1
Exhibit 99.3
EXCHANGE AGENCY AGREEMENT
January __, 1997
Firstar Trust Company
Corporate Trust Services
000 Xxxx Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Ladies and Gentlemen:
Renaissance Cosmetics, Inc., a Delaware corporation (the "Company"),
intends to make an offer (the "Exchange Offer") to exchange its 14% Senior
Redeemable Preferred Stock, Series C, par value $0.01 per share (the "Series C
Preferred Stock"), for its outstanding 14% Senior Redeemable Preferred Stock,
Series B, par value $0.01 per share (the "Series B Preferred Stock"). The terms
and conditions of the Exchange Offer as currently contemplated are set forth in
a prospectus, dated January __, 1997 (the "Prospectus"), distributed to all
record holders of the Series B Preferred Stock. The Series B Preferred Stock and
the Series C Preferred Stock are collectively referred to herein as the
"Preferred Stock."
The Company hereby appoints Firstar Trust Company ("Firstar") to act
as exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to Firstar.
The Exchange Offer is expected to be commenced by the Company on or
about __________, 1997. The Letter of Transmittal accompanying the Prospectus is
to be used by the holders of the Series B Preferred Stock to accept the Exchange
Offer, and contains instructions with respect to the delivery of certificates
representing the shares of Series B Preferred Stock tendered.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
__________, 1997 or on such later date or time to which the Company may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Company expressly reserves the right to extend
the Exchange Offer from time to time and may extend the Exchange Offer by giving
oral (confirmed in writing) or written notice to you before 9:00 A.M., New York
City time, on the business day following the previously scheduled Expiration
Date.
2
2
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer" or as specifically set forth herein; provided, however, that in no way
will your general duty to act in good faith be discharged by the foregoing.
2. You are to examine each of the Letters of Transmittal and
certificates representing shares of Series B Preferred Stock and any other
documents delivered or mailed to you by or for holders of the Series B Preferred
Stock to ascertain whether: (i) the Letters of Transmittal and any such other
documents are duly executed and properly completed in accordance with the
instructions set forth therein and (ii) the shares of Series B Preferred Stock
have otherwise been properly tendered. In each case where the Letter of
Transmittal or any other document has been improperly completed or executed or
any of the certificates representing shares of Series B Preferred Stock are not
in proper form for transfer or some other irregularity in connection with the
acceptance of the Exchange Offer exists, you will endeavor promptly to inform
the presenters of the need for fulfillment of all requirements and promptly to
take any other action as may be necessary or advisable to cause such
irregularity to be corrected, and you will promptly notify the Company thereof.
3. With the approval of any of the Chairman, the Chief Executive
Officer, the President, any Vice President and the Secretary (each, a
"Designated Officer") of the Company, or of counsel to the Company (such
approval, if given orally, to be confirmed in writing) or any other party
designated by such a Designated Officer, you are authorized to waive any
irregularities in connection with any tender of shares of Series B Preferred
Stock pursuant to the Exchange Offer.
4. Tenders of shares of Series B Preferred Stock may be made only as
set forth in the Letter of Transmittal and in the section of the Prospectus
captioned "The Exchange Offer -- Procedures for Tendering Series B Preferred
Stock," and shares of Series B Preferred Stock shall be considered properly
tendered to you only when tendered in accordance with the procedures set forth
therein.
Notwithstanding the provisions of this paragraph 4, shares of Series
B Preferred Stock that a Designated Officer of the Company shall approve as
having been properly tendered shall be considered to be properly tendered.
5. You shall advise the Company with respect to any shares of Series
B Preferred Stock received subsequent to the Expiration Date and accept its
instructions with respect to disposition of such shares of Series B Preferred
Stock.
3
3
6. You shall accept tenders:
(a) in cases where the shares of Series B Preferred Stock are
registered in two or more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of shares of
Series B Preferred Stock provided that customary transfer requirements,
including payment of any applicable transfer taxes, have been satisfied.
You shall accept partial tenders of shares of Series B Preferred
Stock where so indicated and as permitted in the Letter of Transmittal and
deliver certificates representing shares of Series B Preferred Stock to the
transfer agent for split-up and return any untendered shares of Series B
Preferred Stock to the holder (or such other person as may be designated in the
Letter of Transmittal) as promptly as practicable.
7. The Company will exchange shares of Series B Preferred Stock duly
tendered for shares of Series C Preferred Stock on the terms and subject to the
conditions set forth in the Prospectus and the Letter of Transmittal. Delivery
of shares of Series C Preferred Stock will be made on behalf of the Company by
you at the rate of one share of Series C Preferred Stock for each share of
Series B Preferred Stock tendered as soon as practicable after notice (such
notice if given orally, to be confirmed in writing) of acceptance of said shares
of Series B Preferred Stock by the Company; provided, however, that in all
cases, shares of Series B Preferred Stock tendered pursuant to the Exchange
Offer will be exchanged only after timely receipt by you of certificates
representing such shares of Series B Preferred Stock, a properly completed and
duly executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees and any other required documents. Unless otherwise
instructed by the Company, you shall issue only whole shares of Series C
Preferred Stock.
8. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, shares of Series B Preferred Stock tendered
pursuant to the Exchange Offer may be withdrawn at any time prior to the
Expiration Date.
9. The Company shall not be required to exchange any shares of
Series B Preferred Stock tendered if any of the conditions set forth in the
Exchange Offer are not met. Notice of any decision by the Company not to
exchange any shares of Series B Preferred Stock tendered shall be given (and
confirmed in writing) by the Company to you.
4
4
10. If, pursuant to the Exchange Offer, the Company does not accept
for exchange all or part of the shares of Series B Preferred Stock tendered
because of an invalid tender, the occurrence of certain other events set forth
in the Prospectus under the caption "The Exchange Offer -- Certain Conditions to
the Exchange Offer" or otherwise, you shall as soon as practicable after the
expiration or termination of the Exchange Offer return those certificates
representing unaccepted shares of Series B Preferred Stock (or effect
appropriate book-entry transfer), together with any related required documents
and the Letters of Transmittal relating thereto that are in your possession, to
the persons who deposited them.
11. All certificates representing reissued shares of Series B
Preferred Stock, unaccepted shares of Series B Preferred Stock or shares of
Series C Preferred Stock shall be forwarded by (a) first-class certified mail,
return receipt requested under a blanket surety bond protecting you and the
Company from loss or liability arising out of the non-receipt or non-delivery of
such certificates or (b) by registered mail insured separately for the
replacement value of each of such certificates.
12. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
13. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth herein or as may be subsequently agreed to in writing by
you and the Company;
(b) will be regarded as making no representations and having
no responsibilities as to the validity, sufficiency, value or genuineness of any
of the certificates or the shares of Series B Preferred Stock represented
thereby deposited with you pursuant to the Exchange Offer, and will not be
required to and will make no representation as to the validity, value or
genuineness of the Exchange Offer; provided, however, that in no way will your
general duty to act in good faith be discharged by the foregoing;
(c) shall not be obligated to take any legal action hereunder
which might in your reasonable judgment involve any expense or liability, unless
you shall have been furnished with reasonable indemnity;
(d) may reasonably rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter, telegram or
other document or security delivered to you and reasonably believed by you to be
genuine and to have been signed by the proper party or parties;
5
5
(e) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as to the
truth and accuracy of any information contained therein, which you shall in good
faith believe to be genuine or to have been signed or represented by a proper
person or persons;
(f) may rely on and shall be protected in acting upon written
or oral instructions from any Designated Officer of the Company;
(g) may consult with your counsel with respect to any
questions relating to your duties and responsibilities and the written opinion
of such independent counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken by
you hereunder in good faith and in accordance with the written opinion of such
counsel; and
(h) shall not advise any person tendering shares of Series B
Preferred Stock pursuant to the Exchange Offer as to the wisdom of making such
tender or as to the market value or decline or appreciation in market value of
any shares of Series B Preferred Stock.
14. You shall take such action as may from time to time be requested
by the Company (and such other action as you may reasonably deem appropriate) to
furnish copies of the Prospectus, Letter of Transmittal and the Notice of
Guaranteed Delivery or such other forms as may be approved from time to time by
the Company, to all persons requesting such documents and to accept and comply
with telephone requests for information relating to the Exchange Offer, provided
that such information shall relate only to the procedures for accepting (or
withdrawing from) the Exchange Offer. The Company will furnish you with copies
of such documents at your request.
15. You shall advise by cable, telex, facsimile transmission or
telephone, and promptly thereafter confirm in writing to the Company and such
other person or persons as it may request, daily (and more frequently during the
week immediately preceding the Expiration Date and if otherwise requested) up to
and including the Expiration Date, as to the number of shares of Series B
Preferred Stock that have been tendered pursuant to the Exchange Offer and the
items received by you pursuant to this Agreement, separately reporting and
giving cumulative totals as to items properly received and items improperly
received. In addition, you will also inform, and cooperate in making available
to, the Company or any such other person or persons upon oral request made from
time to time prior to the Expiration Date such other information as it or he
reasonably requests. Such cooperation shall include, without limitation, the
granting by you to the Company and such person as the Company may request of
access to those persons on your staff who are responsible for receiving tenders,
in order to ensure that immediately prior to the Expiration Date the Company
shall have received information in sufficient detail to
6
6
enable it to decide whether to extend the Exchange Offer. You shall prepare a
final list of all persons whose tenders were accepted, the aggregate number of
shares of Series B Preferred Stock tendered, the aggregate number of shares of
Series B Preferred Stock accepted and deliver said list to the Company.
16. Letters of Transmittal and Notices of Guaranteed Delivery shall
be stamped by you as to the date and the time of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
preserve other records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company.
17. You hereby expressly waive any lien, encumbrance or right of
set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reasons of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
18. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule 1 attached hereto.
19. You hereby acknowledge receipt of the Prospectus and the Letter
of Transmittal and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and
the Letter of Transmittal (as they may be amended from time to time), on the
other hand, shall be resolved in favor of the latter two documents, except with
respect to the duties, liabilities and indemnification of you as Exchange Agent
which shall be controlled by this Agreement.
20. The Company covenants and agrees to indemnify and hold you in
your capacity as Exchange Agent hereunder harmless against any loss, liability,
cost or expense, including reasonable attorneys' fees arising out of or in
connection with any act, omission, delay or refusal made by you in reasonable
reliance upon any signature, endorsement, assignment, certificate, order,
request, notice, instruction or other instrument or document reasonably believed
by you to be valid, genuine and sufficient and in accepting any tender or
effecting any transfer of shares of Series B Preferred Stock reasonably believed
by you in good faith to be authorized, and in delaying or refusing in good faith
to accept any tenders or effect any transfer of shares of Series B Preferred
Stock; provided, however, that the Company shall not be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of your gross negligence, willful misconduct or bad faith. In
no case shall the Company be liable under this indemnity with respect to any
claim against you unless the Company shall be notified by you, by letter or
cable or by telex confirmed by letter, of the written assertion of a claim
against you or of any other action commenced against you, promptly after you
shall have received any such written assertion or shall have been served with a
summons in connection therewith.
7
7
In addition, the Company shall not be liable for any loss, liability, cost or
expense resulting from a settlement entered into without its consent. The
Company shall be entitled to participate at its own expense in the defense of
any such claim or other action, and, if the Company so elects, the Company shall
assume the defense of any suit brought to enforce any such claim. In the event
that the Company shall assume the defense of any such suit, the Company shall
not be liable for the fees and expenses of any additional counsel thereafter
retained by you, so long as the Company shall retain counsel reasonably
satisfactory to you to defend such suit.
21. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service. The Company understands that you are required to deduct 31% on
payments to holders who have not supplied their correct Taxpayer Identification
Number or required certification. Such funds will be turned over to the Internal
Revenue Service.
22. You shall deliver or cause to be delivered, in a timely manner
to each governmental authority to which any transfer taxes are payable in
respect of the exchange of shares of Series B Preferred Stock, your check in the
amount of all transfer taxes so payable, and the Company shall reimburse you for
the amount of any and all transfer taxes payable in respect of the exchange of
shares of Series B Preferred Stock; provided, however, that you shall reimburse
the Company for amounts refunded to you in respect of your payment of any such
transfer taxes, at such time as such refund is received by you.
23. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within such
state, and shall inure to the benefit of, and the obligations created hereby
shall be binding upon, the successors and assigns of each of the parties hereto.
This Agreement may not be modified orally.
24. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
25. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
26. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged.
8
8
27. Unless otherwise provided herein, all notices, requests and
other communications to any party hereunder shall be in writing (including
telecopy or similar writing) and shall be given to such party, addressed to it,
at its address or telecopy number set forth below:
If to the Company:
Renaissance Cosmetics, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
If to the Exchange Agent:
Firstar Trust Company
Corporate Trust Services
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxx
28. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Upon any termination of
this Agreement, you shall promptly deliver to the Company any certificates,
funds or property then held by you as Exchange Agent under this Agreement.
29. This Agreement shall be binding and effective as of the date
hereof.
9
9
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
RENAISSANCE COSMETICS, INC.
By:_________________________________
Name:
Title:
Accepted as of the date first above written.
FIRSTAR TRUST COMPANY
By:______________________________
Name:
Title:
Attested By:
_________________________________
Name:
Title:
10
Schedule 1
FEE SCHEDULE
Pursuant to Paragraph EIGHTEEN of the Exchange Agency Agreement, the fee
for the Agent is $1,500 plus out-of-pocket expenses.
