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EXHIBIT 10.129
VOTING AGREEMENT
between
XXXX XXXX EQUITY PARTNERS, L.P.
and
BASTION CAPITAL FUND, L.P.
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Dated September 27, 1996
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TABLE OF CONTENTS
Page
1. Definitions..................................................................................... 1
2. Voting Agreement................................................................................ 2
2.1 General.............................................................................. 2
2.2 Election of Directors................................................................ 2
2.3 Termination of Agreement. .......................................................... 2
3. Miscellaneous................................................................................... 3
3.1 Notices.............................................................................. 3
3.2 Amendment and Waiver. .............................................................. 3
3.3 Headings............................................................................. 4
3.4 Severability......................................................................... 4
3.5 Entire Agreement..................................................................... 4
3.6 Term of Agreement.................................................................... 4
3.7 GOVERNING LAW........................................................................ 4
3.8 Successors and Assigns............................................................... 4
3.9 Further Assurances................................................................... 4
3.10 Counterparts......................................................................... 5
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VOTING AGREEMENT
VOTING AGREEMENT, dated as of September 27, 1996 (this
"AGREEMENT"), between Xxxx Xxxx Equity Partners, L.P., a Delaware limited
partnership ("XXXX XXXX"), and Bastion Capital Fund, L.P., a Delaware limited
partnership ("BASTION").
WHEREAS, on the date hereof, Renaissance Cosmetics, Inc., a
Delaware corporation (the "COMPANY"), (a) desires to sell through CIBC Wood
Gundy Securities Corp. (the "INITIAL PURCHASER"), and Bastion desires to
purchase from the Company through the Initial Purchaser, approximately 15,000
units consisting of approximately 15,000 shares of 14% Senior Redeemable
Preferred Stock, Series B, par value $.01 per share, of the Company, and
Warrants to purchase shares of Common Stock (as defined herein), of the Company,
and (b) desires to sell, and Bastion desires to purchase, 51,959 shares of
Common Stock, of the Company (collectively, the "SECURITIES");
WHEREAS, it is a condition precedent to Bastion's obligation
to purchase the Securities that Xxxx Xxxx shall have entered into this
Agreement; and
WHEREAS, Xxxx Xxxx owns approximately 78% of the outstanding
Common Stock of the Company as of the date hereof and deems it in the best
interests of Xxxx Xxxx and the Company to enter into this Agreement in order to
induce Bastion to purchase the Securities.
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein, the adequacy of which are hereby acknowledged, and
intending to be legally bound, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such Person
(with the understanding that such term, by definition, shall include the direct
and indirect general partners of a Person that is a partnership). For the
purposes of this definition, "control," when used with respect to any Person,
means the power to direct or cause the direction of the management or policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Board of Directors" means the Board of Directors of the
Company.
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"Common Stock" means Common Stock, par value $.01 per share,
of the Company or any other capital stock of the Company into which such stock
is reclassified or reconstituted.
"Person" means any individual, firm, corporation, partnership,
limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, governmental body or other entity of any
kind.
"Shares" means, with respect to Xxxx Xxxx, all shares, whether
now owned or hereafter acquired, of Common Stock owned by it.
2. Voting Agreement.
2.1 General. From and after the execution of this
Agreement, Xxxx Xxxx shall vote its Shares at any regular or special meeting of
Stockholders of the Company (a "STOCKHOLDERS MEETING") or in any written consent
executed and in lieu of such a meeting of Stockholders (a "WRITTEN CONSENT"),
and shall take all other actions necessary, to give effect to the provisions of
this Agreement (including, without limitation, Section 2.2 hereof).
2.2 Election of Directors. (a) Xxxx Xxxx agrees that
if (i) the holders of the Company's 14% Senior Redeemable Preferred Stock,
Series B and the 14% Senior Redeemable Preferred Stock, Series C, acting
together as a single series and class, do not select a nominee designated by
Bastion for director on the Company's Board of Directors in accordance with
Section 5 of the Certificates of Designation for such preferred stock and (ii)
such nominee shall not have been elected as a director on the Company's Board of
Directors, Xxxx Xxxx shall vote the Shares owned by it in favor of electing as a
director on the Company's Board of Directors one person selected by Bastion (the
"BASTION NOMINEE"). Xxxx Xxxx'x agreement to vote in favor of the Bastion
Nominee for director to the Company's Board of Directors is personal to Bastion
and nontransferable.
(b) If during the Term of this Agreement,
Xxxx Xxxx shall cease to own a majority of the outstanding shares of Common
Stock, Xxxx Xxxx shall promptly thereafter use commercially reasonable efforts
(not to include the expenditure of money other than incidental expenses), to
obtain the vote in favor of the Bastion Nominee of holders of Common Stock that
are officers of the Company. Notwithstanding the foregoing, Bastion acknowledges
and agrees that Xxxx Xxxx does not have the power or ability, by contract or
otherwise, to cause any stockholders of the Company, including officers of the
Company, to vote their shares of Common Stock in any particular manner including
without limitation, in favor of the Bastion Nominee.
2.3 Termination of Agreement. Notwithstanding
anything herein to the contrary, unless earlier terminated under Section 3.6
hereof, from and
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after the date that Bastion and its Affiliates own in the aggregate Securities
representing less than 75% of the value of the Securities acquired by them from
the Company and from the Initial Purchaser on the date hereof, Xxxx Xxxx'x
obligations under this Agreement shall terminate and be of no further force and
effect; provided, however, that the number of Securities owned by Bastion on the
date hereof for purposes of this Section 2.3 shall be adjusted for any dividend,
subdivision, combination or reclassification of the Securities or any merger or
consolidation of the Company with or into any other Person and Bastion shall be
deemed to own on the date hereof that number of Securities or other Securities
which it was entitled to receive as a result of such dividend, subdivision,
combination, reclassification, merger or consolidation.
3. Miscellaneous.
3.1 Notices. All notices or other communications
required or permitted hereunder shall be in writing and shall be delivered
personally, telecopied or sent by certified, registered or express mail, postage
prepaid. Any such notice shall be deemed given when so delivered personally,
telecopied or sent by certified, registered or express mail or, if mailed, five
days after the date of deposit in the United States mail, as follows (a) if to
Xxxx Xxxx to Xxxx Xxxx & Company, Three Pickwick Plaza, Greenwich, CT 06830,
Attention: Xxxxxxx X. Xxxx, with a copy to Xxxx, Weiss, Rifkind, Xxxxxxx &
Xxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
Xxxx X. Xxxxxxxx, Esq. and (b) if to Bastion, to Bastion Capital Fund, L.P.,
Suite 2960, 0000 Xxxxxx xx Xxxxx, Xxx Xxxxxxx, XX 00000, Attention: Xxxxxxxxx
Xxxx, with a copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx, 000 X. Xxxxx Xxxxxx,
Xxx Xxxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxxxxx, Esq.
Any party may, by notice given in accordance with this Section 3.1, designate
another address or person for receipt of notices hereunder.
3.2 Amendment and Waiver.
(a) No failure or delay on the part of any
party hereto in exercising any right, power or remedy hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to the
parties hereto at law, in equity or otherwise.
(b) Any amendment, supplement or
modification of or to any provision of this Agreement, any waiver of any
provision of this Agreement, and any consent to any departure by any party from
the terms of any provision of this Agreement, shall be effective only if it is
made or given in writing
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and signed by each of the parties hereto, or in the case of waivers or consents
by the party waiving the provision or consenting to the departure, and only in
the specific instance and for the specific purpose for which it is made or
given.
3.3 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
3.4 Severability. If any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired,
unless the provisions held invalid, illegal or unenforceable shall substantially
impair the benefits of the remaining provisions hereof.
3.5 Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
3.6 Term of Agreement. This Agreement shall become
effective upon the closing of the sale of the Securities by the Company and the
Initial Purchaser to Bastion and shall terminate ten years from the date hereof.
3.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
3.8 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
permitted successors and assigns (but shall not bind any transferee of the
Shares from Xxxx Xxxx). This Agreement is not assignable without the consent of
all of the parties hereto.
3.9 Further Assurances. Each party shall execute such
documents, instruments and certificates, and take such further actions, as may
be reasonably required to carry out the intent of this Agreement.
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3.10 Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, and all of
which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed, or have
caused to be executed, this Agreement on the date first written above.
XXXX XXXX EQUITY PARTNERS, L.P.
By:_____________________________
Name:
Title:
BASTION CAPITAL FUND, L.P.
By:_____________________________
Name:
Title:
