REVLON WORLDWIDE (PARENT) CORPORATION
Senior Secured Discount Notes due 2001
REGISTRATION AGREEMENT
March 5, 1997
CHASE SECURITIES INC.
XXXXX XXXXXX INC.
c/o Chase Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
Revlon Worldwide (Parent) Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell to Chase Securities
Inc. and Xxxxx Xxxxxx Inc. (the "Initial Purchasers"), upon the terms set
forth in a purchase agreement of even date herewith (the "Purchase
Agreement"), its Senior Secured Discount Notes due 2001 (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, the Company agrees with you, for the benefit of the holders of the
Notes (including the Initial Purchasers) (the "Holders"), as follows:
1. Registered Exchange Offer. The Company shall, at its
cost, prepare and, not later than 45 days following the Deposit Date (or if
the 45th day is not a business day, the first business day thereafter), 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 the Company
identical in all material respects to the Notes (except that the interest rate
increase provisions and the transfer restrictions will be modified or
eliminated, as appropriate), shall use its best efforts to cause the Exchange
Offer Registration Statement to become effective under the 1933 Act within 150
days of the Deposit Date (or if the 150th day is not a business day, the first
business day thereafter) 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. The Company 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 the Company in good faith and for valid business reasons
(not including avoidance of the Company's obligations hereunder), including
the acquisition or divestiture of assets, so long as the Company 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 Company 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 the Company 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 the Company 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 Notes,
acquired for its own account as a result of market making activities or other
trading activities, for Exchange Notes (an "Exchanging Dealer"), is required
to deliver a prospectus containing the information set forth in Annex A hereto
on the cover, 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
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and (ii) each Initial Purchaser which elects to sell Exchange Notes acquired
in exchange for 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 Notes constituting any portion of an unsold allotment
acquired by it as part of its initial distribution, the Company,
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 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 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 Company 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
Company shall:
(a) mail to each Holder 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;
(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
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(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 Company shall:
(a) accept for exchange all Notes 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 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 set forth in the Indenture and that
all the Securities will vote and consent together on all matters as one class
and that none of the Securities will have the right to vote or consent as a
class separate from one another on any matter.
Notwithstanding any other provisions hereof, the Company
shall ensure that (i) any Exchange Offer 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 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 Company 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,
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(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 the Company 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 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 Company
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 within 180 days of the Deposit Date (or if
the 180th day is not a business day, the first business day thereafter), (iii)
any Initial Purchaser so requests with respect to 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 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 Exchange Notes acquired in
the Registered Exchange Offer in exchange for 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 Company so elects, the following provisions shall apply:
(a) The Company 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 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
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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 Company 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
Securities covered by the Shelf Registration Statement have been sold
pursuant to the Registration Statement or when, in the opinion of
outside counsel to the Company, which is reasonably satisfactory in
form and substance to counsel for the Initial Purchasers, all such
Securities 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 Company shall be deemed not to have
used its best efforts to keep the Shelf Registration Statement
effective during the requisite period if it 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 the Company in good faith and for valid business
reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets, so
long as the Company promptly thereafter complies with the
requirements of Section 3(j) hereof, if applicable.
(c) Notwithstanding any other provisions hereof, the Company
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
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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 Company 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 comments as the Initial Purchasers reasonably
may propose; (ii) include the information set forth in Annex A hereto
on the cover, 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 Company 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 Company 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:
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(i) when the 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 Company shall advise you and, in the case of a Shelf
Registration Statement, 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 Company 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 Company 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 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 Company shall make every reasonable effort to obtain
the withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
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(d) The Company 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, at least one copy of such Shelf
Registration Statement and any posteffective amendment thereto,
including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits (including those incorporated by
reference).
(e) The Company 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 Company
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 Company 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 Company 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 Company
consents to the use of the prospectus or any amendment or
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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 Company shall register or qualify or
cooperate with the Holders of Securities included therein and their
respective counsel in connection with the registration or
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 the Company 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 Company shall cooperate with the Holders of
Securities to facilitate the timely preparation and delivery of
certificates representing 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 Securities pursuant to such Shelf Registration
Statement.
(j) Upon the occurrence of any event contemplated by
paragraph (b)(2)(iii) above, the Company 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
Company 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.
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(k) Not later than the effective date of the applicable
Registration Statement, the Company shall provide a CUSIP number for
the Notes, the Exchange Notes or the Private Exchange Notes, as the
case may be, and provide the applicable 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.
(l) The Company 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 1933 Act.
(m) The Company 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 Company shall
appoint a new trustee thereunder pursuant to the applicable
provisions of the Indenture.
(n) The Company may require each Holder of Securities to be
sold pursuant to any Shelf Registration Statement to furnish to the
Company such information regarding the holder and the distribution of
such Securities as the Company may from time to time reasonably
require for inclusion in such Registration Statement, and the Company
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 Company 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
Company 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
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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 the Holders
or any such underwriter, attorney, accountant or agent in connection
with any such Registration Statement.
(q) In the case of any Exchange Offer Registration
Statement, the Company 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 Company
and (ii) cause the Company's officers, directors and employees to
supply all information reasonably requested by any of them.
(r) In the case of any Shelf Registration Statement, the
Company, if requested by any Holders, 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 Company, 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
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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
Company (or to such other person as directed by the Company) in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be, the Company shall mark, or caused 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 Company 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. The Company shall bear all
expenses incurred in connection with the performance of its obligations under
Sections 1, 2 and 3 hereof and, 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, 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, whether or not the Exchange Offer Registration Statement
or a Shelf Registration Statement is filed or becomes effective.
5. Indemnification. (a) In the event of 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,
the Company shall indemnify and hold harmless each Holder 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 loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in any such
Registration
14
Statement or any prospectus forming part thereof or the omission or
alleged omission therefrom of 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;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental or regulatory agency or body,
commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 5(c) hereof, the fees and
disbursements of counsel chosen by the indemnified party) reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental or
regulatory agency or body, commenced or threatened, or any claim
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,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by
the indemnified party expressly for use in such Registration Statement and
(ii) such indemnity with respect to any preliminary prospectus shall not inure
to the benefit of any 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 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 Company (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.
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(b) In the event of a Shelf Registration Statement, each
Holder shall indemnify and hold harmless the Company, its directors
and officers and each person, if any, who controls the Company 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 Company 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 as promptly as
reasonably practicable 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 shall not
relieve such indemnifying party from any liability which it may have
otherwise than on account of this indemnity agreement, except to the
extent actually prejudiced thereby. If any such claim or action shall
be brought against an indemnified party, the indemnified party shall
notify the indemnifying party thereof, 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. 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); provided, however, if the defendants in any such
action include both an indemnified party and an indemnifying party
and the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to
the indemnifying party, the indemnified party or parties under this
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Section 5 shall have the right to employ not more than one counsel
(in addition to any local counsel) to represent them and, in that
event, the fees and expenses of not more than one such separate
counsel (in addition to any local counsel) shall be paid by the
indemnifying party, as such expenses are incurred. No indemnifying
party shall be liable for any settlement effected without its written
consent. An indemnifying party shall not, without the prior written
consent of the indemnified party, 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) To provide for just and equitable contribution in
circumstances in which the indemnity provided for in Sections 5(a)
through (c) hereof is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms,
the Company and the applicable Holder or Holders shall contribute to
the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity incurred by the Company and
such Holder or Holders, as incurred, in such proportions that the
Company is responsible for that portion represented by the percentage
that the aggregate consideration received by the Company 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 is responsible for the balance; provided, however, that no
person found guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) 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 the Company and each person, if any, who
controls the Company 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 the Company.
17
(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 cancellation
of this Agreement or any investigation made by or on behalf of any indemnified
party.
7. Underwritten Registrations. (a) "Transfer Restricted
Notes" means each Security until (i) the date on which such Transfer
Restricted Note has been exchanged by a person other than a broker-dealer for a
freely transferrable 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 1933 Act.
(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.
8. 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 the
Company has obtained the written consent of Holders of a majority in aggregate
principal amount of the Securities.
18
(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:
(1) if to a Holder, at the most current address given by
such Holder to the Company in accordance with the provisions of this
Section 6(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;
(2) if to the Initial Purchasers, initially at the
respective addresses set forth in the Purchase Agreement with copies
to the parties specified therein; and
(3) if to the Company, 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 the Company 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 the Company 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 INTERNAL LAWS OF THE STATE OF NEW YORK.
Specified times of day refer to New York City time.
(g) Severability. If any one or more of the provisions
contained herein, or the application thereof in
19
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.
(h) Securities Held by the Company. Whenever the consent or
approval of Holders of a specified percentage of principal amount of
Securities is required hereunder, Securities held by the Company or 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.
(i) No Inconsistent Agreements. The Company has not, as of
the date hereof, entered into, nor shall it, on or after the date hereof,
enter into, any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(j) Copies of Agreement. The Company shall provide a copy of
this Agreement to prospective purchasers of Notes identified to the Company by
the Initial Purchasers upon request.
20
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
REVLON WORLDWIDE (PARENT)
CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-----------------------
Name:
Title:
CONFIRMED AND ACCEPTED
as of the date first above written:
CHASE SECURITIES INC.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
XXXXX XXXXXX INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
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 Notes where such Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Company 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".
A-1
ANNEX B TO
REGISTRATION AGREEMENT
Each broker-dealer that receives Exchange Notes for its own
account in exchange for Notes, where such Notes were acquired by such
broker-dealer as a result of marketmaking 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".
B-1
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 Company
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
, 199 , all dealers effecting transactions in the
Exchange Notes may be required to deliver a prospectus. 1/
The Company 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.
--------
1/ The legend required by Item 502(e) of Regulation S-K must appear on
the back page of the Exchange Offer Prospectus.
C-1
For a period of 180 days after the Expiration Date, the
Company 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 Company 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 1933 Act.
C-2
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 marketmaking 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.
D-1
