Exhibit 10.30
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INVESTMENT AGREEMENT
by and between
Revlon, Inc.
and
Mafco Holdings Inc.
Dated February 20, 2004
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TABLE OF CONTENTS
PAGE
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SECTION 1. DEFINITIONS................................................................3
SECTION 2. EXCHANGE OFFER.............................................................7
2.1 INVESTOR EQUITY CONTRIBUTION.....................................................7
2.2 INVESTOR STOCK SUBSCRIPTION......................................................7
2.3 USE OF PROCEEDS..................................................................7
2.4 CONDITIONS.......................................................................7
SECTION 3. FIRST RIGHTS OFFERING......................................................8
3.1 THE FIRST RIGHTS OFFERING........................................................8
3.2 SUBORDINATION OF FIRST BASIC SUBSCRIPTION PRIVILEGE..............................9
3.3 USE OF PROCEEDS..................................................................9
3.4 CONDITIONS.......................................................................9
SECTION 4. SECOND RIGHTS OFFERING....................................................10
4.1 THE SECOND RIGHTS OFFERING......................................................10
4.2 BACK-STOP OF THE SECOND RIGHT OFFERING..........................................12
4.3 USE OF PROCEEDS.................................................................12
4.4 CONDITIONS......................................................................12
SECTION 5. THIRD STAGE OFFERINGS.....................................................12
5.1 THIRD STAGE OFFERINGS...........................................................12
5.2 BACK-STOP OF THE THIRD STAGE OFFERINGS..........................................12
5.3 USE OF PROCEEDS.................................................................13
5.4 CONDITIONS......................................................................13
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR............................13
6.1 ORGANIZATION....................................................................13
6.2 DUE AUTHORIZATION...............................................................13
6.3 DUE EXECUTION; ENFORCEABILITY...................................................13
6.4 NO CONFLICTS....................................................................13
6.5 INVESTMENT REPRESENTATIONS AND WARRANTIES.......................................14
SECTION 7. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.............................14
7.1 ORGANIZATION....................................................................14
7.2 DUE AUTHORIZATION...............................................................14
7.3 DUE EXECUTION; ENFORCEABILITY...................................................14
7.4 CONSENTS........................................................................15
7.5 NO CONFLICTS....................................................................15
7.6 BOARD OF DIRECTORS..............................................................15
7.7 DUE ISSUANCE AND AUTHORIZATION OF CAPITAL STOCK.................................16
SECTION 8. ADDITIONAL PROVISIONS.....................................................16
8.1 REGISTRATION RIGHTS.............................................................16
8.2 COOPERATION WITH THE DEBT REDUCTION TRANSACTIONS, THE FIRST RIGHTS OFFERING,
THE SECOND RIGHTS OFFERING AND THE THIRD STAGE OFFERINGS........................16
8.3 LEGEND..........................................................................17
8.4 CONVERSION LOANS................................................................17
8.5 FURTHER ASSURANCES..............................................................17
8.6 INVESTOR CONDITIONS.............................................................17
SECTION 9. MISCELLANEOUS.............................................................18
9.1 NOTICES.........................................................................18
9.2 INDEMNIFICATION.................................................................19
9.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES ETC..................................19
9.4 ASSIGNMENT......................................................................19
9.5 ENTIRE AGREEMENT................................................................20
9.6 WAIVERS AND AMENDMENTS..........................................................20
9.7 GOVERNING LAW; JURISDICTION; VENUE; PROCESS.....................................20
9.8 COUNTERPARTS....................................................................21
9.9 HEADINGS........................................................................21
9.10 THIRD PARTY BENEFICIARY.........................................................21
EXHIBIT A - Fidelity Support Agreement
EXHIBIT B - Investor Support Agreement
EXHIBIT C - Offering Circular
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INVESTMENT AGREEMENT
THIS INVESTMENT AGREEMENT (this "AGREEMENT") is made this 20th day of
February 2004 by and between Revlon, Inc., a Delaware corporation (the
"COMPANY"), and Mafco Holdings Inc., a Delaware corporation (the "INVESTOR").
W I T N E S S E T H:
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WHEREAS, in connection with, and as part of, the Company's plan to
reduce its indebtedness and strengthen its balance sheet and capital structure,
the Company intends to commence the Debt Reduction Transactions;
WHEREAS, as part of the Exchange Offer component of the Debt Reduction
Transactions, the Company will be offering cash, in certain circumstances, to
holders of up to an aggregate principal amount of $150 million of Exchange
Notes, and the Investor is willing, as set forth herein and upon consummation of
the Exchange Offer, to provide such cash amount;
WHEREAS, in order to facilitate the Exchange Offer component of the
Debt Reduction Transactions and to enhance the Company's debt reduction efforts,
the Investor is willing, as set forth herein and upon consummation of the
Exchange Offer, to the extent that a minimum of $150 million aggregate principal
amount of Exchange Notes is not tendered into the Exchange Offer (other than the
Initial Notes), to back-stop the Exchange Offer;
WHEREAS, in order to permit the stockholders of the Company, other than
the Investor, the right to acquire shares of Class A Common Stock at a purchase
price of $2.50 per share in certain circumstances, the Company shall effect a
rights offering (the "FIRST RIGHTS OFFERING") to distribute, on a pro rata basis
and at no charge, non-transferable rights (the "FIRST RIGHTS") to each holder of
record of Class A Common Stock and Class B Common Stock (together, the "COMMON
STOCK"), as of a record date to be prior to the expiration of the Exchange Offer
(the "FIRST RIGHTS OFFERING RECORD DATE"), to purchase shares ("FIRST RIGHTS
SHARES") of Class A Common Stock;
WHEREAS, each holder of First Rights, other than Investor, will be
entitled to purchase its pro rata number of First Rights Shares (the "FIRST
BASIC SUBSCRIPTION PRIVILEGE") at a price per First Rights Share equal to $2.50
per share (the "FIRST SUBSCRIPTION PRICE"), such that the aggregate number of
First Rights Shares to be offered in the First Rights Offering multiplied by the
First Subscription Price will equal the First Offering Amount;
WHEREAS, each holder of First Rights who exercises in full its First
Basic Subscription Privilege will be entitled, on a pro rata basis, to subscribe
for additional First Rights Shares at the First Subscription Price, to the
extent that other holders of First Rights do not exercise all of their First
Rights in the First Basic Subscription Privilege; provided that such
oversubscription privilege will be limited, in the aggregate, to those First
Rights Shares underlying the First Rights of holders other than the Investor;
WHEREAS, in addition to the Debt Reduction Transactions and the First
Rights Offering and to further reduce the Company's indebtedness, subject to the
terms and conditions set forth herein, on or prior to December 31, 2004, the
Company will effect a second rights offering (the "SECOND RIGHTS OFFERING") to
distribute, on a pro rata basis and at no charge, rights (the "SECOND RIGHTS")
to each holder of record of Common Stock, as of a record date (the "SECOND
RIGHTS OFFERING RECORD DATE") to be set by the Board of Directors of the Company
(the "BOARD OF DIRECTORS"), to purchase shares ("SECOND RIGHTS SHARES") of Class
A Common Stock;
WHEREAS, each holder of Second Rights will be entitled to purchase its
pro rata number of Second Rights Shares (the "SECOND BASIC SUBSCRIPTION
PRIVILEGE") at a price per Second Rights Share to be set by the Board of
Directors (the "SECOND SUBSCRIPTION PRICE"), such that the aggregate number of
Second Rights Shares to be offered in the Second Rights Offering multiplied by
the Second Subscription Price will equal the Second Offering Amount;
WHEREAS, each holder of Second Rights who exercises in full its Second
Basic Subscription Privilege will be entitled, on a pro rata basis, to subscribe
for additional Second Rights Shares at the Second Subscription Price (the
"SECOND OVER-SUBSCRIPTION PRIVILEGE"), to the extent that other holders of
Second Rights do not exercise all of their Second Rights in the Second Basic
Subscription Privilege;
WHEREAS, in order to back-stop the Second Rights Offering, the Investor
is willing, as set forth herein, to purchase, upon consummation of the Second
Rights Offering and at the Second Subscription Price, such number of shares of
Class A Common Stock as equals all of the Second Rights Shares that are not
purchased by holders of Second Rights in the Second Rights Offering as part of
their Second Basic Subscription Privilege and their Second Over-subscription
Privilege;
WHEREAS, in addition to the Debt Reduction Transactions, the First
Rights Offering and the Second Rights Offering and to further reduce the
Company's indebtedness subject to the terms and conditions set forth herein, on
or prior to March 31, 2006, the Company will effect the Third Stage Offerings;
WHEREAS, in order to facilitate the Third Stage Offerings and to
enhance the Company's refinancing efforts, the Investor is willing, as set forth
herein, to back-stop the Third Stage Offerings; and
WHEREAS, the Board of Directors, has determined that the Exchange
Offer, this Agreement and the transactions contemplated hereby are advisable and
in the best interests of the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained in this Agreement, the parties hereto hereby
agree as follows:
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Section 1. Definitions. For purposes of this Agreement, the following terms
will have the meaning set forth below:
"8 1/8% SENIOR NOTES" means the 8 1/8% Senior Notes due 2006 issued by RCPC
and guaranteed by the Company.
"8 5/8% SENIOR SUBORDINATED NOTES" means the 8 5/8% Senior Subordinated
Notes due 2008 issued by RCPC and guaranteed by the Company.
"9% SENIOR NOTES" means the 9% Senior Notes due 2006 issued by RCPC and
guaranteed by the Company.
"ADDITIONAL TENDERED NOTES" means those Exchange Notes validly tendered by
any party and accepted by the Company in the Exchange Offer in excess of the
aggregate principal amount of the Initial Notes.
"AGREEMENT" means this Investment Agreement.
"BOARD OF DIRECTORS" has the meaning assigned to it in the Preamble.
"BUSINESS DAY" means a day other than a Saturday, Sunday or other day on
which commercial banks in New York, New York are authorized or required by law
to close.
"CLASS A COMMON STOCK" means the Company's Class A common stock, par value
$0.01 per share.
"CLASS B COMMON STOCK" means the Company's Class B common stock, par value
$0.01 per share.
"COMMON STOCK" has the meaning assigned to it in the Preamble.
"COMPANY" has the meaning assigned to it in the Preamble.
"CONVERSION LOANS" means, collectively, the Investor Advance, the Investor
$100 Million Term Loan, the Investor $65 Million Line of Credit and the Investor
$125 Million Term Loan.
"DEBT REDUCTION TRANSACTIONS" means, collectively, the Exchange Offer, the
Loan Conversion Transactions and the Preferred Stock Transactions.
"DOL" means the U.S. Department of Labor.
"DOLLARS" and "$" mean dollars in lawful currency of the United States of
America.
"EXCHANGE NOTES" means, collectively, the 8 1/8% Senior Notes, the 8 5/8%
Senior Subordinated Notes and the 9% Senior Notes.
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"EXCHANGE OFFER" means the issuance of Class A Common Stock upon exchange
for the Exchange Notes as described in the Offering Circular.
"FIDELITY" means Fidelity Management & Research Co., a Delaware
corporation.
"FIDELITY SUPPORT AGREEMENT" means the agreement, dated February 11, 2004,
as amended, by and between the Company and Fidelity with respect to, among other
things, Fidelity's commitment to tender the Initial Fidelity Notes in the
Exchange Offer, a copy of which is attached hereto as Exhibit A.
"FIRST BASIC SUBSCRIPTION PRIVILEGE" has the meaning assigned to it in the
Preamble.
"FIRST OFFERING AMOUNT" means the quotient obtained by dividing (A) the sum
of (i) the Investor Equity Contribution, if any, and (ii) the Investor Stock
Subscription, by (B) the Investor's Ownership Percentage as of the First Rights
Offering Record Date.
"FIRST RIGHTS" has the meaning assigned to it in the Preamble.
"FIRST RIGHTS OFFERING" has the meaning assigned to it in the Preamble.
"FIRST RIGHTS OFFERING RECORD DATE" has the meaning assigned to it in the
Preamble.
"FIRST RIGHTS OFFERING REGISTRATION STATEMENT" has the meaning assigned to
it in Section 3.1(a) hereof.
"FIRST RIGHTS SHARES" has the meaning assigned to it in the Preamble.
"FIRST SUBSCRIPTION PRICE" has the meaning assigned to it in the Preamble.
"INDEMNITEES" has the meaning assigned to it in Section 9.2 hereof.
"INITIAL FIDELITY NOTES" means $155.06 million aggregate principal amount
of Exchange Notes held by Fidelity and its affiliates and consolidated funds as
of February 11, 2004.
"INITIAL INVESTOR NOTES" means $285.77 million aggregate principal amount
of Exchange Notes held by the Investor and its affiliates (other than the
Company and its subsidiaries) as of February 11, 2004.
"INITIAL NOTES" means, together, the Initial Fidelity Notes and the Initial
Investor Notes.
"INVESTOR" has the meaning assigned to it in the Preamble.
"INVESTOR $65 MILLION LINE OF CREDIT " means the $65 Million Senior
Unsecured Supplemental Line of Credit Agreement, dated as of February 5, 2003,
as amended.
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"INVESTOR $100 MILLION TERM LOAN" means the $100 Million Senior Unsecured
Multiple-Draw Term Loan Agreement, dated as of February 5, 2003, as amended.
"INVESTOR $125 MILLION TERM LOAN" means the $125 Million 2004 Senior
Unsecured Multiple-Draw Term Loan Agreement, dated as of January 28, 2004.
"INVESTOR ADVANCE" means amounts due under certain non-interest bearing
subordinated promissory notes.
"INVESTOR EQUITY CONTRIBUTION" means $150 million less the aggregate
principal amount of the Additional Tendered Notes (which amount shall not be
less than zero).
"INVESTOR STOCK SUBSCRIPTION" means the amount, if any, of cash to be paid
by the Company in exchange for Exchange Notes tendered in the Exchange Offer in
the amounts set forth in the Offering Circular, excluding cash to be paid with
respect to accrued interest at the applicable rate.
"INVESTOR SUPPORT AGREEMENT" means the agreement, dated February 11, 2004,
as amended, by and between the Company and the Investor with respect to, among
other things, the Investor's commitment to participate in the Debt Reduction
Transactions, a copy of which is attached hereto as Exhibit B.
"INVESTOR'S OWNERSHIP PERCENTAGE" means the percentage of Common Stock
owned by the Investor and its affiliates on the relevant date.
"LOAN CONVERSION TRANSACTIONS" means the issuance of Class A Common Stock
in exchange for the cancellation of the Conversion Loans.
"NYSE" means the New York Stock Exchange.
"OFFERING CIRCULAR" means the offering circular to be sent to the holders
of the Exchange Notes in the Exchange Offer substantially in the form attached
hereto as Exhibit C.
"PERSON" includes all natural persons, corporations, business trusts,
limited liability companies, associations, companies, partnerships, joint
ventures and other entities, as well as governments and their respective
agencies and political subdivisions.
"PREFERRED STOCK TRANSACTIONS" means the issuance of Class A Common Stock
(x) in exchange for the Series A Preferred Stock and (y) upon conversion of the
Series B Convertible Preferred Stock.
"RCPC" means Revlon Consumer Products Corporation, a Delaware corporation
and wholly-owned subsidiary of the Company.
"REGISTRATION RIGHTS AGREEMENT" has the meaning assigned to it in Section
8.1 hereof.
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"SEC" means the Securities and Exchange Commission.
"SECOND BASIC SUBSCRIPTION PRIVILEGE" has the meaning assigned to it in the
Preamble.
"SECOND OFFERING AMOUNT" means the positive excess, if any, of $200 million
less the sum of (i) the aggregate principal amount of the Additional Tendered
Notes, (ii) the Investor Equity Contribution, if any, and (iii) the aggregate
proceeds of the First Rights Offering.
"SECOND OVER-SUBSCRIPTION PRIVILEGE" has the meaning assigned to it in the
Preamble.
"SECOND RIGHTS" has the meaning assigned to it in the Preamble.
"SECOND RIGHTS OFFERING" has the meaning assigned to it in the Preamble.
"SECOND RIGHTS OFFERING RECORD DATE" has the meaning assigned to it in the
Preamble.
"SECOND RIGHTS OFFERING REGISTRATION STATEMENT" has the meaning assigned to
it in Section 4.1(a) hereof.
"SECOND RIGHTS SHARES" has the meaning assigned to it in the Preamble.
"SECOND STAGE BACK-STOP SHARES" has the meaning assigned to it in Section
4.2 hereof.
"SECOND SUBSCRIPTION PRICE" has the meaning assigned to it in the Preamble.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SERIES A PREFERRED STOCK" means the Company's Series A preferred stock,
par value $0.01 per share.
"SERIES B CONVERTIBLE PREFERRED STOCK" means the Company's Series B
convertible preferred stock, par value $0.01 per share.
"THIRD STAGE BACK-STOP AMOUNT" has the meaning assigned to it in Section
5.2 hereof.
"THIRD STAGE OFFERING AMOUNT" means $300 million less the sum of (i) the
aggregate principal amount of the Additional Tendered Notes, (ii) the Investor
Equity Contribution, if any, (iii) the aggregate proceeds of the First Rights
Offering, (iv) the aggregate proceeds of the Second Rights Offering (including,
without limitation, the aggregate Second Subscription Price of the Second Stage
Back-Stop Shares), and (v) the aggregate proceeds of any other equity
offering(s), including, without limitation, any Third Stage Offerings,
consummated after the Exchange Offer and used by RCPC to
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reduce its outstanding indebtedness, other than revolving indebtedness unless
there is a corresponding commitment reduction.
"THIRD STAGE OFFERINGS" means one or more offerings (which may be rights
offerings and/or issuances of Class A Common Stock in a public offering or
private placement or other exempt transactions either for cash or in exchange
for outstanding indebtedness of RCPC) in order to reduce RCPC's outstanding
indebtedness, other than revolving indebtedness unless there is a corresponding
commitment reduction, by the Third Stage Offering Amount.
Section 2. Exchange Offer.
2.1 Investor Equity Contribution. Promptly following the expiration of
the Exchange Offer (but in no event later than three (3) Business Days following
the closing of the Exchange Offer), pursuant to the terms and subject to the
conditions of this Agreement and the Exchange Offer as set forth in the Offering
Circular, the Investor shall purchase for cash shares of Class A Common Stock at
a per share purchase price of $2.50 in an aggregate subscription amount equal to
the Investor Equity Contribution.
2.2 Investor Stock Subscription. Promptly following the expiration of
the Exchange Offer (but in no event later than the Company's obligation to pay
cash consideration in exchange for Exchange Notes tendered for cash in the
Exchange Offer, if applicable, in accordance with the terms of the Exchange
Offer), pursuant to the terms and subject to the conditions of this Agreement
and the Exchange Offer as set forth in the Offering Circular, the Investor shall
purchase, and pay for in cash, shares of Class A Common Stock at a per share
purchase price of $2.50 in an aggregate subscription amount equal to the
Investor Stock Subscription.
2.3 Use of Proceeds.
(a) The Company shall, as soon as practicable following consummation
of the Exchange Offer (after giving effect to compliance by the Investor with
its obligations under Section 2.1 hereof), contribute the net cash proceeds
received in satisfaction of the Investor Equity Contribution, if any, to RCPC as
a capital contribution. The Company will cause RCPC to use, as soon as
practicable, any such amounts to reduce RCPC's outstanding indebtedness, other
than revolving indebtedness unless there is a corresponding commitment
reduction.
(b) The Company shall use any cash received in satisfaction of the
Investor Stock Subscription for the cash consideration in the Exchange Offer.
2.4 Conditions. The Investor's obligations pursuant to this Section 2
are conditioned upon consummation of the Exchange Offer in accordance with its
terms. The maximum aggregate principal amount of Exchange Notes that may be
tendered for cash in the Exchange Offer will be $150 million, which amount will
be reduced by the aggregate principal amount of Additional Tendered Notes
tendered and exchanged for Class A Common Stock.
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Section 3. First Rights Offering.
3.1 The First Rights Offering.
(a) Subject to Section 3.4 hereof, as soon as reasonably practicable
after the consummation of the Exchange Offer, the Company will consummate the
First Rights Offering. In connection therewith, the Company shall, as soon as
reasonably practicable, prepare and file with the SEC a registration statement
(including each amendment and supplement thereto, the "FIRST RIGHTS OFFERING
REGISTRATION STATEMENT") on Form S-3 (or, if Form S-3 is not then available to
the Company, on such form of registration statement as is then available to
effect a registration of securities), covering the issuance of the First Rights,
if required, and the First Rights Shares. The Company will not permit any
securities other than the First Rights, if required, and the First Rights Shares
to be included in the First Rights Offering Registration Statement. The First
Rights Offering Registration Statement (and each amendment or supplement
thereto, and each request for acceleration of effectiveness thereof) will be
provided to the Investor and its counsel, and Fidelity and its counsel, prior to
its filing with or other submission to the SEC. The First Rights Offering
Registration Statement will comply in all material respects with the provisions
of applicable federal securities laws. The Company promptly will correct any
information included in the First Rights Offering Registration Statement if, and
to the extent that, such information becomes false or misleading in any material
respect, and the Company will take all steps necessary to cause the First Rights
Offering Registration Statement, as so corrected, to be filed with the SEC and,
upon its effectiveness, to be disseminated to the distributees of the First
Rights, in each case as and to the extent required by applicable federal
securities laws. The Investor and its counsel, and Fidelity and its counsel,
will be given a reasonable opportunity to review and comment upon the First
Rights Offering Registration Statement in each instance before it is filed with
the SEC. In addition, the Company will provide the Investor and its counsel, and
Fidelity and its counsel, with any written comments or other written
communications that the Company or its counsel receives from time to time from
the SEC or its staff with respect to the First Rights Offering Registration
Statement promptly after the receipt of such comments or other communications.
The Company will use its commercially reasonable efforts to cause the First
Rights Offering Registration Statement to be filed pursuant to this Section 3.1
and to be declared effective by the SEC as soon as possible after the First
Rights Offering Registration Statement is filed with the SEC.
(b) As soon as reasonably practicable following the effective date
of the First Rights Offering Registration Statement, the Company will commence
the First Rights Offering. In the First Rights Offering, the Company will
distribute, on a pro rata basis and at no charge, non-transferable First Rights
to each holder of record of Common Stock as of the First Rights Offering Record
Date. The First Rights will entitle the holder to purchase, at the election of
the holder thereof, its pro rata number of First Rights Shares at the First
Subscription Price, which when multiplied by the aggregate number of First
Rights Shares offered shall equal the First Offering Amount.
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(c) The First Rights Offering will remain open for at least thirty
(30) days. The First Rights shall expire at 5:00 p.m., New York City time on the
day following such thirtieth (30th) day, except as such expiration date or time
may be extended by the Company or otherwise as may be required by applicable law
or NYSE listing rule.
(d) Each holder of First Rights who exercises in full its First
Basic Subscription Privilege will be entitled to subscribe for additional First
Rights Shares at the First Subscription Price to the extent that other holders
of First Rights do not exercise all of their First Rights in the First Basic
Subscription Privilege; provided that such oversubscription privilege will be
limited, in the aggregate, to those First Rights Shares underlying the First
Rights of holders other than the Investor.
(e) If the number of First Rights Shares remaining after the
exercise of all First Basic Subscription Privileges is not sufficient to satisfy
all oversubscriptions, the First Rights holders who exercised their First Basic
Subscription Privileges in full will be allocated First Rights Shares pro rata
and in proportion to the number of First Rights Shares purchased through the
First Basic Subscription Privilege. If the pro rata allocation exceeds the
number of First Rights Shares requested on the subscription certificate, then
each First Rights holder only will receive the number of First Rights Shares
requested, and the remaining First Rights Shares from such First Rights holder's
pro rata allocation will be divided among other First Rights holders exercising
their oversubscription privileges. If the pro rata allocation is less than the
number of First Rights Shares requested on the subscription certificate, then
the excess funds paid by that First Rights holder as the First Subscription
Price for the First Rights Shares not issued will be returned to such First
Rights holder without interest or deduction.
(f) The closing of the purchase of the oversubscription by each
First Rights holder will occur at the time, for the First Subscription Price, in
the manner, and on the terms and conditions of the First Rights Offering as will
be set forth in the First Rights Offering Registration Statement.
3.2 Subordination of First Basic Subscription Privilege. As set forth in
the Investor Support Agreement, the Investor agrees to, and will cause its
affiliates to, not exercise any First Rights which it, or its affiliates,
receives in the First Rights Offering.
3.3 Use of Proceeds. The Company shall, as soon as practicable following
consummation of the First Rights Offering, contribute the net cash proceeds
received in the First Rights Offering to RCPC as a capital contribution. The
Company will cause RCPC to use, as soon as practicable, any such amounts to
reduce RCPC's outstanding indebtedness, other than revolving indebtedness unless
there is a corresponding commitment reduction.
3.4 Conditions. The Company's obligation to conduct the First Rights
Offering is conditioned upon the Investor having made either (x) an Investor
Equity Contribution in cash (to the extent required hereunder), or (y) an
Investor Stock
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Subscription, and, accordingly, the First Offering Amount exceeding $0. The
maximum aggregate First Subscription Price of First Rights Shares which may be
purchased by holders other than the Investor, and taking into account the
Investor's agreement in Section 3.2 hereof not to exercise its First Rights
(whether by First Basic Subscription Privilege, oversubscription or otherwise),
is (x)(A) the sum of the Investor Equity Contribution, if any, and the Investor
Stock Subscription, divided by (B) the Investor's Ownership Percentage on the
First Rights Offering Record Date, less (y) the sum of the Investor Equity
Contribution, if any, and the Investor Stock Subscription.
Section 4. Second Rights Offering.
4.1 The Second Rights Offering.
(a) Subject to Section 4.4 hereof, the Company will prepare and file
with the SEC a registration statement (including each amendment and supplement
thereto, the "Second Rights Offering Registration Statement") on Form S-3 (or,
if Form S-3 is not then available to the Company, on such form of registration
statement as is then available to effect a registration of securities), covering
the issuance of the Second Rights, if required, and the Second Rights Shares.
The Company will not permit any securities other than the Second Rights, if
required, and the Second Rights Shares to be included in the Second Rights
Offering Registration Statement. The Second Rights Offering Registration
Statement (and each amendment or supplement thereto, and each request for
acceleration of effectiveness thereof) will be provided to the Investor and its
counsel, and Fidelity and its counsel, prior to its filing with or other
submission to the SEC. The Second Rights Offering Registration Statement will
comply in all material respects with the provisions of applicable federal
securities laws. The Company promptly will correct any information included in
the Second Rights Offering Registration Statement if, and to the extent that,
such information becomes false or misleading in any material respect, and the
Company will take all steps necessary to cause the Second Rights Offering
Registration Statement, as so corrected, to be filed with the SEC and, upon its
effectiveness, to be disseminated to the distributees of the Second Rights, in
each case as and to the extent required by applicable federal securities laws.
The Investor and its counsel, and Fidelity and its counsel, will be given a
reasonable opportunity to review and comment upon the Second Rights Offering
Registration Statement in each instance before it is filed with the SEC. In
addition, the Company will provide the Investor and its counsel, and Fidelity
and its counsel, with any written comments or other written communications that
the Company or its counsel receives from time to time from the SEC or its staff
with respect to the Second Rights Offering Registration Statement promptly after
the receipt of such comments or other communications. The Company will use its
commercially reasonable efforts to cause the Second Rights Offering Registration
Statement to be filed pursuant to this Section 4.1 and to be declared effective
by the SEC as soon as possible after the Second Rights Offering Registration
Statement is filed with the SEC.
(b) The offering price and terms of the Second Rights Offering shall
be determined by the Board of Directors at the time of the Second Rights
Offering.
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(c) As soon as reasonably practicable following the effective date
of the Second Rights Offering Registration Statement, the Company will commence
the Second Rights Offering. In the Second Rights Offering, the Company will
distribute, on a pro rata basis and at no charge, Second Rights to each holder
of record of Common Stock as of the Second Rights Offering Record Date. The
Second Rights will entitle the holder to purchase, at the election of the holder
thereof, its pro rata number of Second Rights Shares at the Second Subscription
Price; provided, that, the Second Subscription Price multiplied by the aggregate
number of Second Rights Shares offered shall equal the Second Offering Amount.
(d) The Second Rights Offering will remain open for at least thirty
(30) days. The Second Rights shall expire at 5:00 p.m., New York City time on
the day following such thirtieth (30th) day, except as such expiration date or
time may be extended by the Company or otherwise as may be required by
applicable law or NYSE listing rule.
(e) Each holder of Second Rights who exercises in full its Second
Basic Subscription Privilege will be entitled to subscribe for additional Second
Rights Shares at the Second Subscription Price to the extent that other holders
of Second Rights do not exercise all of their Second Rights in the Second Basic
Subscription Privilege.
(f) If the number of Second Rights Shares remaining after the
exercise of all Second Basic Subscription Privileges is not sufficient to
satisfy all Second Over-subscription Privileges, the Second Rights holders who
exercised their Second Basic Subscription Privileges in full will be allocated
Second Rights Shares pro rata and in proportion to the number of Second Rights
Shares purchased through the Second Basic Subscription Privilege. If the pro
rata allocation exceeds the number of Second Rights Shares requested on the
subscription certificate, then each Second Rights holder only will receive the
number of Second Rights Shares requested, and the remaining Second Rights Shares
from such Second Rights holder's pro rata allocation will be divided among other
Second Rights holders exercising their Second Over-subscription Privileges. If
the pro rata allocation is less than the number of Second Rights Shares
requested on the subscription certificate, then the excess funds paid by that
Second Rights holder as the Second Subscription Price for the Second Rights
Shares not issued will be returned to such Second Rights holder without interest
or deduction.
(g) The closing of the purchase of the Second Over-subscription
Privilege by each Second Rights holder will occur at the time, for the Second
Subscription Price, in the manner, and on the terms and conditions of the Second
Rights Offering as will be set forth in the Second Rights Offering Registration
Statement; provided, that in no event shall the Rights Offering be consummated
after December 31, 2004.
(h) Each of the Investor and Fidelity shall be entitled (but not
obligated) to exercise any Second Basic Subscription Privilege and any Second
Over-Subscription Privilege received in the Second Rights Offering in accordance
with the
11
Second Rights Offering Registration Statement and along with all other holders
of Second Rights.
4.2 Back-stop of the Second Right Offering. Subject to Section 4.4
hereof, within three (3) Business Days following the expiration of the Second
Rights Offering, pursuant to the terms and subject to the conditions of this
Agreement and the Second Rights Offering as set forth in the Second Rights
Offering Registration Statement, but in no event later than December 31, 2004,
the Investor shall, on the same terms as the Second Rights Offering, purchase
the number of shares of Class A Common Stock equal to the number of Second
Rights Shares that are not otherwise subscribed and paid for by the holders of
Second Rights under either their Second Basic Subscription Privilege or their
Second Over-subscription Privilege, provided; however, that such number shall
not exceed (x) the Second Offering Amount divided by (y) the Second Subscription
Price (the "SECOND STAGE BACK-STOP SHARES").
4.3 Use of Proceeds. The Company shall, as soon as practicable
following consummation of the Second Rights Offering (after giving effect to
compliance by the Investor with its obligations under Section 4.2 hereof),
contribute the net cash proceeds received in the Second Rights Offering to RCPC
as a capital contribution. The Company will cause RCPC to use, as soon as
practicable, any such amounts to reduce RCPC's outstanding indebtedness, other
than revolving indebtedness unless there is a corresponding commitment
reduction.
4.4 Conditions. The Company's obligation to conduct the Second
Rights Offering, and the Investor's obligation to purchase the Second Stage
Back-Stop Shares, is conditioned upon the Second Offering Amount exceeding $0.
Section 5. Third Stage Offerings.
5.1 Third Stage Offerings. Subject to Section 5.4 hereof, the
Company will consummate, on or prior to March 31, 2006, the Third Stage
Offerings. The offering price and terms of any Third Stage Offerings shall be
determined by the Board of Directors at the time of the Third Stage Offerings.
5.2 Back-stop of the Third Stage Offerings. In the event that the
Third Stage Offering Amount exceeds $0, the Investor will, by March 31, 2006,
purchase shares of Class A Common Stock for an aggregate amount of cash (such
aggregate purchase price, the "THIRD STAGE BACK-STOP AMOUNT") which will, upon
contribution by the Company to RCPC as a capital contribution, permit RCPC to
reduce RCPC's indebtedness other than revolving indebtedness unless there is a
corresponding commitment reduction, in an aggregate principal amount equal to
the Third Stage Offering Amount. The Investor may satisfy its obligations by
making an investment in Class A Common Stock in an amount equal to the Third
Stage Back-Stop Amount pursuant to any transaction approved by the Board of
Directors, which may include a rights offering.
12
5.3 Use of Proceeds. The Company shall, as soon as practicable,
following consummation of each Third Stage Offering (after giving effect to
compliance by the Investor with its obligations under Section 5.2 hereof),
contribute the net cash proceeds received in such Third Stage Offering
(including, without limitation, the Third Stage Back-Stop Amount, if applicable)
to RCPC as a capital contribution. The Company will cause RCPC to use, as soon
as practicable, any such amounts to reduce RCPC's outstanding indebtedness,
other than revolving indebtedness unless there is a corresponding commitment
reduction.
5.4 Conditions. The Company's obligation to conduct the Third Stage
Offerings, and the Investor's obligation to purchase the Third Stage Back-Stop
Amount, is conditioned upon the Third Stage Offering Amount exceeding $0. In no
event shall the Third Stage Back-Stop Amount exceed the Third Stage Offering
Amount.
Section 6. Representations and Warranties of the Investor. The Investor
represents and warrants to the Company as of the date hereof as follows:
6.1 Organization. The Investor (a) is duly organized, validly
existing and in good standing under the laws of the State of Delaware and (b)
has all corporate power and authority to consummate the transactions
contemplated by this Agreement.
6.2 Due Authorization. The Investor has the requisite corporate
power and authority to enter into, execute and deliver this Agreement and to
perform its obligations hereunder, and has taken all necessary corporate action
required for the due authorization, execution, delivery and performance by it of
this Agreement.
6.3 Due Execution; Enforceability. This Agreement has been duly and
validly executed and delivered by the Investor and constitutes its valid and
binding obligation, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
6.4 No Conflicts. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereunder will
not (a) conflict with or result in any breach of any provision of its
certificate of incorporation or by-laws, (b) except for the filings, permits,
authorizations, consents and approvals as may be required under, and other
applicable requirements of, federal securities laws, applicable state securities
or blue sky laws and the rules and regulations of the NYSE, conflict with or
result in the breach of the terms, conditions or provisions of or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or give rise to any right of termination, acceleration or
cancellation under, any material agreement, lease, mortgage, license, indenture,
instrument or other contract to which it is a party or by which any of its
properties or assets are bound, or (c) except for the filings, permits,
authorizations, consents and approvals as may be required under, and
13
other applicable requirements of, federal securities laws, applicable state
securities or blue sky laws and the rules and regulations of the NYSE, result in
a violation of any law, rule, regulation, order, judgment or decree (including,
without limitation, federal and state securities laws and regulations)
applicable to it or by which any of its properties or assets are bound or
affected, except in the case of clauses (b) or (c), where such conflicts or
violations would not prevent or materially delay its ability to consummate the
transactions contemplated by this Agreement.
6.5 Investment Representations and Warranties.
(a) The shares of Class A Common Stock being acquired by it
hereunder are being acquired for its own account, for the purpose of investment
and not with a view to or for sale in connection with any public resale or
distribution thereof in violation of applicable securities laws.
(b) It is an "accredited investor" within the meaning of Rule 501(a)
promulgated under the Securities Act.
Section 7. Representations and Warranties of the Company. The Company
represents and warrants to the Investor as of the date hereof as follows:
7.1 Organization. The Company (a) is duly organized, validly existing
and in good standing under the laws of the State of Delaware, (b) is duly
qualified or licensed to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction where the nature of the property
owned or leased by it or the nature of the business conducted by it makes such
qualification or license necessary, except where the failure to be so qualified
or licensed would not reasonably be expected to either prevent or materially
delay its ability to perform its obligations hereunder, and (c) has all
corporate power and authority to carry on its business as it now is being
conducted and to consummate the transactions contemplated by this Agreement,
including the issuance of the Class A Common Stock (other than the need to amend
its certificate of incorporation to increase its authorized capital stock).
7.2 Due Authorization. The Company has the requisite corporate power and
authority to enter into, execute and deliver this Agreement, including the
issuance of the Class A Common Stock (other than the need to amend its
certificate of incorporation to increase its authorized capital stock), and to
perform its obligations hereunder, and has taken all necessary corporate action
required for the due authorization, execution, delivery and performance by it of
this Agreement, including the issuance of the Class A Common Stock (other than
the need to amend its certificate of incorporation to increase its authorized
capital stock).
7.3 Due Execution; Enforceability. This Agreement has been duly and
validly executed and delivered by the Company and constitutes its valid and
binding obligation, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally
and subject, as to enforceability, to
14
general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
7.4 Consents. Except for the filings, permits, authorizations, consents
and approvals as may be required under, and other applicable requirements of,
federal securities laws, applicable state securities or blue sky laws and the
rules and regulations of the NYSE or the need to obtain an exemption, if
required, from the DOL with respect to the issuance of the First Rights, the
Second Rights or otherwise, to its best knowledge, neither the execution,
delivery or performance of this Agreement, including the issuance of the Class A
Common Stock (other than the need to amend its certificate of incorporation to
increase its authorized capital stock), nor the consummation by it of its
obligations and the transactions contemplated by this Agreement, including the
issuance of the Class A Common Stock (other than the need to amend its
certificate of incorporation to increase its authorized capital stock) requires
any consent of, authorization by, exemption from, filing with, or notice to any
governmental entity or any other Person.
7.5 No Conflicts. The execution, delivery and performance of this
Agreement, including the issuance of the Class A Common Stock (other than the
need to amend its certificate of incorporation to increase its authorized
capital stock) and the consummation of the transactions contemplated hereunder
will not (a) conflict with or result in any breach of any provision of its
certificate of incorporation or by-laws, (b) except for the filings, permits,
authorizations, consents and approvals as may be required under, and other
applicable requirements of, federal securities laws, applicable state securities
or blue sky laws and the rules and regulations of the NYSE or the need to obtain
an exemption, if required, from the DOL with respect to the issuance of the
First Rights, the Second Rights or otherwise, conflict with or result in the
breach of the terms, conditions or provisions of or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give rise to any right of termination, acceleration or cancellation under,
any material agreement, lease, mortgage, license, indenture, instrument or other
contract to which it is a party or by which any of its properties or assets are
bound, or (c) except for the filings, permits, authorizations, consents and
approvals as may be required under, and other applicable requirements of,
federal securities laws, applicable state securities or blue sky laws and the
rules and regulations of the NYSE, result in a violation of any law, rule,
regulation, order, judgment or decree (including, without limitation, federal
and state securities laws and regulations) applicable to it or by which any of
its properties or assets are bound or affected, except in the case of clauses
(b) or (c), where such conflicts or violations would not prevent or materially
delay its ability to consummate the transactions contemplated by this Agreement,
including the issuance of the Class A Common Stock.
7.6 Board of Directors. The Board of Directors has determined that the
Exchange Offer, this Agreement and the transactions contemplated hereby are
advisable and in the best interests of the Company.
15
7.7 Due Issuance and Authorization of Capital Stock. No shares of
capital stock of the Company are subject to preemptive rights or any other
similar rights of any or all of the stockholders of the Company. The shares of
Class A Common Stock issued and delivered to the Investor pursuant to the terms
hereof will be, upon issuance, duly authorized, validly issued, fully paid and
non-assessable, and will not be subject to preemptive rights or other similar
rights of any or all stockholders of the Company and will not impose personal
liability upon the Investor thereof.
Section 8. Additional Provisions. The Company and the Investor hereby agree
to do the following:
8.1 Registration Rights. The Company hereby acknowledges to the Investor
that with respect to any shares of Class A Common Stock acquired by the Investor
pursuant to the Debt Reduction Transactions or this Agreement, the Investor (or
its affiliates, if applicable) shall be deemed to be a "Holder" and such shares
of Class A Common Stock shall be deemed to be "Registrable Securities" for all
purposes under the Registration Rights Agreement (as amended, the "REGISTRATION
RIGHTS AGREEMENT") dated as of March 5, 1996, between Revlon Worldwide
Corporation and the Company, as amended by the First Amendment to the
Registration Rights Agreement, dated as of July 31, 2001, between REV Holdings
Inc. (formerly known as Revlon Worldwide Corporation and now a limited liability
company known as REV Holdings LLC) and the Company; provided, that, the Investor
(or its affiliates) shall execute a joinder to the Registration Rights
Agreement, if applicable.
8.2 Cooperation with the Debt Reduction Transactions, the First Rights
Offering, the Second Rights Offering and the Third Stage Offerings.
(a) Voting Commitment. At every meeting of the stockholders of the
Company called with respect to the Debt Reduction Transactions or the
transactions contemplated by this Agreement (including, without limitation,
Sections 2, 3, 4 and 5 hereof), and at every postponement or adjournment
thereof, and on every action or approval by written consent of the Company's
stockholders with respect to the Debt Reduction Transactions or the transactions
contemplated by this Agreement (including, without limitation, Sections 2, 3, 4
and 5 hereof), the Investor agrees to vote such holder's shares of the Company's
voting securities in favor of, or consent to, and, to the extent applicable,
cause its affiliates to vote in favor of, or consent to, the Debt Reduction
Transactions or the transactions contemplated by this Agreement (including,
without limitation, Sections 2, 3, 4 and 5 hereof) and any matter that could
reasonably be expected to facilitate the Debt Reduction Transactions or the
transactions contemplated by this Agreement (including, without limitation,
Sections 2, 3, 4 and 5 hereof). The Investor will not, and will cause its
affiliates not to, enter into any agreement or understanding with any person or
entity to vote or give instructions in any manner inconsistent with this
Agreement.
(b) Other Support. The Investor will, and will cause its affiliates to,
cooperate with the Company and use its commercially reasonable efforts and take,
or cause to be taken, all commercially reasonable actions in order to facilitate
the successful
16
consummation of the Debt Reduction Transactions, the First Rights Offering, the
Second Rights Offering, the Third Stage Offerings and the other transactions
contemplated by this Agreement. In particular, the Company is undertaking the
Debt Reduction Transactions, the Second Rights Offering and the Third Stage
Offerings in reliance on the Investor's commitments under Sections 2, 4 and 5
hereof. The Company will cooperate with the Investor and use its commercially
reasonable efforts and take all commercially reasonable actions in order to
facilitate the successful consummation of the Debt Reduction Transactions, the
First Rights Offering, the Second Rights Offering, the Third Stage Offerings and
the other transactions contemplated by this Agreement.
8.3 Legend. The Investor agrees with the Company that the certificates
evidencing the shares of Class A Common Stock to be purchased hereunder will
bear the following legend:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR TRANSFERRED UNLESS
THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH
SECURITIES OR THE SECURITIES ARE SOLD AND TRANSFERRED IN A TRANSACTION THAT IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT."
8.4 Conversion Loans. Upon the terms and conditions of the Investor
Support Agreement, all amounts outstanding, including accrued and unpaid
interest thereon, at the applicable rate, under the Conversion Loans as of the
closing of the Exchange Offer will be exchanged for shares of Class A Common
Stock in the Loan Conversion Transactions. Following the Loan Conversion
Transactions, the remaining commitments under the Conversions Loans (other than
the Investor Advance) will remain available to RCPC in accordance with the terms
of the Conversion Loans (other than the Investor Advance).
8.5 Further Assurances. From time to time after the date of this
Agreement, the parties hereto shall execute, acknowledge and deliver to the
other parties such other instruments, documents, and certificates and will take
such other actions as the other parties may reasonably request in order to
consummate the transactions contemplated by this Agreement.
8.6 Investor Conditions. The Investor's obligations in Sections 2, 4,
and 5 hereunder to acquire capital stock of the Company through subscription,
exchange, purchase or otherwise shall be subject in each case to the
satisfaction or waiver of the following conditions: (a) there shall be
sufficient authorized capital stock for the Company to effect such transaction,
and (b) there shall not be any action taken, or any law or regulation, ruling,
order or injunction enacted, enforced, promulgated, proposed, issued or deemed
applicable to such transaction by any governmental authority or self-regulatory
organization that makes such transaction illegal or that seeks to prohibit or
enjoin such transaction.
17
Section 9. Miscellaneous.
9.1 Notices. Any notice or other communication required or which may be
given pursuant to this Agreement will be in writing and either delivered
personally to the addressee, telecopied to the addressee, sent via electronic
mail or mailed, certified or registered mail, postage prepaid, and will be
deemed given when so delivered personally, telecopied, or sent via electronic
mail, or, if mailed, five (5) days after the date of mailing, as follows:
(i) if to the Investor, to:
Mafco Holdings Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
with one copy (which shall not constitute notice) to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ and
(▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ and
▇▇▇▇▇▇@▇▇▇▇.▇▇▇
(ii) if to the Company, to:
Revlon, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Legal Officer
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
with one copy (which shall not constitute notice) to:
18
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
9.2 Indemnification. The Company will indemnify, save and hold harmless
the Investor, and all of its directors, officers, stockholders, employees,
partners, members, managers, representatives, affiliates, attorneys and agents
and all of its heirs, successors, legal administrators and permitted assigns
(the "INDEMNITEES") from and against any and all liability, loss, cost, damage,
reasonable attorneys' and accountants' fees and expenses, court costs and all
other out-of-pocket expenses incurred by any or all of the Indemnitees in
connection with or arising from the execution, delivery and performance by the
Company of this Agreement (but not the Debt Reduction Transactions), the Second
Rights Offering, the Third Stage Offerings and any other related transaction,
except to the extent of any willful misconduct or gross negligence of the
Indemnitees. This indemnification provision will be in addition to the rights of
each and all of the Indemnitees to bring an action against the Company for
breach of any term of this Agreement. The Company acknowledges and agrees that
each and all of the Indemnitees shall be treated as third party beneficiaries
with rights to bring an action against the Company under this Section 9.2.
9.3 Survival of Representations and Warranties etc. All representations
and warranties made in, pursuant to or in connection with this Agreement will
survive the execution and delivery of this Agreement indefinitely,
notwithstanding any investigation at any time made by or on behalf of any party
hereto; and all statements contained in any certificate, instrument or other
writing delivered by or on behalf of any party hereto required to be made
pursuant to the terms of this Agreement or required to be made in connection
with or in contemplation of the transactions contemplated by this Agreement will
constitute representations and warranties by such party pursuant to this
Agreement.
9.4 Assignment. This Agreement will be binding upon and inure to the
benefit of each and all of the parties to this Agreement, and, except as set
forth below, neither this Agreement nor any of the rights, interests or
obligations hereunder will be assigned by any of the parties to this Agreement
without the prior written consent of the other parties. This Agreement, or the
Investor's obligations hereunder, may be assigned, delegated or transferred, in
whole or in part, by the Investor to any affiliate of the Investor (other than
REV Holdings LLC) over which the Investor or any of its affiliates exercises
investment authority, including, without limitation, with respect to voting and
dispositive rights; provided, any such assignee assumes the obligations of the
Investor hereunder and agrees in writing to be bound by the terms of this
Agreement in the same manner as the Investor. Notwithstanding the foregoing, no
such assignment shall relieve the Investor of its obligations hereunder if such
assignee fails to perform such obligations. Without complying with the
provisions of this Section 9.4, the Investor may
19
satisfy its obligations under Sections 2, 4 or 5 hereof by causing an affiliate
of the Investor (other than REV Holdings LLC) to satisfy its obligations under
such Sections.
9.5 Entire Agreement. This Agreement and the Investor Support Agreement
contain the entire agreement by and between the Company and the Investor with
respect to the transactions contemplated by this Agreement and the Investor
Support Agreement and supersede all prior agreements and representations,
written or oral, with respect thereto.
9.6 Waivers and Amendments. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended, and the terms and conditions of this
Agreement may be waived, only by a written instrument signed by the parties or,
in the case of a waiver, by the party waiving compliance. No delay on the part
of any party in exercising any right, power or privilege pursuant to this
Agreement will operate as a waiver thereof, nor will any waiver on the part of
any party of any right, power or privilege pursuant to this Agreement, nor will
any single or partial exercise of any right, power or privilege pursuant to this
Agreement, preclude any other or further exercise thereof or the exercise of any
other right, power or privilege pursuant to this Agreement. The rights and
remedies provided pursuant to this Agreement are cumulative and are not
exclusive of any rights or remedies which any party otherwise may have at law or
in equity.
9.7 Governing Law; Jurisdiction; Venue; Process. THIS AGREEMENT WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE THAT
WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE
OF NEW YORK. Any legal or equitable action or proceeding arising out of or in
connection with this Agreement or in any certificate, report or other instrument
delivered under or pursuant to any term of this Agreement will be brought only
in the courts of the State of New York, in the County and City of New York or of
the United States District Court for the Southern District of New York, and by
execution and delivery of this Agreement, each of the parties hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the exclusive jurisdiction of the aforesaid courts. Each of the
parties hereby irrevocably waives any objection which it may now or hereafter
have to laying of jurisdiction or venue of any actions or proceedings arising
out of or in connection with this Agreement or in any certificate, report or
other instrument delivered under or pursuant to any term of this Agreement
brought in the courts referred to above and hereby further irrevocably waive and
agree not to plead or claim in any such court that any such action or proceeding
has been brought in an inconvenient forum. Each of the parties further agrees
that the mailing by certified or registered mail, return receipt requested, of
any process required by any such court will constitute valid and lawful service
of process against it, without necessity for service by any other means provided
by statute or rule of court. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
20
9.8 Counterparts. This Agreement may be executed in two or more
counterparts, which may be by facsimile, each of which will be deemed an
original but all of which together will constitute one and the same instrument.
All such counterparts will be deemed an original, will be construed together and
will constitute one and the same instrument.
9.9 Headings. The headings in this Agreement are for reference purposes
only and will not in any way affect the meaning or interpretation of this
Agreement.
9.10 Third Party Beneficiary. Fidelity is an intended third party
beneficiary of this Agreement and Fidelity's prior written consent shall be
required for any amendment or waiver of this Agreement.
[Execution Page Follows]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
REVLON, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President,
Chief Legal Officer
MAFCO HOLDINGS INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and
General Counsel
22