REVLON ESCROW CORP.
8-1/8% Senior Notes due 2006
8-5/8% Senior Subordinated Notes due 2008
To Be Assumed By
REVLON CONSUMER PRODUCTS CORPORATION
REGISTRATION AGREEMENT
January 28, 1998
BEAR, XXXXXXX & CO. INC.
XXXXXX BROTHERS INC.
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
Revlon Escrow Corp., a Delaware corporation ("Escrow Corp."),
proposes to issue and sell to Bear, Xxxxxxx & Co. Inc. and Xxxxxx Brothers Inc.
(the "Initial Purchasers"), upon the terms set forth in a purchase agreement of
even date herewith (the "Purchase Agreement"), its 8-1/8% Senior Notes due 2006
(the "Senior Notes") and its 8-5/8% Senior Subordinated Notes due 2008 (the
"Senior Subordinated Notes" and, together with the Senior Notes, the "Notes").
Revlon Consumer Products Corporation, a Delaware corporation ("Revlon"), will
assume the obligations of the Issuer under the Notes and the related Indentures
upon consummation of the redemptions described in the Offering Memorandum.
Unless otherwise indicated or unless context otherwise requires, all references
in this Agreement to the "Issuer" refer to (i) prior to the assumption of the
Notes by Xxxxxx, Escrow Corp., as the initial obligor of the Notes, (ii) after
the assumption of the Senior Notes but before the assumption of the Senior
Subordinated Notes by Revlon, Revlon, as the successor obligor of the Senior
Notes, and Escrow Corp., as the initial obligor of the Senior Subordinated
Notes, and (iii) after the assumption of the Notes by Revlon, Revlon, as the
successor obligor of 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, each of the Issuer and Revlon agree
with you, for the benefit of the holders of the Notes (including the Initial
Purchasers) (the "Holders"), as follows:
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1. Registered Exchange Offer. Escrow Corp. and Revlon shall,
at their cost, prepare and, not later than 45 days after the Closing Date (or,
if the 45th day is not a business day, the first business day thereafter)
(March 19, 1998, assuming the Closing Date is February 2, 1998), 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 (i) the Senior Notes, a like principal
amount of debt securities (the "Senior Exchange Notes") and (ii) the Senior
Subordinated Notes, a like principal amount of debt securities (the "Senior
Subordinated Exchange Notes" and, together with the Senior Exchange Notes, the
"Exchange Notes") of the Issuer with terms substantially identical in all
material respects to the Notes (except that the Exchange Notes will not contain
terms with respect to transfer restrictions and interest rate increases), shall
use their best efforts to cause the Exchange Offer Registration Statement to
become effective under the 1933 Act by 150 days after the Closing Date (or, if
the 150th day is not a business day, the first business day thereafter) (July
2, 1998, assuming the Closing Date is February 2, 1998) and shall use their
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. Escrow Corp. and Revlon shall be
deemed not to have used their best efforts to keep the Exchange Offer
Registration Statement effective during the Exchange Offer Registration Period
if either Escrow Corp. or Revlon 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 Escrow Corp. or Revlon in good
faith and for valid business reasons (not including avoidance of the Issuer's
or Revlon's obligations hereunder), including, but not limited to, the
acquisition or divestiture of assets, so long as Escrow Corp. and Revlon
promptly thereafter comply with the requirements of Section 3(j) hereof, if
applicable. The Exchange Notes will be issued under the applicable Indentures.
Upon the effectiveness of the Exchange Offer Registration
Statement, the Issuer shall promptly commence
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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 Escrow Corp. or Revlon
within the meaning of the 1933 Act, acquires the Exchange Notes in the ordinary
course of such Holder's business and has no arrangements with any person to
participate in the distribution of the Exchange Notes) to trade such Exchange
Notes from and after their receipt without any limitations or restrictions
under the 1933 Act and without material restrictions under the securities laws
of a substantial proportion of the several states of the United States.
Notwithstanding the foregoing, the Initial Purchasers, Escrow Corp. and Revlon
acknowledge that, pursuant to current interpretations by the Commission's staff
of Section 5 of the 1933 Act, and in the absence of an applicable exemption
therefrom, (i) each Holder (including any Initial Purchaser) which is a
broker-dealer electing to exchange the Notes, acquired for its own account as a
result of market making activities or other trading activities, for the
Exchange Notes (an "Exchanging Dealer"), is required to deliver a prospectus
containing the information set forth in Annex A hereto on the 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 and (ii) each Initial Purchaser which elects to sell Exchange
Notes acquired in exchange for the Notes constituting any portion of an unsold
allotment is required to deliver a prospectus containing the information
required by Items 507 and/or 508 of Regulation S-K under the 1933 Act, as
applicable, in connection with such a sale.
If, upon consummation of the Registered Exchange Offer, any
Initial Purchaser holds the Notes constituting any portion of an unsold
allotment acquired by it as part of its initial distribution, the Issuer,
simultaneously with the delivery of the Exchange Notes pursuant to the
Registered Exchange Offer, shall issue and deliver to such Initial Purchaser
upon the written request of such Initial Purchaser, in exchange (the "Private
Exchange") for the Notes held by such Initial Purchaser, a like principal
amount of the Exchange Notes issued under the Indentures 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").
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The Issuer and Revlon will use reasonable efforts to cause the Private Exchange
Notes to bear the same CUSIP number as the Exchange Notes.
In connection with the Registered Exchange Offer, the Issuer
shall:
(a) mail to each Holder 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
(e) otherwise comply in all respects with all
applicable laws.
As soon as practicable after the close of the Registered
Exchange Offer or the Private Exchange, as the case may be, the Issuer shall:
(a) accept for exchange all Notes tendered and not
validly withdrawn pursuant to the Registered Exchange
Offer and the Private Exchange;
(b) deliver to the Trustee for cancelation 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 Indentures, as applicable, will provide that the Exchange
Notes will not be subject to the transfer restrictions applicable to the Notes
set forth in the Indentures and that all Securities issued under the
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applicable Indenture will vote and consent together on all matters as one class
and that none of the Securities issued under the applicable Indenture will have
the right to vote or consent as a class separate from one another on any
matter.
Notwithstanding any other provisions hereof, the Issuer shall
ensure that (i) any Exchange Offer Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto
complies in all material respects with the 1933 Act and the rules and
regulations thereunder, (ii) any Exchange Offer Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any prospectus forming part of any Exchange Offer Registration Statement,
and any supplement to such prospectus, does not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements, in the light of the circumstances under which they were made, not
misleading.
Each Holder participating in the Registered Exchange Offer
shall be required to represent to the Issuer that at the time of the
consummation of the Registered Exchange Offer (i) any Exchange Notes received
by such Holder will be acquired in the ordinary course of business, (ii) such
Holder will have no arrangements or understanding with any person to
participate in the distribution of the Notes or the Exchange Notes within the
meaning of the 1933 Act, (iii) such Holder is not an "affiliate," as defined in
Rule 405 of the 1933 Act, of the Issuer or Revlon or if it is an affiliate,
such Holder acknowledges that it must comply with the registration and
prospectus delivery requirements of the 1933 Act to the extent applicable, (iv)
if such Holder is not a broker-dealer, that it is not engaged in, and does not
intend to engage in, a distribution of the Exchange Notes and (v) if such
Holder is a broker-dealer, that it will receive Exchange Notes for its own
account in exchange for the Notes that were acquired as a result of
market-making activities or other trading activities and that it will be
required to acknowledge that it will deliver a prospectus in connection with
any resale of such Exchange Notes.
2. Shelf Registration. If, (i) because of any change in law
or applicable interpretations thereof by the Commission's staff, the Issuer
determines that it is not permitted to effect the Registered Exchange Offer as
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contemplated by Section 1 hereof, (ii) for any other reason the Registered
Exchange Offer is not consummated by the 180th day after the Closing Date (or,
if such day is not a business day, the first business day thereafter) (August
3, 1998, assuming the Closing Date is February 2, 1998), (iii) any Initial
Purchaser so requests with respect to the Notes (or Private Exchange Notes)
held by it following consummation of the Registered Exchange Offer, (iv) any
Holder (other than an Exchanging Dealer) is not eligible to participate in the
Registered Exchange Offer or, in the case of any Holder (other than an
Exchanging Dealer) or Initial Purchaser that participates in the Registered
Exchange Offer, such Holder or Initial Purchaser does not receive freely
tradeable Exchange Notes in exchange for the exchanged Notes (in the case of an
Initial Purchaser constituting any portion of an unsold allotment) (it being
understood that the requirement that an Initial Purchaser deliver a prospectus
in connection with sales of the Exchange Notes acquired in the Registered
Exchange Offer in exchange for the Notes acquired as a result of market-making
activities or other trading activities, shall not result in such Exchange Notes
not being "freely tradeable" for purposes of this Section 2) or (v) if the
Issuer so elects, the following provisions shall apply:
(a) The Issuer shall, at its cost, as promptly as practicable
file with the Commission and thereafter shall use its best efforts to cause to
be declared effective a shelf registration statement on an appropriate form
under the 1933 Act relating to the offer and sale of the Notes by the Holders
or the Exchange Notes or the Private Exchange Notes by the Initial Purchasers,
as applicable, from time to time in accordance with the methods of distribution
elected by such Holders or the Initial Purchasers, as applicable, and set forth
in such registration statement (hereafter, a "Shelf Registration Statement"
and, together with any Exchange Offer Registration Statement, a "Registration
Statement").
(b) The Issuer shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the prospectus
forming part thereof to be usable by Holders or the Initial Purchasers, as
applicable, for a period of two years from the date the Shelf Registration
Statement is declared effective by the Commission or such shorter period that
will terminate when all the Notes covered by the Shelf Registration Statement
have been sold pursuant to the Registration Statement or when, in the opinion
of outside counsel to the Issuer, which is reasonably satisfactory in form and
substance to counsel
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for the Initial Purchasers, all such Notes may be sold without registration
under the 1933 Act and unlegended certificates representing the Securities may
be given to the holders thereof (in any such case, such period being called the
"Shelf Registration Period"). The Issuer shall be deemed not to have used its
best efforts to keep the Shelf Registration Statement effective during the
requisite period if either Escrow Corp. or Revlon voluntarily takes any action
that would result in Holders of Securities covered thereby not being able to
offer and sell such Securities during that period, unless (i) such action is
required by applicable law, or (ii) such action is taken by Escrow Corp. or
Revlon in good faith and for valid business reasons (not including avoidance of
Escrow Corp's and Revlon's obligations hereunder), including, but not limited
to, the acquisition or divestiture of assets, so long as the Issuer and Revlon
promptly thereafter comply with the requirements of Section 3(j) hereof, if
applicable.
(c) Notwithstanding any other provisions hereof, the Issuer
shall ensure that (i) any Shelf Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto
complies in all material respects with the 1933 Act and the rules and
regulations thereunder, (ii) any Shelf Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any
prospectus forming part of any Shelf Registration Statement, and any supplement
to such prospectus, does not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements, in the
light of the circumstances under which they were made, not misleading.
3. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Issuer shall (i) furnish to each Initial Purchaser,
prior to the filing thereof with the Commission, a copy of the Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and shall use its best efforts to reflect in each
such document, when so filed with the Commission, such 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
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Offer" section, and in Annex C hereto in the "Plan of Distribution" section of
the prospectus forming a part of the Exchange Offer Registration Statement, and
include the information set forth in Annex D hereto in the Letter of
Transmittal delivered pursuant to the Registered Exchange Offer; (iii) if
requested by an Initial Purchaser, include the information required by Items
507 and/or 508 of Regulation S-K under the 1933 Act, as applicable, in the
prospectus forming a part of the Registration Statement; and (iv) in the case
of a Shelf Registration Statement, include the names of the Holders who propose
to sell Securities pursuant to the Shelf Registration Statement, as selling
security holders.
(b) (1) The Issuer shall advise you (which notice pursuant to
clause (ii) shall be accompanied by an instruction to suspend the use of the
prospectus until the requisite changes have been made) and, in the case of a
Shelf Registration Statement, the Holders of Securities included therein, and,
in the case of an Exchange Offer Registration Statement, any Exchanging Dealer
which has provided in writing to the Issuer a telephone or facsimile number or
address for notices, and, if requested by you or any such Holder or Exchanging
Dealer, confirm such advice in writing:
(i) when any Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement
or any post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the prospectus included
therein or for additional information.
(2) The Issuer shall advise you and, in the case of a Shelf
Registration Statement, Holders of Securities included therein, and, in the
case of an Exchange Offer Registration Statement, any Exchanging Dealer which
has provided in writing to the Issuer a telephone or facsimile number or
address for notices, and, if requested by you or any such Holder or Exchanging
Dealer, confirm such advice in writing;
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
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(ii) of the receipt by the Issuer or Revlon 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 Issuer shall make every reasonable effort to obtain
the withdrawal of any order suspending the effectiveness of any Registration
Statement at the earliest possible time.
(d) The Issuer shall furnish to each Holder of Securities
included within the coverage of any Shelf Registration Statement (including any
Exchanging Dealer which so requests in writing or any Initial Purchaser),
without charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
and, if the Holder so requests in writing, all exhibits (including those
incorporated by reference).
(e) The Issuer shall, during the Shelf Registration Period,
deliver to each Holder of Securities included within the coverage of any Shelf
Registration Statement, without charge, as many copies of the prospectus
(including each preliminary prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request; and the Issuer consents to the use of the prospectus or any amendment
or supplement thereto by each of the selling Holders of Securities in
connection with the offering and sale of the Securities covered by the
prospectus or any amendment or supplement thereto.
(f) The Issuer shall furnish to each Exchanging Dealer or
Initial Purchaser, as applicable, which so requests, without charge, at least
one copy of the Exchange Offer Registration Statement and any post-effective
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amendment thereto, including financial statements and schedules, and, if the
Exchanging Dealer or Initial Purchaser, as applicable, so requests in writing,
all exhibits (including those incorporated by reference).
(g) The Issuer shall, during the Exchange Offer Registration
Period, promptly deliver to each broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "1934 Act")) of Exchange Notes received by such broker-dealer in the
Registered Exchange Offer (a "Participating Broker-Dealer") and such other
persons as may be required to deliver a prospectus following the Registered
Exchange Offer, without charge, as many copies of the prospectus included in
such Exchange Offer Registration Statement and any amendment or supplement
thereto as such person may reasonably request for delivery by such person in
connection with a sale of Exchange Notes received by it pursuant to the
Registered Exchange Offer; and the Issuer consents to the use of the prospectus
or any amendment or supplement thereto by any such Participating Broker-Dealer
or other person as aforesaid.
(h) Prior to any public offering of Securities pursuant to
any Registration Statement, the Issuer shall register or qualify or cooperate
with the Holders of Securities included therein and their respective counsel in
connection with the registration or 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 neither Escrow Corp. nor Revlon shall be required to
qualify generally to do business in any jurisdiction where they are not then so
qualified or to take any action which would subject them to general service of
process or to taxation in any such jurisdiction where they are not then so
subject.
(i) The Issuer shall cooperate with the Holders of Securities
to facilitate the timely preparation and delivery of certificates representing
the Securities to be sold pursuant to any Shelf Registration Statement free of
any restrictive legends and in such denominations and registered in such names
as Holders may request prior to sales of the Securities pursuant to such Shelf
Registration Statement.
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(j) Upon the occurrence of any event contemplated by
paragraph (b)(2)(iii) above, the Issuer shall promptly prepare a post-effective
amendment to the Registration Statement or a supplement to the related
prospectus or file any other required document so that, as thereafter delivered
to purchasers of the Securities included therein, the prospectus will not
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If the Issuer
notifies the Initial Purchasers, the Holders and any known Participating
Broker-Dealer in accordance with paragraphs (1)(ii) or (2)(i) through (iii) of
Section 3(b) above to suspend the use of the prospectus until the requisite
changes to the prospectus have been made, then the Initial Purchasers, the
Holders and any such Participating Broker-Dealers shall suspend use of such
prospectus.
(k) Not later than the effective date of the applicable
Registration Statement, the Issuer shall provide a CUSIP number for the Notes,
the Exchange Notes or the Private Exchange Notes, as the case may be, and
provide the 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 (it being expressly
understood that the Exchange Notes will continue to be held in book-entry form
in the same manner as the Notes).
(l) The Issuer shall comply with all applicable rules and
regulations of the Commission and shall make generally available to its
security holders as soon as practicable after the effective date of the
applicable Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the 1933 Act.
(m) The Issuer shall cause the Indentures 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 either of the Indentures, the Issuer shall appoint a new trustee
thereunder pursuant to the applicable provisions of the relevant Indenture.
(n) The Issuer may require each Holder of Securities to be
sold pursuant to any Shelf Registration Statement to furnish to the Issuer such
information regarding the Holder and the distribution of such Securities as the
Issuer may from time to time reasonably require for inclusion in such
Registration Statement, and the Issuer may
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exclude from such Registration Statement the Securities of any Holder that
fails to furnish such information within a reasonable time after receiving such
request.
(o) The Issuer shall enter into such customary agreements
(including if requested an underwriting agreement in customary form) and take
all such other action, if any, as any Holder shall reasonably request in order
to facilitate the disposition of the Securities pursuant to any Shelf
Registration Statement.
(p) In the case of any Shelf Registration Statement, the
Issuer shall (i) make reasonably available for inspection by the Holders, and
any underwriter participating in any disposition pursuant to a Registration
Statement, and any attorney, accountant or other agent retained by the Holders
or any such underwriter, all relevant financial and other records, pertinent
corporate documents and properties of the Issuer and (ii) cause the Issuer's
officers, directors and employees to supply all relevant information reasonably
requested by the Holders or any such underwriter, attorney, accountant or agent
in connection with any such Registration Statement.
(q) In the case of any Exchange Offer Registration Statement,
the Issuer shall (i) make reasonably available for inspection by the Initial
Purchasers, but in each case only in such firm's capacity as an Exchanging
Dealer and with the express understanding that each such firm shall be acting
solely for itself and not on behalf of any other party, including, without
limitation, any other Exchanging Dealer, all relevant financial and other
records, pertinent corporate documents and properties of the Issuer and (ii)
cause the Issuer's officers, directors and employees to supply all information
reasonably requested by any of them.
(r) In the case of any Shelf Registration Statement, the
Issuer, if requested by any Holder, shall cause (x) its counsel to deliver an
opinion relating to the Securities included within the coverage of such Shelf
Registration Statement in customary form, (y) its officers to execute and
deliver all customary documents and certificates requested by any underwriters
of the Securities and (z) its independent public accountants to provide to the
selling Holders and any underwriter therefor a comfort letter in customary
form.
(s) In the case of any Exchange Offer Registration
Statement, the Issuer, if requested by the
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Initial Purchasers, but in each case only in such firm's capacity as an
Exchanging Dealer and with the express understanding that each such firm shall
be acting solely for itself and not on behalf of any other party, including,
without limitation, any other Exchanging Dealer, in connection with any
prospectus delivery as contemplated in paragraph (g) above, shall use its best
efforts to cause, on and as of the effective date of the Exchange Offer
Registration Statement, (x) its counsel to deliver an opinion relating to the
Exchange Offer Registration Statement and the Exchange Notes in customary form,
(y) its officers to execute and deliver all customary documents and
certificates requested and (z) its independent public accountants to provide a
comfort letter in customary form, subject to receipt of appropriate
documentation (including the delivery of a customary representation letter), as
contemplated by Statement on Auditing Standards No. 72.
(t) If a Registered Exchange Offer or a Private Exchange is
to be consummated, upon delivery of the Notes by Holders to the Issuer (or to
such other person as directed by the Issuer) in exchange for the Exchange Notes
or the Private Exchange Notes, as the case may be, the Issuer shall mark, or
cause to be marked, on the Notes so exchanged that such Notes are being
canceled in exchange for the Exchange Notes or the Private Exchange Notes, as
the case may be; in no event shall the Notes be marked as paid or otherwise
satisfied.
(u) The Issuer shall pay interest on the Notes for failure to
comply with its obligations under Section 1 or Section 2, as applicable, in
accordance with the terms of the Notes.
4. Registration Expenses. Escrow Corp. and Revlon, severally
and jointly, 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.
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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, Escrow
Corp. and Revlon, severally and jointly, 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 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 Issuer or
Revlon 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,
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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 Issuer or Revlon (prior to
the date of mailing by such Holder of the applicable confirmation) with a
sufficient number of copies of the final prospectus as so amended or
supplemented.
(b) In the event of a Shelf Registration Statement, each
Holder shall indemnify and hold harmless the Issuer, its directors and officers
and each person, if any, who controls the Issuer within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
Section 5(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment or supplement thereto) in reliance on and in
conformity with written information furnished to the Issuer by such Holder
expressly for use in the Registration Statement (or in such amendment or
supplement); provided, however, that no such Holder shall be liable for any
indemnity claims hereunder in excess of the amount of net proceeds received by
such Holder from the sale of Securities pursuant to the Registration Statement.
(c) Each indemnified party shall give notice 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
16
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 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, Escrow Corp. and Revlon, on
the one hand, and the applicable Holder or Holders, on the other hand, shall
contribute to the aggregate losses, liabilities, claims, damages and expenses
of the nature contemplated by said indemnity incurred by Escrow Corp., Revlon,
and such Holder or Holders, as incurred, in such proportions that Escrow Corp.
and Revlon is responsible for that portion represented by the percentage that
the aggregate consideration received by Escrow Corp. or Revlon from the sale by
it of the Securities sold by such Holder bears to the aggregate principal
amount of Securities sold by such Holder and such Holder 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
17
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 Escrow Corp. or
Revlon and each person, if any, who controls Escrow Corp. or Revlon within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as Escrow Corp. or Revlon.
(e) The agreements contained in this Section 5 shall survive
the sale of the Securities pursuant to a Registration Statement and shall
remain in full force and effect, regardless of any termination or cancelation
of this Agreement or any investigation made by or on behalf of any indemnified
party.
6. Underwritten Registrations. (a) "Transfer Restricted
Notes" means each Security until (i) the date on which such Transfer Restricted
Note has been exchanged by a person other than a broker-dealer for a freely
transferable Exchange Note in the Registered Exchange Offer, (ii) following the
exchange by a broker-dealer in the Registered Exchange Offer of a Transfer
Restricted Note for an Exchange Note, the date on which such Exchange Note is
sold to a purchaser who receives from such broker-dealer on or prior to the
date of such sale a copy of the prospectus contained in the Exchange Offer
Registration Statement, (iii) the date on which such Transfer Restricted Note
has been effectively registered under the 1933 Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the date on which such
Transfer Restricted Note is distributed to the public pursuant to Rule 144
under the 1933 Act or is saleable pursuant to Rule 144(k) under the 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,
18
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
7. Release of Escrow Corp. Upon consummation of the
assumption by Revlon of all of Escrow Corp's obligations under the Notes and
the related Indentures, Escrow Corp. shall be discharged from all obligations
and covenants under this Agreement.
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
Issuer and Revlon have obtained the written consent of Holders of a majority in
aggregate principal amount of the Securities.
(b) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier guaranteeing overnight
delivery:
(i) if to a Holder, at the most current address given by such
Holder to the Issuer in accordance with the provisions of this Section
6(b), which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar under the
Indentures, with a copy in like manner to the Initial Purchasers;
(ii) if to the Initial Purchasers, initially at the respective
addresses set forth in the Purchase Agreement with copies to the
parties specified therein; and
(iii) if to the Issuer, initially at its respective addresses
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, the Issuer or Revlon by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
(c) Successors and Assigns. Subject to Section 7, this
Agreement shall be binding upon Escrow Corp. and Xxxxxx and each of their
successors and assigns.
19
(d) Counterparts. This agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(e) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
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 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 Issuer. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
is required hereunder, Securities held by the Issuer or any of its affiliates
(other than subsequent Holders of Securities if such subsequent Holders are
deemed to be affiliates solely by reason of their holdings of such Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
(i) No Inconsistent Agreements. Escrow Corp. and Revlon have
not, as of the date hereof, entered into, nor shall they, on or after the date
hereof, enter into, any agreement with respect to their securities that is
inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(j) Copies of Agreement. Escrow Corp. shall provide a copy of
this Agreement to prospective purchasers of the Notes identified to them by the
Initial Purchasers upon request.
20
Please confirm that the foregoing correctly sets forth the agreement
between the Issuer and Revlon and you.
Very truly yours,
REVLON ESCROW CORP.
by /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President and
Treasurer
REVLON CONSUMER PRODUCTS
CORPORATION
by /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President,
Corporate Finance and
Investor Relations
CONFIRMED AND ACCEPTED
as of the date first above written:
BEAR, XXXXXXX & CO. INC.
by /s/ Xxxx Xxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxx
Title: Senior Managing Director
XXXXXX BROTHERS INC.
by /s/ Xxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxx
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 the Notes where such
Notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Issuer has agreed that, for a
period of 180 days after the Expiration Date (as defined herein), it will make
this Prospectus available to any broker-dealer for use in connection with any
such resale. See "Plan of Distribution".
A-1
ANNEX B TO
REGISTRATION AGREEMENT
Each broker-dealer that receives Exchange Notes for its own
account in exchange for the Notes, where such Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See "Plan of Distribution".
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 Issuer has agreed
that for a period of 180 days after the Expiration Date, it will make this
Prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with any such resale. In addition, until , 199 , all
dealers effecting transactions in the Exchange Notes may be required to deliver
a prospectus.(1)
The Issuer will not receive any proceeds from any sale of
Exchange Notes by broker-dealers. Exchange Notes received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Notes or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such
Exchange Notes. Any broker-dealer that resells Exchange Notes that were
received by it for its own account pursuant to the Exchange offer and any
broker or dealer that participates in a distribution of such Exchange Notes may
be deemed to be an "underwriter" within the meaning of the 1933 Act and any
profit on any such resale of Exchange Notes and any commissions or concessions
received by any such persons may be deemed to be underwriting compensation
under the 1933 Act. The Letter of Transmittal states that by acknowledging that
it will deliver and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the 1933 Act.
-----------
(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
Issuer will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer that requests
such documents in the Letter of Transmittal. The Issuer has agreed to pay all
expenses incident to the Exchange Offer other than commissions or concessions
of any brokers or dealers and will indemnify the holders of the Notes
(including any broker-dealers) against certain liabilities, including
liabilities under the 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 market-making
or other trading activities and acknowledges that it will deliver a prospectus
in connection with any resale of such Exchange Notes; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the 1933 Act.
D-1
