
or any investigation made by or on behalf of any indemnified party.
6. Underwritten Registrations. (a) "Transfer Restricted Notes" means
each Security until the earliest of (i) the date on which such Transfer
Restricted Note has been exchanged by a person other than a broker-dealer for a
freely transferable Exchange Note in the Registered Exchange Offer, (ii)
following the exchange by a broker-dealer in the Registered Exchange Offer of a
Transfer Restricted Note for an Exchange Note, the date on which such Exchange
Note is sold to a purchaser who receives from such broker-dealer on or prior to
the date of such sale a copy of the prospectus contained in the Exchange Offer
Registration Statement, (iii) the date on which such Transfer Restricted Note
has been effectively registered under the 1933 Act and disposed of in accordance
with the Shelf Registration Statement or (iv) the date on which such Transfer
Restricted Note is distributed to the public pursuant to Rule 144 under the 1933
Act or is saleable pursuant to Rule 144(k) under the 0000 Xxx.
(b) If any of the Transfer Restricted Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will administer the offering
("Managing Underwriters") will be selected by the Holders of a majority in
aggregate principal amount of such Transfer Restricted Notes to be included in
such offering.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted Notes on
the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
7. Miscellaneous. (a) Amendment and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless Revlon has
obtained the written consent of Holders of a majority in aggregate principal
amount of the Securities.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such Holder
to the Issuer in accordance with the provisions of this Section 7(b), which
address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture, with a copy in like
manner to the Initial Purchasers;
15
(ii) if to the Initial Purchasers, initially at the respective
addresses set forth in the Purchase Agreement with copies to the parties
specified therein; and
(iii) if to the Issuer, initially at its address set forth in the
Purchase Agreement, with copies to the parties specified therein.
All such notices and communications shall be deemed to have been duly
given when received.
The Initial Purchasers or Revlon by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(c) Successors and Assigns. This Agreement shall be binding upon
Revlon and its successors and assigns.
(d) 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.
(e) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Specified times of day
refer to New York City time.
(g) THE PARTIES HERETO HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF
THE FEDERAL AND STATE COURTS IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK
IN ANY SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
(h) Severability. If 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.
(i) Securities Held by the Issuer. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Securities is required
hereunder, Securities held by the Issuer or any of its affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
(j) No Inconsistent Agreements. Revlon has not, as of the date hereof,
entered into, nor shall it, on or after the date hereof, enter into, any
agreement with
16
respect to its securities that is inconsistent with the rights granted to the
Holders herein or otherwise conflicts with the provisions hereof.
(k) Copies of Agreement. Revlon shall provide a copy of this Agreement
to prospective purchasers of the Notes identified to them by the Initial
Purchasers upon request.
Please confirm that the foregoing correctly sets forth the agreement
between Revlon and you.
Very truly yours,
REVLON CONSUMER PRODUCTS CORPORATION,
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and
Assistant Secretary
[Registration Agreement Signature Page]
CONFIRMED AND ACCEPTED
as of the date first above written:
CITIGROUP GLOBAL MARKETS INC.,
By /s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
[Registration Agreement Signature Page]
ANNEX A TO
REGISTRATION AGREEMENT
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the 1933 Act. This Prospectus, as it may be amended or supplemented
from time to time, may be used by a broker-dealer in connection with resales of
Exchange Notes received in exchange for the Notes where such Notes were acquired
by such broker-dealer as a result of market-making activities or other trading
activities. The Issuer has agreed that, for a period of 180 days after the
Expiration Date (as defined herein), it will make this Prospectus available to
any broker-dealer for use in connection with any such resale. See "Plan of
Distribution".
ANNEX B TO
REGISTRATION AGREEMENT
Each broker-dealer that receives Exchange Notes for its own account in
exchange for the Notes, where such Notes were acquired by such broker-dealer as
a result of market-making activities or other trading activities, must
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Notes. See "Plan of Distribution".
ANNEX C TO
REGISTRATION AGREEMENT
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Existing Notes where such Existing Notes were acquired as a result
of market-making activities or other trading activities. The Issuer has agreed
that for a period of 180 days after the Expiration Date, it will make this
Prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with any such resale. In addition, until o, 200o, all dealers
effecting transactions in the Exchange Notes may be required to deliver a
prospectus. (1)
The Issuer will not receive any proceeds from any sale of Exchange
Notes by broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Notes or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such Exchange Notes. Any
broker-dealer that resells Exchange Notes that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Notes may be deemed to be an
"underwriter" within the meaning of the 1933 Act and any profit on any such
resale of Exchange Notes and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the 1933 Act. The
Letter of Transmittal states that by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the 1933 Act.
For a period of 180 days after the Expiration Date, the Issuer will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Issuer has agreed to pay all expenses incident
to the Exchange Offer other than commissions or concessions of any brokers or
dealers and will indemnify the holders of the Notes (including any
broker-dealers) against certain liabilities, including liabilities under the
0000 Xxx.
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(1) The legend required by Item 502(b) of Regulation S-K must appear on the
back page of the Exchange Offer Prospectus, if required.
ANNEX D TO
REGISTRATION AGREEMENT
Rider A
[_] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
Rider B
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes, it represents that the Notes to be
exchanged for Exchange Notes were acquired by it as a result of market-making or
other trading activities and acknowledges that it will deliver a prospectus in
connection with any resale of such Exchange Notes; however, by so acknowledging
and by delivering a prospectus, the undersigned will not be deemed to admit that
it is an "underwriter" within the meaning of the 1933 Act.
