EXHIBIT 10.1
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT (this "Agreement"), dated November
22, 1995, by and among Xxxxxxx X. Xxxxxx ("LAL"), Xxxxxx X. Xxxxxx ("RSL"),
Xxxxxxx X. Xxxxxx ("WPL"), Xxxx X. Xxxxxx ("GML"), Xxxxx Xxxxxx ("AL"), Xxxx
Xxxxxx ("JL"), LAL Family Partners L.P., Lauder & Sons L.P., a Delaware limited
partnership, and the trustees of the various trusts set forth on the signature
pages hereof (hereinafter referred to, together with each other Family Member
(as defined below) that hereafter acquires Shares (as defined below), as the
"Stockholders"), and THE XXXXX XXXXXX COMPANIES INC., a corporation organized
under the laws of the State of Delaware (the "Corporation").
W I T N E S S E T H :
WHEREAS, the Stockholders collectively own (a) 42,531,618
shares of the Corporation's outstanding Class A Common Stock, par value $.01 per
share (the "Class A Common Stock"), and (b) 56,839,667 shares of the
Corporation's outstanding Class B Common Stock, par value $.01 per share (the
"Class B Common Stock" and, together with the Class A Common Stock, the
"Shares"); and
WHEREAS, the Stockholders and the Corporation are agreed
that it would be in the best interests of each Stockholder and the Corporation
to assure the continued management of the Corporation by restricting the
privilege of ownership of the common stock of the Corporation and, except as
hereinafter provided, to provide each of the Stockholders with the opportunity
to acquire additional Shares pursuant to the provisions hereof; and
WHEREAS, the Stockholders and the Corporation desire to
terminate the Amended and Restated Shareholder Agreement, dated June 2, 1994, as
amended on June 29, 1995 (the "Old Shareholder Agreement"), among Mrs. Xxxxx
Xxxxxx, LAL, RSL, WPL, GML, the trustees of the various trusts set forth on the
signature pages thereof, and the Corporation, and replace such agreement in its
entirety with this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the parties hereto agree as follows:
Article 1.Restriction on Transfer. Each of the Stockholders
hereby agrees that he, she or it shall not sell, assign, give, bequeath,
transfer, distribute, pledge, hypothecate or otherwise encumber or dispose of
(collectively, "Transfer") any Shares owned by him, her or it (whether now owned
or hereafter acquired) except as otherwise provided by this Agreement. Any
attempted or purported Transfer of any Shares by any Stockholder in violation or
contravention of the terms of this Agreement shall be void. The Corporation
shall, and shall instruct its transfer agent to, reject and refuse to transfer
on its books any Shares which may have been Transferred in violation or
contravention of any of the provisions of this Agreement, and shall not
recognize any person or persons, estates, executors, administrators, firms,
associations or corporations holding such shares as a stockholder, and such
person shall not have any rights as a stockholder. No dividend shall be paid on,
nor any distribution made on, any Shares Transferred in breach of this
Agreement.
Article 2.Permitted Transfers. The Stockholders shall be
permitted to Transfer Shares as provided in Article 3 hereof and, in addition,
as follows:
2.1. Public Sales and Certain Gifts, Bequests and
Distributions. Any Stockholder may Transfer shares of Class A Common Stock
pursuant to a widely distributed public offering of such shares registered under
the Securities Act of 1933, as amended (the "Securities Act"), or pursuant to
Rule 144 (including subsection (k) thereof) (or any successor rule or regulation
to Rule 144) under the Securities Act, without regard to the limitations imposed
by this Agreement. In addition, any Stockholder may Transfer to persons who are
not Family Members (as defined below) shares of Class A Common Stock by gift,
bequest or, in the case of Stockholders who are the trustees of a Family
Controlled Trust (as defined below) or the executors of the estate of a Lauder
Descendant (as defined below), by distribution from such Family Controlled Trust
or such estate to one or more beneficiaries thereof who are not Family Members
without regard to the limitations imposed by this Agreement; provided, however,
that the amount of shares of Class A Common Stock so Transferred by any one
Stockholder to all such transferees in a 90-day period may not exceed 1% of the
outstanding Shares. When two or more Stockholders act in concert for the purpose
of making gifts or distributions of shares of Class A Common Stock to a person
who is not a Family Member (including his, her or its affiliates), such shares
shall be aggregated for the purposes of the limitation in the immediately
preceding sentence. For purposes of this Section 2.1, the trustees of a Family
Controlled Trust in their capacity as trustees of such Family Controlled Trust
shall be deemed to be a single Stockholder and the executors of the estate of a
Lauder Descendant in their capacity as executors of such estate shall be deemed
a single stockholder.
2.2. Intra-Family Transfers. Any Stockholder may Transfer
Shares to one or more Family Members without regard to the limitations imposed
by this Agreement; provided, however, that, as a condition to such Transfer, any
Family Member to whom the Shares are Transferred that is not a party to this
Agreement executes and delivers to the Corporation an undertaking in
substantially the form attached hereto as Exhibit A.
2.3. Pledges to Institutions. Any Stockholder may xxxxx x
xxxx or security interest in, pledge, hypothecate or encumber (collectively, a
"Pledge") any Shares beneficially owned by him, her or it to a nationally or
internationally recognized financial or lending institution with assets of not
less than $10,000,000,000 (an "Institution"); provided, however, that the
Institution must agree in writing at or prior to the time such Pledge is made
that (i) no Transfer of Shares in connection with a foreclosure, forfeiture or
similar proceeding arising from the operation of such Pledge shall be made
except as provided in the immediately following sentence and (ii) if such
Institution itself should acquire ownership of Shares in connection with a
foreclosure, forfeiture or similar proceeding arising from the operation of such
Pledge, it will thereafter Transfer such Shares only in a manner that a
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Stockholder would be permitted to do pursuant to Section 2.1, 2.2 or 2.4 hereof.
An Institution that has been granted a Pledge of Shares may Transfer Shares in
connection with a foreclosure, forfeiture or similar proceeding arising from the
operation of such Pledge (a) to such Institution, (b) in a manner a Stockholder
would be permitted to do pursuant to Section 2.1, 2.2 or 2.4 hereof or (c) in
any other public or private sale so long as (i) the Stockholders are given at
least 45 days prior written notice of the time and place initially fixed for
such sale (which may be adjourned from time to time to any such time and place
as is announced at the time and place theretofore fixed for such sale) and (ii)
each Stockholder is entitled to bid to purchase such Shares at such sale subject
only to whatever limitations and conditions of general applicability are
generally established by such Institution in connection with such sale
(including, without limitation, limitations and conditions to assure compliance
with the Securities Act of 1933, as amended) (a "Foreclosure Sale"). Shares
Pledged to an Institution that are acquired by it in connection with a
foreclosure, forfeiture or similar proceeding arising from a Pledge of such
Shares may be transferred to the parent corporation of such institution or any
affiliated entity controlled by its parent corporation without regard to the
limitations imposed by this Agreement so long as the transferee agrees to be
bound by the provisions of this Agreement to the same extent such Institution is
bound.
2.4. Right of First Offer. (a) Any Stockholder (the
"Offering Stockholder") may Transfer any Shares to any person other than a
Family Member provided such Offering Stockholder first offers the Shares to be
Transferred (the "Offered Shares") to all Family Members who are then parties to
this Agreement as provided below (the "Right of First Offer").
(b) In order to offer any Offered Shares, the Offering
Stockholder shall give written notice (an "Offer Notice") of the proposed
Transfer to all Family Members who then are parties to this Agreement setting
forth, in reasonable detail, the Offering Stockholder's intent to make such
proposed Transfer, the number or amount of Offered Shares, the proposed date of
consummation of such Transfer (if known), the proposed purchase price per Share
(including, if known, the amount of cash or other property or consideration to
be received upon the consummation of the sale) (the "Offered Price Per Share"),
any proposed sales commission or advisory fees, and any other material terms and
conditions of the proposed Transfer to the extent then known. If the Transfer is
not for value, such as in the case of a gift, bequest or distribution, the
Offered Price Per Share shall equal the closing sales price per share of the
shares of Class A Common Stock on the last trading day prior to the date the
Offer Notice is sent.
(c) Each Family Member who is a party to this Agreement
shall then have the irrevocable right, exercisable within thirty (30) days after
the Offer Notice is given in accordance with Section 8.2 (the "Notice Period"),
to purchase such portion of the Offered Shares as the number of Shares owned by
such Family Member bears to the total number of Shares owned by all such Family
Members (excluding Shares owned by the Offering Stockholder), at a price per
Share equal to the Offered Price Per Share and on the payment terms specified in
the Offer Notice; provided, however, that the Offered Price Per Share for the
Offered Shares shall be reduced by the difference (if positive) between (i) the
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per Share amount of proposed sales commissions and advisory fees specified in
the Offer Notice and (ii) the per Share amount of any placement, investment
advisory or other similar fees (in the aggregate amount not to exceed 1% of the
gross purchase price for the Offered Shares) payable by the Offering Stockholder
in respect of the sale of the Offered Shares to Family Members. Each Family
Member who is a party to this Agreement may exercise his, her or its Right of
First Offer by delivering to the Offering Stockholder notice of such exercise
(an "Exercise Notice") within the Notice Period. If any Family Member wishes to
purchase less than all of his, her or its proportionate share of the Offered
Shares, he, she or it shall specify the amount of Offered Shares he, she or it
wishes to purchase in the Exercise Notice. Any Offered Shares that Family
Members shall have not elected to purchase during the Notice Period shall be
reoffered thereafter to all Family Members who have elected to purchase the full
amount of Shares offered to them. Such reoffer shall remain open for ten (10)
days commencing on the date on which written notice of such reoffer is given in
accordance with Section 8.2. Each such Family Member shall notify the Offering
Stockholder in writing within such ten (10) day period of the number of such
reoffered Offered Shares such Family Member desires to purchase (such Family
Member's "Designated Shares") and shall be entitled to purchase that number of
such reoffered Offered Shares equal to the lesser of (x) such Family Member's
Designated Shares and (y) the total number of such reoffered Offered Shares
multiplied by a fraction the numerator of which is such Family Member's
Designated Shares and the denominator of which is the aggregate Designated
Shares of all Family Members.
(d) The closing of the purchase and sale of the Offered
Shares shall occur on a date (not later than sixty (60) days after the date on
which the Exercise Notice is given or such later date as is the earliest date on
which the purchase may be completed in compliance with all applicable laws), and
at a time and place provided for in the Offer Notice.
(e) If any Offered Shares are not to be so purchased by
Family Members exercising their rights during such thirty (30) day and/or ten
(10) day periods, as the case may be, then, for a period of sixty (60) days
commencing on the day after the last day of such ten (10) day period or, if
there is no reoffer, the last day of such thirty (30) day period (the "Third
Party Sale Period"), the Offering Stockholder shall be entitled to Transfer such
Shares to one or more third parties for a gross price (or, in the case of a
Block Sale (as defined below), a price net of any sales commissions and advisory
fees) which is at least 95% of the Offered Price Per Share, and otherwise on
terms substantially similar to those described in the Offer Notice; provided,
however, that any Transfer of Shares proposed to be made by such Offering
Stockholder after the Third Party Sale Period or for a price per Share below the
price per Share specified in this sentence shall again be subject to the
provisions of this Article 2. The Offering Stockholder shall promptly notify the
Family Members who are parties to this Agreement of the sale (including the
final sale price) of any such Offered Shares to any third party during the Third
Party Sale Period. As used in this Agreement, a "Block Sale" means any sale,
transfer or other disposition, directly or indirectly, in a single transaction
or a series of transactions, of Offered Shares in any Third Party Sale Period in
which beneficial ownership of 80% or more of the aggregate amount of such
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Offered Shares is acquired by one or two groups of two or more persons who are
(i) "affiliates" (as such term is defined in Rule 12b-2 under the Exchange Act)
of each other or one another or (ii) "associates" (as such term is defined in
Rule 12b-2 under the Exchange Act) of each other or one another or (iii) members
of a group within the meaning of Section 13(d) of the Exchange Act.
(f) Any Pledge of Shares beneficially owned by a
Stockholder to an Institution shall not give the Family Members any right to
acquire such Shares pursuant to this Section 2.4. However, any proposed Transfer
of such Shares in connection with a foreclosure, forfeiture or similar
proceeding arising from the operation of any Pledge (other than a Transfer (a)
to the Institution to which such Pledge has been granted, (b) pursuant to
Section 2.1 or 2.2 hereof or (c) pursuant to a Foreclosure Sale) shall
constitute a Transfer subject to the provisions of this Section 2.4.
2.5. Family Members. For purposes of this Agreement, the
following terms shall have the following meanings:
(a) "Family Member" or "Family Members" shall mean the
following persons: (i) Mrs. Xxxxx Xxxxxx and her estate, guardian,
conservator or committee; (ii) each descendant of Mrs. Xxxxx Xxxxxx
(a "Lauder Descendant") and their respective estates, guardians,
conservators or committees; (iii) each Family Controlled Entity; and
(iv) the trustees, in their respective capacities as such, of each
Family Controlled Trust.
(b) "Family Controlled Entity" shall mean the following
entities: (i) any not-for-profit corporation if at least 80% of its
board of directors is composed of Mrs. Xxxxx Xxxxxx and/or Lauder
Descendants; (ii) any other corporation if at least 80% of the value
of its outstanding equity is owned by Family Members; (iii) any
partnership if at least 80% of the value of its partnership interests
are owned by Family Members; and (iv) any limited liability or
similar company if at least 80% of the value of the company is owned
by Family Members.
(c) "Family Controlled Trust" shall mean the following
trusts: (i) the trusts set forth on Schedule A hereto and (ii) any
trust the primary beneficiaries of which are Mrs. Xxxxx Xxxxxx,
Lauder Descendants, Spouses of Lauder Descendants and/or charitable
organizations (collectively, "Lauder Beneficiaries"), provided, that,
if the trust is a wholly charitable trust, at least 80% of the
trustees of such trust consist of Mrs. Xxxxx Xxxxxx and/or Lauder
Descendants. For purposes of this provision, the primary
beneficiaries of a trust will be deemed to be Lauder Beneficiaries
if, under the maximum exercise of discretion by the trustee in favor
of persons who are not Lauder Beneficiaries, the value of the
interests of such persons in such trust, computed actuarially, is 20%
or less. The factors and methods prescribed in section 7520 of the
Internal Revenue Code of 1986, as amended, for use in ascertaining
the value of certain interests shall be used in determining a
beneficiary's actuarial interest in a trust for purposes of applying
this provision. For purposes of this provision, the actuarial value
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of the interest in a trust of any person in whose favor a
testamentary power of appointment may be exercised shall be deemed to
be zero. For purposes of this provision, in the case of a trust
created by a Lauder Descendant, the actuarial value of the interest
in such trust of any person who may receive trust property only at
the termination of the trust and then only in the event that, at the
termination of the trust, there are no living issue of such Lauder
Descendant shall be deemed to be zero.
(d) "Spouses of Lauder Descendants" shall mean those
individuals who at any time were married to any Lauder Descendant
whether or not such marriage is subsequently dissolved by death,
divorce, or by any other means.
Article 3. Transfer Upon Involuntary Transfer. If Shares of
a Stockholder are Transferred by operation of law to any person other than a
Lauder Family Member, including without limitation, the trustee in bankruptcy of
a Stockholder or a purchaser at any creditor's or judicial sale (but not
including (a) any Transfer pursuant to the penultimate sentence of Section 2.3
hereof, (b) any Transfer to the guardian, conservator or committee of an
incompetent Stockholder or (c) any Transfer in a bankruptcy of Shares that are
pledged to an Institution), or if any Stockholder holding Shares ceases to be a
Family Member, then, in each case, such Stockholder shall be deemed to have
offered all of his, her or its Shares to all Family Members who are parties to
this Agreement in the manner described in Section 2.4 hereof, except that the
period of time in which the Family Members have the option to purchase such
Shares shall be from the date of receipt by the Corporation of notice of such
involuntary Transfer or such Stockholder ceasing to be a Family Member, as the
case may be, and the Offered Price Per Share shall equal the closing sales price
per share of the shares of Class A Common Stock on the last trading day prior to
such date. The Corporation shall notify the appropriate Stockholders of the
occurrence of such involuntary Transfer or Stockholder ceasing to be a Family
Member as soon as practicable after it is notified of the same.
Article 4. Board of Directors. (a) Each of the Stockholders
(or his, her or its representative) shall vote his, her or its Shares for the
election of LAL, RSL and a designee of each as directors of the Corporation;
provided, however, that in the event that either LAL (including descendants of
LAL) or RSL (including descendants of RSL), as the case may be, directly or
indirectly beneficially owns (other than by reason of this Agreement) Shares
representing less than 10% but at least 5% of the total voting power of the
Corporation, the Stockholders shall not be required to vote their Shares for the
election of LAL's or RSL's designee, as the case may be; and, provided further,
that in the event that either LAL (including descendants of LAL) or RSL
(including descendants of RSL), as the case may be, directly or indirectly
beneficially owns (other than by reason of this Agreement) Shares representing
less than 5% of the total voting power of the Corporation, the Stockholders
shall not be required to vote their Shares for the election of either LAL and
his designee or RSL and his designee, as the case may be.
(b) In the event that the designee of LAL or RSL ceases to
be a member of the Board of Directors by virtue of resignation, removal, death
or disability, then the Stockholder who designated such person, so long as he
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has the right to designate a nominee, shall designate another person to fill
that vacancy.
(c) In the event that LAL shall cease to be a member of the
Board of Directors by virtue of his death or disability, then WPL and GML shall
succeed to LAL's rights under this Article 4. If both WPL and GML are serving as
directors, GML shall be considered LAL's nominee. If either WPL or GML are
unable to serve by reason of death or disability, the other will have the right
to designate a nominee.
(d) In the event that RSL shall cease to be a member of the
Board of Directors by virtue of his death or disability, then AL and JL shall
succeed to RSL's rights under this Article 4. If both AL and JL are serving as
directors, JL shall be considered RSL's nominee. If either AL or JL are unable
to serve by reason of death or disability, the other will have the right to
designate a nominee.
Article 5.Legend on Certificates. All Shares now or
hereafter owned by the Stockholders shall be subject to the provisions of this
Agreement and the certificates representing such Shares shall bear the following
legend:
THE SALE, ASSIGNMENT, GIFT, BEQUEST, TRANSFER, DISTRIBUTION,
PLEDGE, HYPOTHECATION, OR OTHER ENCUM
BRANCE OR DISPOSITION OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED BY THE TERMS OF A STOCKHOLDERS' AGREEMENT AMONG CERTAIN MEMBERS OF
THE LAUDER FAMILY, CERTAIN FAMILY CONTROLLED ENTITIES, TRUSTEES OF CERTAIN
FAMILY CONTROLLED TRUSTS AND THE CORPORATION, A COPY OF WHICH MAY BE EXAMINED AT
THE OFFICE OF THE CORPORATION.
Article 6.Termination. (a) The rights and obligations under
this Agreement shall terminate automatically with respect to each Stockholder
upon the earliest to occur of (i) the execution of a written instrument to that
effect by the Corporation and each Stockholder who then owns Shares; (ii) the
merger or consolidation of the Corporation with a corporation upon consummation
of which all Stockholders immediately thereafter own in the aggregate less than
10% of the total voting power of the surviving or resulting corporation and
(iii) the sale, disposition or other transfer of Shares by any Stockholder that
causes all Stockholders immediately after such transaction to own in the
aggregate less than 10% of the total voting power of the Corporation.
(b) The rights and obligations under Article 4 of this
Agreement shall terminate automatically at such time as (i) LAL, WPL and GML are
unable to serve as directors by reason of death or disability and (ii) RSL, AL
and JL are unable to serve as directors by reason of death or disability.
Article 7.Termination of the Old Shareholder Agreement. The
Corporation, Mrs. Xxxxx Xxxxxx, the trustees of the Xxxxxx X. Xxxxxx 1992
Grantor Trust and the Stockholders (other than AL and JL) constitute all the
parties to the Old Shareholder Agreement. The Corporation, Xxx. Xxxxxx, the
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trustees of the Xxxxxx X. Xxxxxx 1992 Grantor Trust and the Stockholders hereby
agree that upon the execution and delivery of this Agreement, the Amended and
Restated Shareholder Agreement shall be terminated immediately and shall be of
no further force or effect.
Article 8.General Provisions
8.1. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
8.2. Notices. Any notices and other communications given
pursuant to this Agreement shall be in writing and shall be effective upon
delivery by hand or on the fifth day after deposit in the mail if sent by
certified or registered mail (postage prepaid and return receipt requested) or
on the next business day if sent by a nationally recognized overnight courier
service (appropriately marked for overnight delivery) or upon transmission if
sent by facsimile (with request for immediate confirmation of receipt in a
manner customary for communications of such type and with physical delivery of
the communication being made by one of the other means specified in this Section
8.2 as promptly as practicable thereafter). Notices are to be addressed as
follows:
(i) If to the Company:
The Xxxxx Xxxxxx Companies Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Telecopy: (000) 000-0000
With a copy to:
The Xxxxx Xxxxxx Companies Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
Telecopy: (000) 000-0000
and
Weil, Gotshal & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
(ii) If to a Stockholder, then as set forth in
the second column of Schedule B hereto with
a copy to the person or persons listed in
the third column of Schedule B hereto.
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All notices to a party hereto shall be deemed to have been duly given for all
purposes of this Agreement if given to such party (with a copy to such person or
persons as specified) in accordance with the first sentence of this Section 8.2
at (a) until notice is given pursuant to this Section 8.2 of a different
address, the address provided above or, in the case of any Family Member that
hereafter becomes a Stockholder, the address specified in the undertaking
delivered pursuant to section 2.2, or (b) after notice has been given pursuant
to this Section 8.2 of a different address, the address specified in such
notice. No notices hereunder shall be required to be given to any Family Member
that hereafter becomes a Stockholder until notice of such Family Member becoming
a Stockholder (including a copy of such Family Member's undertaking given
pursuant to Section 2.2) is given to the Corporation and to each Stockholder
(with a copy to such person or persons as specified) pursuant to this Section
8.2.
8.3. Headings. The headings of the various Articles and
Sections of this Agreement have been inserted for convenience only and shall not
be deemed to be part of this Agreement.
8.4. Binding Effect. This Agreement will be binding upon
and inure to the benefit of the Corporation, its successors and assigns and to
the Stockholders and their respective heirs, personal representatives,
successors and assigns.
8.5. No Oral Change. This Agreement may not be changed
orally, but only by an agreement in writing as signed by the party against whom
enforcement of any waiver, change, modification or discharge is sought.
8.6. Entire Understanding. This Agreement sets forth the
entire agreement and understanding of the parties hereto in respect of the
subject matter hereof and the transactions contemplated hereby and supersedes
all prior written and oral agreements, arrangements and understandings relating
to the subject matter hereof.
8.7. Remedies. (a) The parties acknowledge that money
damages are not an adequate remedy for violations of this Agreement and that any
party may, in such party's sole discretion, apply to any court of competent
jurisdiction for specific performance or injunctive or such other relief as such
court may deem just and proper in order to enforce this Agreement or prevent any
violation hereof and, to the extent permitted by applicable law, each party
waives any objection to the imposition of such relief.
(b) All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity shall be
cumulative and not alternative, and the exercise or beginning of the exercise of
any thereof by any party shall not preclude the simultaneous or later exercise
of any other such right, power or remedy by such party.
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8.8. Trustees' Capacity. With respect to obligations of
trustees who are parties hereto in their capacity as trustees of one or more
trusts, this Agreement shall be binding upon such trustees only in their
capacities as trustees, not individually and not with respect to any Shares
other than Shares held by them in their capacity as trustees of such trusts.
8.9. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one instrument. Each counterpart may consist
of a number of copies each signed by less than all, but together signed by all,
the parties hereto.
8.10. Application of Agreement to After-Acquired Shares.
All the provisions of this Agreement shall apply to all of the Shares of the
Corporation owned by a person at the time he, she or it is or becomes a party
hereto or which may be issued or transferred hereafter to a Stockholder in
consequence of any additional issuance, purchase, exchange or reclassification
of shares, corporate reorganization, or any other form of recapitalization, or
consolidation, or merger, or share split, or share dividend, or which are
acquired by a Stockholder in any other manner.
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IN WITNESS WHEREOF, the parties hereto have duly executed
and delivered this Agreement as of the date first above written.
THE XXXXX XXXXXX COMPANIES INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman and
Chief Executive Officer
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx, (a) individually,
(b) as Managing Partner of LAL
Family Partners L.P., (c) as Trustee
of The Xxxxx Xxxxxx 1994 Trust, (d)
as a Class B General Partner of
Lauder & Sons L.P. and (e) as
Trustee of The 1995 Xxxxx Xxxxxx LAL
Trust (a Class B General Partner of
Lauder & Sons L.P.)
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx, (a) individually,
(b) as Trustee of The Descendents of
RSL 1966 Trust, (c) as Trustee of
The Xxxxx Xxxxxx 1994 Trust, (d) as
a Class B General Partner of Lauder
& Sons L.P. and (e) as Trustee of
The 1995 Xxxxx Xxxxxx RSL Trust (a
Class B General Partner of Lauder &
Sons L.P.)
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx, (a) individually
and (b) as Trustee of the 1992
Xxxxxxx X. Xxxxxx Grantor Retained
Annuity Trust
Xxxx X. Xxxxxx, by
Xxxxxxxx X. Xxxx, Attorney-in-fact
------------------------------------
Xxxx X. Xxxxxx, (a) individually and
(b) as Trustee of the 1992 Xxxxxxx
X. Xxxxxx Grantor Retained Annuity
Trust
/s/ Xxxxx Xxxxxx
------------------------------------
Xxxxx Xxxxxx
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/s/ Xxxx Xxxxxx
------------------------------------
Xxxx Xxxxxx
/s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxxxx, (a) as Trustee
of the 1992 Xxxxxxx X. Xxxxxx
Grantor Retained Annuity Trust, (b)
as Trustee of the Trust f/b/o Xxxx
X. Xxxxxx and Xxxxxxx X. Xxxxxx
u/a/d December 15, 1976, created by
Xxxxxxx Xxxxxx, as Grantor and (c)
as Trustee of The 1995 Xxxxx Xxxxxx
LAL Trust (a Class B General Partner
of Lauder & Sons L.P.)
/s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxxx, as Trustee of
the Trust f/b/o Xxxx X. Xxxxxx and
Xxxxxxx X. Xxxxxx u/a/d December 15,
1976, created by Xxxxxxx Xxxxxx, as
Grantor
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx, (a) as Trustee
of the Trust f/b/o Xxxxx Xxxxxx and
Xxxx Xxxxxx u/a/d December 15, 1976,
created by Xxxxx Xxxxxx and Xxxxxx
X. Xxxxxx, as Grantors, (b) as
Trustee of the Trust f/b/o Xxxxx
Xxxxxx and Xxxx Xxxxxx u/a/d
December 15, 1976, created by Xxxxxx
X. Xxxxxx, as Grantor and (c) as
Trustee of The 1995 Xxxxx Xxxxxx RSL
Trust (a Class B General Partner of
Lauder & Sons L.P.)
/s/ Xxx X. Xxxxxx
------------------------------------
Xxx X. Xxxxxx, (a) as Trustee of The
Xxxxx Xxxxxx 1994 Trust, (b) as
Trustee of The 1995 Xxxxx Xxxxxx LAL
Trust (a Class B General Partner of
Lauder & Sons L.P.) and (c) as
Trustee of The 1995 Xxxxx Xxxxxx RSL
Trust (a Class B General Partner of
Lauder & Sons L.P.)
Agreed and accepted solely as to
Article 7 hereof:
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxx Xxxxxx, by Xxxxxx X. Xxxxxx as
attorney-in-fact
12
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx, as Trustee of the
Xxxxxx X. Xxxxxx 1992 Grantor Trust
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx, as Trustee of the
Xxxxxx X. Xxxxxx 1992 Grantor Trust
Xxxxxx Guaranty Trust Company of New
York, as Trustee of The Xxxxxx X.
Xxxxxx 1992 Grantor Trust
By: /s/
--------------------------------
Name:
Title: As its Vice President
13
Schedule A
Certain Family Controlled Trusts
1. Descendants of Xxxxxxx Xxxxxx 1966 Trust u/a/d June 14, 1966,
between Xxxxx Xxxxxx, as Settlor, and Xxxxxxx X. Xxxxxx, as Trustee, for the
benefit of the descendants of Xxxxxxx X. Xxxxxx.
2. Descendants of Xxxxxx Xxxxxx 1966 Trust u/a/d June 14, 1966,
between Xxxxx Xxxxxx, as Settlor and Xxxxxx X. Xxxxxx, as Trustee, for the
benefit of the descendants of Xxxxxx X. Xxxxxx.
3. Trust u/a/d December 15, 1976, between Xxxxx Xxxxxx and Xxxxxx X.
Xxxxxx, as Grantors, and Xxxxxxx X. Xxxxxx, as Trustee, for the benefit of Xxxx
Xxxxxx and Xxxxxxx Xxxxxx.
4. Trust u/a/d December 15, 1976, between Xxxxx Xxxxxx and Xxxxxx X.
Xxxxxx, as Grantors, and Xxxxxx X. Xxxxxx, as Trustee, for the benefit of Xxxxx
Xxxxxx and Xxxx Xxxxxx.
5. Trust u/a/d December 15, 1976, between Xxxxxxx X. Xxxxxx, as
Grantor, and Xxxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx, as Trustees, for the
benefit of Xxxx Xxxxxx and Xxxxxxx Xxxxxx.
6. Trust u/a/d December 15, 1976, between Xxxxxx X. Xxxxxx, as
Grantor, and Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx, as Trustees, for the
benefit of Xxxxx Xxxxxx and Xxxx Xxxxxx.
7. Trust u/a/d August 13, 1982, between Xxxxx Xxxxxx and Xxxxxx X.
Xxxxxx, as Grantors, and Xxxxxxx X. Xxxxxx, as Trustee, for the benefit of Xxxx
Xxxxxx and Xxxxxxx Xxxxxx.
8. Xxxxxxx X. Xxxxxx Generation-Skipping Securities Trust u/a/d
December 23, 1992, between Xxxxxxx X. Xxxxxx, as Grantor, and Xxxx X.
Xxxxxxxxxx, as Trustee.
9. Xxxxxxx X. Xxxxxx Grantor Retained Annuity Trust u/a/d November
30, 1992, between Xxxxxxx X. Xxxxxx, as Grantor, and Xxxx X. Xxxxxxxxxx, as
Trustee.
10. Xxxx Xxxxxx 1994 Family Trust u/a/d as of December 16, 1994,
between Xxxx Xxxxxx, as Settlor, and Xxxxxxx X. Xxxxxx and Xxxxx Xxxxxx, as
Trustees.
11. Xxxxxxx Xxxxxx 1994 Family Trust u/a/d as of December 14, 1994,
between Xxxxxxx Xxxxxx, as Settlor, and Xxxxxxx X. Xxxxxx and Xxxxx Xxxxxx, as
Trustees.
14
12. Trust u/a/d June 2, 1994, as amended, between Xxxxx Xxxxxx, as
Grantor, and Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx and Xxx X. Xxxxxx, as Trustees.
15
Schedule B
STOCKHOLDERS
Name of Stockholder Notice Address Copies to
------------------- -------------- ---------
Xxxxxxx X. Xxxxxx 000 Xxxxx Xxxxxx Weil, Gotshal & Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxx Xxxxxx
Telecopy: (000) 000-0000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
Xxxxxx X. Xxxxxx 000 Xxxxx Xxxxxx Xxxxxxxxx & Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxx Xxxxxx
Telecopy: (000) 000-0000 Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
Xxxxxx Guaranty Trust
Company of New York, as
pledgee of
Xxxxxx X. Xxxxxx
0 Xxxx 00xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxx
Telecopy: (000) 000-0000
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
Trustees of The Xxxxx Xxxxxx 1994 Xxxxxxx X. Xxxxxx Cravath, Swaine & Xxxxx
Trust 000 Xxxxx Xxxxxx 000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000 Attn: Xxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
Xxxxxx X. Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Xxx X. Xxxxxx, Esq.
Patterson, Belknap, Xxxx & Xxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
16
Name of Stockholder Notice Address Copies to
------------------- -------------- ---------
Xxxxxxx X. Xxxxxx 000 Xxxxx Xxxxxx Xxxxxxxxx & Xxxxxxxx
Xxx Xxxx, XX 00000 000 Xxxxx Xxxxxx
Telecopy: (000) 000-0000 Xxx Xxxx, XX 00000
Attn: Xxxxxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
Xxxx X. Xxxxxx 00 Xxxxxxxx Xxxx Xxxxxxxxx & Xxxxxxxx
Xxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Telecopy: (000) 000-0000 Xxx Xxxx, XX 00000
Attn: Xxxxxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
Xxxxx Xxxxxx 000 Xxxx 00xx Xxxxxx Xxxxx Xxxxxxx, Esq.
Xxx Xxxx, XX 00000 000 Xxxxxx Xxxx
Xxxxxxxx: Xxxx Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Xxxx Xxxxxx 0000 Xxxxxxxxxx Xxxxxx Xxxxx Xxxxxxx, Esq.
Xxx Xxxxxxxxx, XX 00000 000 Xxxxxx Xxxx
Telecopy: [to be supplied] Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
LAL Family Partners L.P. c/o Xxxxxxx X. Xxxxxx Xxxxxxxxx, Xxxxx & Xxxxxxxxx
000 Xxxxx Xxxxxx 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000 Attn: Xxxxx X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
Trustees of the Trust f/b/o Xxxx X. Xxxx X. Xxxxxxxxxx Debevoise & Xxxxxxxx
Lauder and Xxxxxxx X. Xxxxxx u/a/d 000 Xxxx Xxxxxx 000 Xxxxx Xxxxxx
December 15, 1976, created by Xxxxxxx Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Lauder, as Grantor Telecopy: (000) 000-0000 Attn: Xxxxxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
Xxxxx X. Xxxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
Trustee of the Trust f/b/o Aerin Xxxxxxx X. Xxxxxxx Patterson, Belknap, Xxxx & Xxxxx
Xxxxxx and Xxxx Xxxxxx u/a/d December 00 Xxxxxxxxxxx Xxxxx 1133 Avenue of the Americas
15, 1976, created by Xxxxx Xxxxxx and Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Xxxxxx X. Xxxxxx, as Grantors Telecopy: (000) 000-0000 Attn: Xxxxxxxxxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
Trustee of the Trust f/b/o Aerin Xxxxxxx X. Xxxxxxx Patterson, Belknap, Xxxx & Xxxxx
Xxxxxx and Xxxx Xxxxxx u/a/d December 00 Xxxxxxxxxxx Xxxxx 1133 Avenue of the Americas
15, 1976, created by Xxxxxx X. Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Lauder, as Grantor Telecopy: (000) 000-0000 Attn: Xxxxxxxxxxx Xxxxxx, Esq.
17
Name of Stockholder Notice Address Copies to
------------------- -------------- ---------
Telecopy: (000) 000-0000
Trustees of the 1992 Xxxxxxx X. Xxxxxxx X. Xxxxxx Xxxxxxxxx, Xxxxx & Xxxxxxxxx
Lauder Grantor Retained Annuity Trust 000 Xxxxx Xxxxxx 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000 Attn: Xxxxx X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
Xxxx X. Xxxxxx
00 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Xxxx X. Xxxxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Trustee of The Descendants of RSL Xxxxxx X. Xxxxxx Debevoise & Xxxxxxxx
1966 Trust 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000 Attn: Xxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
Lauder & Sons L.P. Xxxxxxx X. Xxxxxx Weil, Gotshal & Xxxxxx
000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000 Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
Xxxxxx X. Xxxxxx
000 Xxxxx Xxxxxx Xxxxxxxxx & Xxxxxxxx
Xxx Xxxx, XX 00000 000 Xxxxx Xxxxxx
Telecopy: (000) 000-0000 Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxx, Esq.
Xxxx X. Xxxxxxxxxx Telecopy: (000) 000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Patterson, Belknap, Xxxx & Tyler
Telecopy: (000) 000-0000 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx X. Xxxxxxx Attn: Xxxxxxxxxxx Xxxxxx, Esq.
00 Xxxxxxxxxxx Xxxxx Telecopy: (000) 000-0000
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000 Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx X. Xxxxxx, Esq. Xxx Xxxx, XX 00000
Patterson, Belknap, Xxxx & Xxxxx Attn: Xxxxxx X. Xxxxxx, Esq.
1133 Avenue of the Americas Telecopy: (000) 000-0000
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
18
Exhibit A
[DATE]
The Xxxxx Xxxxxx Companies Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to that certain Stockholders' Agreement
(the "Agreement"), dated [o], 1995, by and among Xxxxxxx X. Xxxxxx, Xxxxxx X.
Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xxxxx Xxxxxx, Xxxx Xxxxxx, LAL Family
Partners, L.P., Lauder & Sons L.P., the trustees of the various trusts set forth
on Schedule A thereto, and The Xxxxx Xxxxxx Companies Inc. Capitalized terms
used herein shall have the meanings ascribed to them in the Agreement.
Pursuant to Section 2.2 of the Agreement, the undersigned
hereby agrees that as a condition to the Transfer of Shares to the undersigned,
the undersigned shall be bound by all of the terms of the Agreement, as amended
through the date hereof, to the same extent as a Stockholder, and the
undersigned shall hereafter be a Stockholder under the Agreement. Set forth
[below][on the attached schedule] are the names and addresses for notices and
copies which should be added to Schedule B to the Agreement.
Very truly yours,
---------------------------
[NAME]
19
