EXHIBIT 10.31
REVLON CONSUMER PRODUCTS CORPORATION
$80,000,000
9 1/2% Senior Notes Due 2011
FORM OF PURCHASE AGREEMENT
August 11, 2005
CITIGROUP GLOBAL MARKETS INC.
As Representative of the Initial Purchasers
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Revlon Consumer Products Corporation, a Delaware corporation
("Revlon" or the "Issuer"), proposes to issue and sell $80,000,000 aggregate
principal amount of its 9 1/2% Senior Notes Due 2011 (the "Notes"). The Notes
will be issued as additional securities under the Indenture dated as of March
16, 2005 (the "Indenture"), between the Issuer and U.S. Bank National
Association, as trustee (the "Trustee"). The Issuer previously issued
$310,000,000 aggregate principal amount of 9 1/2% Senior Notes due 2011 pursuant
to the Indenture (the "Existing Notes"). The Issuer hereby confirms its
agreement with Citigroup Global Markets Inc., as representative (the
"Representative") of certain initial purchasers listed on Schedule 1 (the
"Initial Purchasers"), concerning the purchase of the Notes from the Issuer by
the Initial Purchasers.
The Notes will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon an exemption therefrom. Prior to the Closing
Date (as defined herein), the Issuer will deliver to the Initial Purchasers an
offering memorandum dated the date hereof (including the Incorporated Documents
(as defined below), the "Offering Memorandum") setting forth information
concerning Revlon and the Notes. Any references herein to the Offering
Memorandum shall be deemed to include all amendments and supplements thereto,
unless otherwise noted, and all documents (the "Incorporated Documents")
incorporated by reference therein and filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"); and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Offering Memorandum
shall be deemed to refer to and include the filing of any document under the
Exchange Act subsequent to the date thereof and before the Closing Date that is
incorporated by reference therein. Revlon hereby confirms that it has authorized
the use of the Incorporated Documents and the Offering Memorandum in connection
with the offering and resale of the Notes by the Initial Purchasers in
accordance with Section 2 hereof.
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Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Offering Memorandum.
Holders of the Notes (including the Initial Purchasers and
their direct and indirect transferees) will be entitled to the benefits of a
Registration Agreement, substantially in the form attached hereto as Annex A
(the "Registration Agreement"), pursuant to which Revlon will agree to file with
the Securities and Exchange Commission (the "Commission") (i) a registration
statement under the Securities Act (the "Exchange Offer Registration Statement")
registering an issue of senior unsecured notes of Revlon (the "Exchange Notes"),
which are 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) and (ii) under certain circumstances, a shelf
registration statement pursuant to Rule 415 under the Securities Act.
Section 1. Representations, Warranties and Agreements of the
Issuer. (a) The Issuer represents and warrants to, and agrees with, the Initial
Purchasers on and as of the date hereof and the Closing Date, except to the
extent such representation, warranty or agreement expressly relates to another
date (in which case on and as of such date), that:
(i) As of their respective filing dates with the Commission,
the Incorporated Documents did not contain, and as of the Closing Date, the
Offering Memorandum shall not contain, any untrue statement of a material fact
and as of their respective filing dates with the Commission, the Incorporated
Documents did not omit, and as of the Closing Date, the Offering Memorandum
shall not omit, to state a material fact necessary to make the statements made,
in the light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Offering Memorandum made
in reliance upon and in conformity with information furnished to the Issuer in
writing by the Initial Purchasers expressly for use therein (the "Initial
Purchasers' Information"). The parties hereto acknowledge and agree that the
Initial Purchasers' Information consists solely of the statements with respect
to the last paragraph of the cover page regarding the delivery of the Notes and
paragraphs 3, 10 and 11 and the sixth, seventh and eighth sentences of paragraph
9 under the caption "Plan of Distribution" in the Offering Memorandum.
(ii) When the Notes are issued and delivered pursuant to this
Agreement, such Notes will not be of the same class (within the meaning of Rule
144A under the Securities Act) as securities of the Issuer which are listed on a
national securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated interdealer quotation system.
(iii) Neither the Issuer nor any of its affiliates (as defined
in Rule 501(b) under the Securities Act) has, within the six-month period prior
to the date hereof, directly or through any agent, sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of the sale of, any
security (as defined in the Securities Act) by or for the Issuer that is of the
same or similar class as the Notes (other than sales, offers or
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solicitations of offers with respect to the Exchange Notes) in a manner that
would require the registration of the Notes under the Securities Act.
(iv) The Issuer has not taken, directly or indirectly, any
action designed to or that has constituted or that might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Notes.
(v) Neither the Issuer nor any of its affiliates (as defined
in Rule 501(b) under the Securities Act) or any person acting on their behalf
has (A) engaged, in connection with the offering of the Notes, in any form of
general solicitation or general advertising (as those terms are used within the
meaning of Regulation D under the Securities Act); or (B) solicited offers for,
or offered or sold, such Notes by means of any form of general solicitation or
general advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the Securities Act.
(vi) KPMG LLP ("KPMG") is an independent registered public
accounting firm with respect to Revlon as required by the Securities Act and the
rules and regulations of the Commission thereunder (the "Securities Act
Regulations").
(vii) The historical consolidated financial statements of
Revlon, together with the related notes, included in the Incorporated Documents
(the "Incorporated Financial Statements") present fairly, in all material
respects, the financial position of Revlon and its consolidated subsidiaries as
of the dates indicated and the results of their operations for the periods
specified; except as otherwise stated in the Offering Memorandum, the
Incorporated Financial Statements have been prepared in conformity with
generally accepted accounting principles in the United States applied on a
consistent basis and the supporting schedule incorporated in the Offering
Memorandum present fairly, in all material respects, the information required to
be stated therein.
(viii) [Intentionally Omitted]
(ix) Since December 31, 2004, except as otherwise reflected in
the Offering Memorandum, (A) the Issuer and the Subsidiaries (as defined herein)
considered as one enterprise, have not suffered a Material Adverse Effect (as
defined herein), (B) there have been no transactions entered into by the Issuer
or any of the Subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Issuer and the Subsidiaries considered as
one enterprise, and (C) there has been no dividend or distribution of any kind
declared, paid or made by the Issuer on any class of capital stock.
(x) The Issuer (A) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, (B) has the corporate power and corporate authority to own, lease and
operate its properties and to conduct its business as such business is described
in the Offering Memorandum, and to enter into and perform its obligations under
this Agreement, the Registration Agreement
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and the Indenture and (C) is duly qualified as a foreign corporation to conduct
its business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify is
not reasonably likely to have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or business
prospects of Revlon and the Subsidiaries considered as one enterprise (a
"Material Adverse Effect").
(xi) Each significant subsidiary (as defined in Rule 1-02(w)
of Regulation S-X) of Revlon and each subsidiary of Revlon that has material
assets or is subject to material contracts (each of such corporations or other
legal entities being hereinafter referred to as a "Subsidiary" and all such
corporations or other legal entities being, collectively, the "Subsidiaries")
has been duly incorporated or organized and is validly existing as a corporation
or other legal entity and is, in jurisdictions where the legal concept exists,
in good standing under the laws of the jurisdiction of its incorporation or
other organization, has corporate or other power and corporate or other
authority to own, lease and operate its properties and to conduct its business
as currently conducted, and is duly registered or qualified to transact business
and is in good standing in each jurisdiction in which such registration or
qualification or good standing is required, whether by reason of the ownership
or leasing of property, the conduct of business or otherwise, except where the
failure to so register or qualify or be in good standing is not reasonably
likely to have a Material Adverse Effect and except for jurisdictions not
recognizing the legal concepts of good standing or qualification; all of the
issued and outstanding capital stock of or other equity interest in each such
Subsidiary of Revlon has been duly authorized and validly issued, is fully paid
and nonassessable (in jurisdictions where such legal concepts are recognized)
and is owned by Revlon, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien or encumbrance, claim or equity
(collectively, "Liens"), except Liens pursuant to, permitted under or
contemplated by (1) the Credit Agreement, dated as of July 9, 2004, among
Revlon, certain of its subsidiaries as local borrowing subsidiaries, the lenders
and issuing lenders party thereto, Citicorp USA, Inc., as term loan
administrative agent, Citicorp USA, Inc., as multi-currency administrative
agent, Citicorp USA, Inc., as collateral agent, UBS Securities LLC, as
syndication agent and Citigroup Global Markets Inc., as sole lead arranger and
sole bookrunner (as amended to the date hereof, the "Credit Agreement"), (2) the
Pledge and Security Agreement, dated as of July 9, 2004, among Revlon, Inc., the
Issuer and the additional grantors party thereto, in favor of Citicorp USA,
Inc., as collateral agent (as amended to the date hereof, the "Pledge and
Security Agreement") and (3) the Intercreditor and Collateral Agency Agreement,
dated as of July 9, 2004, among Citicorp USA, Inc., as administrative agent for
the multi-currency lenders and issuing lenders, Citicorp USA, Inc., as
administrative agent for the term loan lenders, Citicorp USA, Inc., as
collateral agent for the secured parties, Revlon, Inc., the Issuer and each
other loan party (as amended to the date hereof, the "Collateral Agency
Agreement").
(xii) As of the date hereof, Revlon has outstanding 5,260
shares of Common Stock, par value $1.00 per share, and 546 shares of Series A
preferred stock,
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par value $1.00 per share; all the outstanding shares of capital stock of Revlon
have been duly authorized and validly issued and are fully paid and
nonassessable.
(xiii) Except as described in the Offering Memorandum, there
are no outstanding rights, warrants or options to acquire, or instruments
convertible into or exchangeable for, or agreements or understandings with
respect to the sale or issuance of, any shares of capital stock of or other
equity interest in Revlon.
(xiv) The Notes have been duly and validly authorized by the
Issuer, and the Notes, when authenticated by the Trustee and paid for by the
Initial Purchasers and delivered in accordance with this Agreement and the
Indenture, which was duly authorized, executed and delivered by the Issuer, will
constitute valid and binding obligations of the Issuer, enforceable against the
Issuer in accordance with their terms and entitled to the benefits provided by
the Indenture, except as such enforcement may be subject to or limited by (A)
bankruptcy, receivership, conservatorship, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights and remedies generally and (B) general
principles of equity (regardless of whether such enforcement may be sought in a
proceeding in equity or at law). The Notes will conform in all material respects
to the description thereof contained in the Offering Memorandum and will
constitute Additional Notes (as such term is defined in the Indenture) issued in
compliance with the Indenture, including Sections 2.1, 2.3 and 4.3 thereof.
(xv) This Agreement has been duly and validly authorized,
executed and delivered by Revlon and, when duly executed and delivered by the
other party hereto, will constitute a valid and binding obligation of Revlon
enforceable against Revlon in accordance with its terms, except as such
enforcement may be subject to or limited by (A) bankruptcy, receivership,
conservatorship, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights
and remedies generally and (B) general principles of equity (regardless of
whether such enforcement may be sought in a proceeding in equity or at law) and
except as rights to indemnity and contribution hereunder may be limited by state
or federal securities laws or the public policy underlying such laws.
(xvi) The Indenture was duly and validly authorized, executed
and delivered by the Issuer as of March 16, 2005, and assuming the due execution
and delivery thereof by the Trustee, constitutes a valid and binding obligation
of the Issuer, enforceable against the Issuer in accordance with its terms,
except as such enforcement may be subject to or limited by (A) bankruptcy,
receivership, conservatorship, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect relating
to creditors, rights and remedies generally and (B) general principles of equity
(regardless of whether such enforcement may be sought in a proceeding in equity
or at law). The Indenture conforms in all material respects to the description
thereof contained in the Offering Memorandum.
(xvii) [Intentionally Omitted]
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(xviii) As of the Closing Date, the Registration Agreement
will have been duly and validly authorized, executed and delivered by Revlon,
and when duly executed and delivered by the Initial Purchasers, will constitute
a valid and binding obligation of Revlon, enforceable against Revlon in
accordance with its terms, except as such enforcement may be subject to or
limited by (A) bankruptcy, receivership, conservatorship, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights and remedies generally and (B)
general principles of equity (regardless of whether such enforcement may be
sought in a proceeding in equity or at law) and except as rights to indemnity
and contribution thereunder may be limited by state or federal securities laws
or the public policy underlying such laws. The provisions of the Registration
Agreement, to the extent that such provisions are summarized in the Offering
Memorandum, will conform in all material respects to such descriptions.
(xix) [Intentionally Omitted]
(xx) (A) Neither Revlon nor any of the Subsidiaries is in
violation of its certificate of incorporation, charter or by-laws or other
similar constituent instrument; (B) neither Revlon nor any of the Subsidiaries
is in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which any of them is a party or by
which any of them may be bound, or to which any of the property or assets of any
of them is subject; (C) neither Revlon nor any of the Subsidiaries is in
violation of any material law, administrative regulation or administrative or
court decree and (D) Revlon's execution, delivery and performance of this
Agreement and the Registration Agreement, including compliance with the terms
and provisions hereof and thereof, and the consummation of the transactions
contemplated herein and therein, will not conflict with or constitute a breach
of, or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of Revlon or any of the
Subsidiaries pursuant to the certificate of incorporation, charter, by-laws or
other organizational documents of Revlon or any of the Subsidiaries, any
material law, administrative regulation or administrative court decree and any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which any of them is a party or by which any of them may be bound or to which
any of the property or assets of any of them is subject, except such violations,
defaults, conflicts, breaches, liens, charges or encumbrances referred to in
clauses (B), (C) or (D) that would not have a Material Adverse Effect.
(xxi) Except as disclosed in the Offering Memorandum, there is
no action, suit or proceeding before or by any court or governmental agency, or
body, domestic or foreign, now pending, or to the knowledge of Revlon or any of
the Subsidiaries, threatened against or affecting Revlon or any of the
Subsidiaries that is reasonably likely to have a Material Adverse Effect, or
which would materially or adversely affect the consummation of the transactions
contemplated by this Agreement; and all pending legal or governmental
proceedings to which Revlon or any Subsidiary is a party or of which any of
their respective property or assets is the subject which are not described in
the Offering Memorandum, including ordinary routine litigation incidental to the
business of
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Revlon and the Subsidiaries, considered in the aggregate, are not reasonably
likely to have a Material Adverse Effect.
(xxii) (A) On the Closing Date, Revlon and the Subsidiaries
own or possess the legal right to utilize the patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names and other intangible
property currently employed by them in connection with the business now operated
by them (the "Intellectual Property Rights") except (i) for restrictions on
ownership, if any, arising out of the security interest in such Intellectual
Property Rights pursuant to, permitted under or contemplated by the security
documents relating to the Credit Agreement, the Pledge and Security Agreement
and the Collateral Agency Agreement or (ii) where the failure to so own or
possess such legal right would not have a Material Adverse Effect; (B) no claim
has been made to Revlon or any of the Subsidiaries or, to the knowledge of
Revlon or any of the Subsidiaries, threatened by any person, challenging or
questioning Revlon's or any of the Subsidiaries' use of any of the foregoing
Intellectual Property Rights or challenging or questioning the validity or legal
effectiveness of any of the foregoing Intellectual Property Rights or any
agreement related thereto, in each case where such claim would be reasonably
likely to have a Material Adverse Effect, and there is no valid basis for any
such claim; and (C) the use of any of the foregoing Intellectual Property Rights
by Revlon or any of the Subsidiaries does not infringe on the proprietary rights
of any person, other than any such violations that would not, individually or in
the aggregate, be reasonably likely to have a Material Adverse Effect.
(xxiii) Assuming the accuracy of the representations and
warranties of the Initial Purchasers contained in Section 2 hereof, no
authorization, approval or consent of, or filing with, any court or governmental
authority or agency is necessary or required in connection with the consummation
of the transactions contemplated by this Agreement, the Registration Agreement
or the Indenture or the use of the proceeds from the sale of the Notes as
contemplated by the Offering Memorandum, except such as have been obtained or
made and except as may be required under the Securities Act and the Securities
Act Regulations with respect to the Registration Agreement and the transactions
contemplated thereunder or state or foreign securities laws.
(xxiv) Revlon and each of the Subsidiaries have good (and, in
the case of owned real properties, marketable) title to its respective owned
properties and other tangible assets, free and clear of all Liens except (a) as
set forth in the Offering Memorandum, (b) Liens pursuant to, permitted under or
contemplated by the Credit Agreement, the Pledge and Security Agreement and the
Collateral Agency Agreement or other Security Documents (as defined in the
Credit Agreement), and (c) for such defects in titles and Liens that do not
materially interfere with the Issuer's or any of the Subsidiaries' ability to
conduct their respective businesses as described in the Offering Memorandum or
to utilize such properties and assets for their intended purposes. The tangible
properties of Revlon and each of the Subsidiaries are in good repair (reasonable
wear and tear excepted), appropriately insured and suitable for their uses
except where the failure to be in such good repair or appropriately insured or
suitable for their uses
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would, individually or in the aggregate, not be reasonably likely to have a
Material Adverse Effect. The real properties identified in the Offering
Memorandum as held under lease by Revlon or any of the Subsidiaries are and will
be held by them under valid, subsisting and enforceable leases which are and
will be in full force and effect except where the failure to be valid,
subsisting, enforceable and in full force and effect would not, individually or
in the aggregate, be reasonably likely to have a Material Adverse Effect, and no
default by Revlon or any of the Subsidiaries is existing under any such lease
which could result in termination of one or more of such leases by the lessor
without regard to notice or passage of time, which termination(s), individually
or in the aggregate, would be reasonably likely to have a Material Adverse
Effect.
(xxv) Each of Revlon and the Subsidiaries is in material
compliance with all applicable federal, state and local environmental laws and
regulations, including, without limitation, those applicable to emissions to the
environment, waste management, and waste disposal (collectively, the
"Environmental Laws"), except for such noncompliance as is not reasonably likely
to have a Material Adverse Effect. Except as disclosed in the Offering
Memorandum, compliance with Environmental Laws will not have a material adverse
effect upon the capital expenditures, earnings and competitive position of
Revlon and the Subsidiaries taken as one enterprise, and there are no material
estimated capital expenditures for environmental control facilities for the
current and succeeding fiscal year.
(xxvi) There is no claim under any Environmental Law,
including common law, pending or threatened against Revlon or any of the
Subsidiaries (an "Environmental Claim"), which would be reasonably likely to
have a Material Adverse Effect and, to the knowledge of Revlon and the
Subsidiaries under applicable law, there are no past or present actions,
activities, circumstances, events or incidents, including, without limitation,
releases of any material into the environment, that are reasonably likely to
form the basis of any Environmental Claim against Revlon or any of the
Subsidiaries which would be reasonably likely to have a Material Adverse Effect.
(xxvii) Revlon is not, and does not own or control, an
open-end investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act of 1940 (the "Investment Company Act"), and Revlon is
not, and does not own or control, a closed-end investment company required to be
registered, but not registered, thereunder.
(xxviii) The Issuer has established and maintains disclosure
controls and procedures (as such term is defined in Rule 15d-15(e) under the
Exchange Act); such disclosure controls and procedures are designed to ensure
that material information relating to the Issuer, including its consolidated
subsidiaries, is made known to the chief executive officer and chief financial
officer of the Issuer by others within the Issuer, or any of its consolidated
subsidiaries; the Issuer's auditors and the audit committee of the board of
directors of the Issuer have been advised of: (A) any significant deficiencies
and material weaknesses in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect the Issuer's
ability to record, process, summarize, and report financial information; and (B)
any fraud, whether or not
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material, that involves management or other employees who have a significant
role in the Issuer's internal control over financial reporting; and since the
date of the most recent evaluation of such disclosure controls and procedures
(as summarized in Item 4 of the Issuer's Quarterly Report on Form 10-Q for the
quarter ended June 30, 2005), there have been no significant changes in internal
control over financial reporting that have materially affected, or are
reasonably likely to materially affect, internal control over financial
reporting.
(xxix) There is and has been no failure on the part of the
Issuer and any of the Issuer's directors or officers, in their capacities as
such, to comply with Section 402 related to loans and, in all material respects,
with Sections 302 and 906 related to certifications of the Sarbanes Oxley Act of
2002 and the rules and regulations promulgated in connection therewith.
(b) Any certificate of Revlon or any of the Subsidiaries
signed by any officer thereof and delivered to the Initial Purchasers or to
counsel for the Initial Purchasers shall be deemed a representation and warranty
by such entity to the Initial Purchasers as to the matters covered thereby and
not the representation and warranty of any such officer.
Section 2. Purchase, Sale and Resale of the Notes, Closing.
(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Issuer agrees to sell
to the Initial Purchasers, and each of the Initial Purchasers, severally and not
jointly, agrees to purchase from the Issuer a portion of the aggregate principal
amount of the Notes, equal to the percentages set forth opposite such Initial
Purchaser's name in Schedule 1 hereto, at the aggregate purchase price of
of the aggregate principal amount thereof plus accrued interest from March 16,
2005 to the Closing Date (as defined below), less a discount of .
(b) Payment of the purchase price for, and delivery of
certificates for, the Notes shall be made at the office of Cravath, Swaine &
▇▇▇▇▇ LLP ("CS&M"), ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such
other place as shall be agreed upon by the Initial Purchasers and the Issuer, at
10 a.m. (New York time) on August 16, 2005, or such other time as shall be
agreed upon by the Initial Purchasers and the Issuer (such time and date of
payment and delivery being herein called the "Closing Date"). Payment shall be
made to the Issuer by wire transfer in same day funds, in the aggregate amount
of of the aggregate principal amount of the Notes plus accrued interest
from March 16, 2005 to the Closing Date, less a discount of , payable to
the order of the Issuer, against delivery of the Notes to the Initial
Purchasers. The Notes shall be in such denominations and registered in such
names as the Initial Purchasers shall request in writing at least one business
day before the Closing Date. The Notes will be made available for examination
and packaging by the Initial Purchasers not later than 10 a.m. (New York time)
on the last business day prior to the Closing Date.
(c) Each Initial Purchaser acknowledges that the Notes have
not been registered under the Securities Act and may not be offered or sold
except pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the
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Securities Act or pursuant to an effective registration statement under the
Securities Act. Each Initial Purchaser represents and agrees that it has offered
and sold the Notes, and will offer and sell the Notes purchased by it from the
Issuer until the Offering Termination Date (as defined herein), only as
described in the Offering Memorandum under "Plan of Distribution" either (A) (i)
to persons it reasonably believes to be qualified institutional buyers in
accordance with Rule 144A under the Securities Act and (ii) to non-U.S. persons
pursuant to offers and sales that occur outside the United States in accordance
with Regulation S under the Securities Act or (B) pursuant to an effective
registration statement under the Securities Act. Accordingly, each Initial
Purchaser represents and warrants to and agrees with the Issuer that, with
respect to Notes offered or sold in reliance on Regulation S (i) neither it nor
any of its affiliates, nor any persons acting on its or their behalf, have
engaged or will engage in any directed selling efforts (as defined in Rule 902
under the Securities Act) in the United States with respect to the Notes, (ii)
its affiliates and all persons acting on its or their behalf have complied and
will comply with the offering restrictions requirement of Regulation S and (iii)
at or prior to confirmation of sale of Notes made in reliance on Regulation S,
it will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases the Notes from it during
the restricted period a confirmation or notice to substantially the following
effect:
"The Notes covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered or sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of a distribution thereof at any
time or (ii) otherwise until 40 days after the later of the date of the
commencement of the offering and the closing date, except in either
case in accordance with Regulation S under the Securities Act. Terms
used above have the meanings given them by Regulation S."
Certain terms used in this paragraph have the meanings given
to them by Regulation S.
(d) Each Initial Purchaser represents and agrees that it has
not, and will not, offer or sell any Notes by means of any form of general
solicitation or general advertising (as those terms are used in Rule 502(c)
under Regulation D) including, but not limited to (i) any advertisement,
article, notice or other communication published in any newspaper, magazine or
similar media or broadcast over television or radio, or (ii) any seminar or
meeting whose attendees have been invited by any general solicitation or general
advertising; provided, however, that such limitation shall not preclude the
Initial Purchasers from placing any tombstone advertisement, in a form
reasonably satisfactory to the Issuer, with respect to the resale of the Notes
following the Offering Termination Date (as defined below), in compliance with
applicable law. Each Initial Purchaser will take reasonable steps to inform
persons acquiring Notes from such Initial Purchaser in the United States that
the Notes are being sold to them without registration under the Securities Act
in reliance on Rule 144A.
As used in this Agreement, "Offering Termination Date" shall
mean the earliest to occur of (i) the date on which the Initial Purchasers shall
have completed the
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initial resales of the Notes, which is deemed to be the business day after the
Closing Date, unless on such day the Initial Purchasers notify Revlon that they
have not completed the initial resales of Notes in which case it shall be such
later date on which the Initial Purchasers notify Revlon that they have
completed the initial resales of the Notes, (ii) the effective date of the
Registration Statement to be filed by Revlon with the Commission pursuant to
Section 2 of the Registration Agreement and (iii) the second anniversary of the
Closing Date.
(e) Each Initial Purchaser represents and agrees that (i) it
has not solicited, and will not solicit, offers to purchase any of the Notes
from, (ii) it has not sold, and will not sell, any of the Notes to, and (iii) it
has not distributed, and will not distribute, the Incorporated Documents or the
Offering Memorandum to, any person or entity in any jurisdiction outside of the
United States except, in each case, in compliance in all material respects with
all applicable laws. For the purposes of this Agreement, "United States" means
the United States of America, its territories, its possessions (including the
Commonwealth of Puerto Rico), and other areas subject to its jurisdiction.
(f) Each Initial Purchaser severally agrees that (i) it has
not offered or sold, and prior to the expiry of six months from the closing
date, will not offer or sell, any Notes to persons in the United Kingdom except
to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995; (ii) it has only communicated
and caused to be communicated and will only communicate or cause to be
communicated any invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the United Kingdom's Financial Services and
Markets Act 2000 ("FSMA")) received by it in connection with the issue or sale
of any Notes in the circumstances in which Section 21(1) of the FSMA does not
apply to the Issuer; and (iii) it has complied and will comply with all
applicable provisions of the FSMA with respect to anything done by it in
relation to the Notes in, from or otherwise involving the United Kingdom.
(g) Each Initial Purchaser represents and agrees that, unless
prohibited by applicable law, until the consummation of the distribution of the
Notes, it will furnish to each person to whom it sells the Notes a copy of the
Offering Memorandum (as then amended or supplemented) or (unless delivery of
such Offering Memorandum is required by applicable law) shall inform each such
person that a copy of such Offering Memorandum will be available upon request.
(h) Each Initial Purchaser represents and warrants (as to
itself only) to the Issuer as of the date hereof and as of the Closing Date that
it is a qualified institutional buyer as defined in Rule 144A under the
Securities Act, as such rule may be amended from time to time.
Section 3. Certain Agreements of the Issuer. The Issuer agrees
with the Initial Purchasers that:
12
(a) At any time prior to the Offering Termination Date, the
Issuer will give the Initial Purchasers notice of its intention to prepare any
supplement or amendment to the Offering Memorandum, will furnish the Initial
Purchasers with copies of any such amendment, supplement or other document in a
reasonable amount of time prior to such proposed filing or use, and will use its
best efforts to reflect in such document such comments as the Initial Purchasers
or its counsel may reasonably propose.
(b) The Issuer has furnished or will furnish to the Initial
Purchasers, without charge, such number of copies of the Offering Memorandum (as
amended or supplemented) as the Initial Purchasers may reasonably request. The
Issuer will, upon request, furnish to the Initial Purchasers and any holder of
the Notes, a copy of the information set forth under "Notice to Investors" in
the Offering Memorandum.
(c) At any time prior to the Offering Termination Date, if any
event shall occur as a result of which the Offering Memorandum (as amended or
supplemented) would include any 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, or if it should
be necessary to amend or supplement the Offering Memorandum to comply with
applicable law, the Issuer will promptly (i) notify the Initial Purchasers of
any such event; (ii) prepare an amendment or supplement that will correct such
statement or omission or effect such compliance; and (iii) supply any
supplemented or amended Offering Memorandum to the several Initial Purchasers
and counsel for the Initial Purchasers without charge in such quantities as they
may reasonably request.
(d) The Issuer will endeavor, in cooperation with the Initial
Purchasers and their counsel, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Initial Purchasers may designate; provided, however, that
the Issuer shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or take any action that would
subject it to general service of process in suits or taxation in any
jurisdiction where it is not so subject. In each jurisdiction in which the Notes
have been so qualified, the Issuer will file such statements and reports as may
be required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the date of the Offering
Memorandum.
(e) Revlon is not and will not become an open-end investment
company, unit investment trust or face-amount certificate company that is or is
required to be registered under the Investment Company Act, and Revlon is not
and will not become a closed-end investment company required to be registered,
but not registered, thereunder.
(f) Neither the Issuer nor any of the Subsidiaries will
solicit any offer to buy or offer or sell the Notes by means of any form of
general solicitation or general advertising (as those terms are used in Rule
502(c) under Regulation D) prior to the Offering Termination Date.
13
(g) The Issuer will not take, directly or indirectly, any
action designed to or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the Issuer to
facilitate the sale or resale of the Notes.
(h) Except following the effectiveness of the Exchange Offer
Registration Statement to be filed by the Issuer with the Commission pursuant to
Section 1 of the Registration Agreement, neither the Issuer nor any of its
affiliates (as defined in Rule 501(b) under Regulation D) will solicit any offer
to buy or offer or sell the Notes or the Exchange Notes by means of any form of
general solicitation or general advertising (within the meaning of Rule 502(c)
under Regulation D) in a manner which would result in the proposed sale of the
Notes or the Exchange Notes in accordance with this Agreement, the Registration
Agreement and the Offering Memorandum failing to be exempt from the registration
requirements of the Securities Act or take any other action that would require
the registration of the resale by the Initial Purchasers of the Notes under the
Securities Act.
(i) Except following the effectiveness of the Exchange Offer
Registration Statement to be filed by the Issuer with the Commission pursuant to
Section 1 of the Registration Agreement, none of the Issuer, any of its
affiliates or any person acting on behalf of the Issuer or its affiliates will
engage in any directed selling efforts within the meaning of Rule 902(b) under
Regulation S, and the Issuer and its affiliates and each such person acting on
their behalf will comply with the offering restrictions requirements of
Regulation S.
(j) Neither the Issuer nor its affiliates (as defined in Rule
501(b) under Regulation D) will sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Securities
Act) the offering of which security will be integrated with the sale of the
Notes in a manner that would require the registration of the Notes under the
Securities Act.
(k) During the period from the Closing Date to two years after
the Closing Date, without the prior written consent of the Initial Purchasers,
neither the Issuer nor the Subsidiaries will, or will permit any of their
affiliates (as defined in Rule 144 under the Securities Act) to, resell any of
the Notes that have been reacquired by them, except for the Notes purchased by
the Issuer or any of its affiliates (as defined in Rule 144 under the Securities
Act) and resold in a transaction registered under the Securities Act.
(l) The Issuer will make available to holders of the Notes and
prospective purchasers of the Notes designated by such holders, upon request of
such holders or such prospective purchasers, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act to the extent
required to permit compliance with Rule 144A in connection with resales of the
Notes.
(m) The Issuer will, if requested by the Initial Purchasers,
use its best efforts in cooperation with the Initial Purchasers to permit the
Notes to be eligible for clearance and settlement through The Depository Trust
Company ("DTC").
14
(n) The Issuer will use the net proceeds received by it from
the sale of the Notes in the manner specified in the Offering Memorandum under
the heading "Use of Proceeds."
(o) Prior to the Closing Date, except for press releases and
communications regarding Revlon's business, products and management made in the
ordinary course and consistent with past practice, neither the Issuer nor any of
the Subsidiaries will issue any press release or other communications directly
or indirectly or hold any press conference with respect to the Issuer or any of
the Subsidiaries, the condition, financial or otherwise, or the earnings,
business affairs or business prospects of any of them, without the prior written
consent of the Representative, unless in the judgment of the Issuer and its
counsel, and after notification to the Representative, such press release or
communication is required by law, or by the rules, regulations or standards of
the Commission or the New York Stock Exchange.
(p) For a period of 90 days from the date of the Offering
Memorandum, Revlon shall not offer for sale, sell, contract to sell or otherwise
dispose of, directly or indirectly, or file a registration statement for, or
announce any offer to sell, sale, contract for sale of or other disposition of
any debt securities issued or guaranteed by Revlon or any of the Subsidiaries
(other than the Notes or the Exchange Notes or to an affiliate of Revlon which
agrees to be bound by the provisions of this Section) without the prior written
consent of Citigroup Global Markets Inc.
Section 4. Conditions of Initial Purchasers' Obligations. The
respective obligations of the Initial Purchasers hereunder are subject to the
accuracy, on and as of the date hereof and the Closing Date, of the
representations and warranties of the Issuer contained herein, to the accuracy
of the statements of the Issuer and its officers made in any certificate
delivered pursuant hereto, to the performance by the Issuer of its obligations
hereunder, and to each of the following additional terms and conditions:
(a) The Offering Memorandum (and any amendments or supplements
thereto) shall have been printed and copies distributed to the Initial
Purchasers as promptly as practicable following the date of this Agreement.
(b) On the Closing Date, counsel for the Initial Purchasers
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Notes as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions herein contained; and all proceedings
taken by the Issuer in connection with the issuance and sale of the Notes, as
herein contemplated, shall be reasonably satisfactory in form and substance to
the Initial Purchasers and counsel for the Initial Purchasers.
(c) On the Closing Date, each of (i) Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, as special counsel to the Issuer, (ii) ▇▇▇▇, Weiss, Rifkind,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special counsel to the Issuer, and (iii) ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Executive Vice President and General Counsel of the Issuer, shall have
furnished to the Initial Purchasers
15
their written opinions addressed to the Initial Purchasers and dated the Closing
Date in the form set forth in Annex B, Annex C and Annex D, respectively hereto.
(d) On the Closing Date, the Initial Purchasers shall have
received from CS&M, special counsel for the Initial Purchasers, such opinion or
opinions, dated the Closing Date, with respect to such matters as the Initial
Purchasers may reasonably require, and the Issuer shall have furnished to such
counsel such documents and information as they request for the purpose of
enabling them to pass upon such matters.
(e) Revlon shall have furnished to the Initial Purchasers a
letter (the "Comfort Letter") of KPMG, addressed to the Initial Purchasers and
dated the date of this Agreement, in form and substance satisfactory to the
Initial Purchasers.
(f) Revlon shall have furnished to the Initial Purchasers a
"bring-down" Comfort Letter of KPMG, addressed to the Initial Purchasers and
dated the Closing Date, in form and substance satisfactory to the Initial
Purchasers.
(g) On the Closing Date, the Initial Purchasers shall have
received a certificate of the Issuer, signed by the Issuer through its President
or a Vice President and its chief financial or chief accounting officer, dated
as of the Closing Date, to the effect that (i) there has been no material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Issuer and the Subsidiaries,
considered as one enterprise, except as set forth in or contemplated by the
Offering Memorandum, (ii) the representations and warranties set forth in
Section 1 hereof are true and correct with the same force and effect as though
expressly made at and as of the Closing Date and (iii) the Issuer has complied
in all material respects with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date.
(h) On the Closing Date, the Initial Purchasers shall have
received a counterpart of the Registration Agreement which shall have been
executed and delivered by duly authorized officers of the Issuer.
(i) On the Closing Date, the Notes shall have been duly
executed and delivered by the Issuer and duly authenticated by the Trustee.
(j) The Notes shall have been approved by the NASD for trading
in the PORTAL market.
(k) [Intentionally Omitted]
(l) If any event shall have occurred that requires the Issuer
under Section 3(c) to prepare an amendment or supplement to the Offering
Memorandum, such amendment or supplement shall have been prepared, the Initial
Purchasers shall have been given a reasonable opportunity to comment thereon,
and copies thereof shall have been delivered to the Initial Purchasers
reasonably in advance of the Closing Date.
16
(m) There shall not have occurred any invalidation of Rule
144A under the Securities Act by any court or any withdrawal or proposed
withdrawal of any rule or regulation under the Securities Act or the Exchange
Act by the Commission or any amendment or proposed amendment thereof by the
Commission which in the judgment of the Initial Purchasers would materially
impair the ability of the Initial Purchasers to purchase, hold or effect resales
of the Notes as contemplated hereby.
(n) Subsequent to the execution and delivery of this Agreement
or, if earlier, the dates as of which information is given in the Offering
Memorandum (exclusive of any amendment or supplement thereto), there shall not
have been any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Issuer and the
Subsidiaries considered as one enterprise, the effect of which is, in the
judgment of the Initial Purchasers, so material and adverse as to make it
impracticable or inadvisable to proceed with the sale or delivery of the Notes
on the terms and in the manner contemplated by this Agreement and the Offering
Memorandum (exclusive of any amendment or supplement thereto).
(o) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency or body which would, as of the Closing Date, prevent the
issuance or sale of the Notes; and no injunction, restraining order or order of
any other nature by any federal or state court of competent jurisdiction shall
have been issued as of the Closing Date which would prevent the issuance or sale
of the Notes.
(p) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the Notes, the
Existing Notes or any of the Issuer's or any of the Subsidiaries' other debt
securities by any "nationally recognized statistical rating organization", as
such term is defined by the Commission for purposes of Rule 436(g)(2) of the
rules and regulations of the Commission under the Securities Act and (ii) no
such organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of the Notes or any
of the Issuer's or any of the Subsidiaries' other debt securities.
(q) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or limited, or minimum prices
shall have been established on any such exchange or market by the Commission, by
any such exchange or by any other regulatory body or governmental authority
having jurisdiction, or trading in any securities of the Issuer on any exchange
or in the over-the-counter market shall have been suspended or (ii) any
moratorium on commercial banking activities shall have been declared by federal
or New York state authorities or (iii) an outbreak or escalation of hostilities
or a declaration by the United States of a national emergency or war or (iv) a
material adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets in the
United States shall be such) the effect of which, in the case of this clause
(iv), is, in the sole judgment of the Initial Purchasers, so material and
adverse as to make it impracticable or inadvisable to
17
proceed with the sale or the delivery of the Notes on the terms and in the
manner contemplated by this Agreement and in the Offering Memorandum (exclusive
of any amendment or supplement thereto).
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Initial Purchasers.
Section 5. Termination. The obligations of the Initial
Purchasers hereunder may be terminated by the Initial Purchasers, in their
absolute discretion, by notice given to and received by the Issuer prior to
delivery of and payment for the Notes if, prior to that time, any of the events
described in Section 4(m), (n), (o), (p) or (q) shall have occurred and be
continuing.
Section 6. Defaulting Initial Purchasers. (a) If any one or
more Initial Purchasers shall fail to purchase and pay for any of the Notes
agreed to be purchased by such Initial Purchaser hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Initial Purchasers shall be
obligated severally to take up and pay for (in the respective proportions which
the principal amount of Notes set forth opposite their names on Schedule 1
hereto bears to the aggregate principal amount of Notes set forth opposite the
names of all the remaining Initial Purchasers) the Notes which the defaulting
Initial Purchaser or Initial Purchasers agreed but failed to purchase; provided,
however, that in the event that the aggregate principal amount of Notes which
the defaulting Initial Purchaser or Initial Purchasers agreed but failed to
purchase shall exceed 10% of the aggregate principal amount of Notes set forth
on Schedule 1 hereto, the remaining Initial Purchasers shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Notes, and if such non-defaulting Initial Purchasers do not purchase all the
Notes, this Agreement will terminate without liability to any non-defaulting
Initial Purchaser or the Issuer.
(b) Nothing contained herein shall relieve a defaulting
Initial Purchaser of any liability it may have to the Issuer or any
non-defaulting Initial Purchaser for damages caused by its default. In the event
of a default by any Initial Purchaser as set forth in Section 6(a), the
non-defaulting Initial Purchasers or Revlon may postpone the Closing Date for up
to seven full business days in order to effect any changes that in the opinion
of counsel for Revlon or counsel for the Initial Purchasers may be necessary in
the Offering Memorandum or in any other document or arrangement, and Revlon
agrees to promptly prepare any amendment or supplement to the Offering
Memorandum that effects any such changes.
Section 7. Reimbursement of Initial Purchasers' Expenses. If
(a) this Agreement shall have been terminated pursuant to Section 5, except with
respect to any of the events described in Section 4(q) of this Agreement or (b)
the Initial Purchasers shall decline to purchase the Notes for the failure of
the Issuer to satisfy the conditions set forth in Section 4 of this Agreement
other than the condition set forth in Section 4(q) of
18
this Agreement, Revlon shall reimburse the Initial Purchasers for such
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
as shall have been reasonably incurred by the Initial Purchasers in connection
with this Agreement and the proposed purchase and resale of the Notes. If this
Agreement is terminated pursuant to Section 6 by reason of the default of one or
more of the Initial Purchasers, Revlon shall not be obligated to reimburse any
defaulting Initial Purchaser on account of such expenses.
Section 8. Indemnification. (a) Revlon agrees to indemnify and
hold harmless each Initial Purchaser, the directors, officers, employees and
agents of each Initial Purchaser and each person who controls any Initial
Purchaser within the meaning of either the Securities Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Offering
Memorandum (or in any supplement or amendment thereto) or any information
provided by Revlon to any holder or prospective purchaser of Notes pursuant to
Section 3(l), or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
and agrees to reimburse promptly upon demand each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that Revlon will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made in the Offering
Memorandum, or in any amendment thereof or supplement thereto, in reliance upon
and in conformity with any Initial Purchasers Information. This indemnity
agreement will be in addition to any liability which Revlon may otherwise have.
(b) Each Initial Purchaser severally and not jointly agrees to
indemnify and hold harmless Revlon and its directors, officers, employees,
representatives and agents and each person who controls Revlon within the
meaning of either the Securities Act or the Exchange Act, to the same extent as
the foregoing indemnity from Revlon to each Initial Purchaser, but only with
reference to written information relating to such Initial Purchaser Information.
This indemnity agreement will be in addition to any liability which any Initial
Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of any claim or the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of such
19
action and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses; and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled, jointly with any other similarly notified
indemnifying party, to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action; or (iv) the indemnifying
party shall authorize the indemnified party in writing to employ separate
counsel at the expense of the indemnifying party. It is understood, however,
that the indemnifying party shall, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of only one separate firm of attorneys (in addition
to any local counsel) at any time for all such indemnified parties and
controlling persons. An indemnifying party shall not be liable under this
Section 8 to any indemnified party regarding any settlement 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 is consented to by such indemnifying party (which consent
shall not be unreasonably withheld), but if settled with its written consent or
if there be a final judgment for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or judgment.
An indemnifying party will not, without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), 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.
20
Section 9. Contribution. In the event that the indemnity
provided in paragraph (a) or (b) of Section 8 is unavailable to or insufficient
to hold harmless an indemnified party for any reason, Revlon and the Initial
Purchasers severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively "Losses") to
which Revlon and one or more of the Initial Purchasers may be subject in such
proportion as is appropriate to reflect the relative benefits received by Revlon
on the one hand and by the Initial Purchasers on the other from the offering of
the Notes; provided, however, that in no case shall any Initial Purchaser
(except as may be provided in any agreement among the Initial Purchasers
relating to the offering of the Notes) be responsible for any amount in excess
of the purchase discount or commission applicable to the Notes purchased by such
Initial Purchaser hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, Revlon and the Initial
Purchasers severally shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of Revlon on
the one hand and of the Initial Purchasers on the other in connection with the
statements or omissions which resulted in such Losses, as well as any other
relevant equitable considerations. Benefits received by Revlon shall be deemed
to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Initial Purchasers shall
be deemed to be equal to the total purchase discounts and commissions. Relative
fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by
Revlon on the one hand or the Initial Purchasers on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. Revlon and the Initial
Purchasers agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 9, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9, each person who
controls an Initial Purchaser within the meaning of either the Securities Act or
the Exchange Act and each director, officer, employee and agent of an Initial
Purchaser shall have the same rights to contribution as such Initial Purchaser,
and each person who controls Revlon within the meaning of either the Securities
Act or the Exchange Act and each officer and director of Revlon shall have the
same rights to contribution as Revlon, subject in each case to the applicable
terms and conditions of this Section 9.
Section 10. Persons Entitled to Benefit of Agreement. This
Agreement shall inure to the benefit of and be binding upon the Initial
Purchasers, the Issuer and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except as provided in Sections 8 and 9 with respect to affiliates, officers,
directors, employees, representatives, agents and controlling persons of the
Issuer and the Initial Purchasers and in Section 3(l) with respect to holders
and prospective purchasers of the Notes. Nothing in this Agreement is intended
or shall be construed to give any person, other than the persons referred to in
this Section 10, any
21
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
Section 11. Expenses. The Issuer agrees with the Initial
Purchasers to pay (a) the costs incident to the authorization, issuance, sale,
preparation and delivery of the Notes and any taxes payable in that connection;
(b) the costs incident to the preparation, printing and distribution of the
Offering Memorandum and any amendments or supplements thereto; (c) the costs of
reproducing and distributing each of this Agreement, the Indenture and the
Registration Agreement; (d) the costs incident to the preparation, issuance and
delivery of the certificates evidencing the Notes, including stamp duties and
transfer taxes, if any, payable upon issuance of the Notes; (e) the fees and
expenses of the Issuer's counsel and independent accountants; (f) if applicable,
the fees and expenses of qualifying the Notes under the securities laws of the
several jurisdictions as provided in Section 3(d) and of preparing, printing and
distributing Blue Sky Memoranda (including related fees and expenses of counsel
for the Initial Purchasers in connection therewith); (g) if applicable, any fees
charged by rating agencies for rating the Notes; (h) the fees and expenses of
the Trustee and any paying agent (including related fees and expenses of any
counsel to such parties); (i) all expenses and application fees incurred in
connection with the application for the inclusion of the Notes on the PORTAL
market and the approval of the Notes for book-entry transfer by DTC and (j) all
other costs and expenses incident to the performance of the obligations of the
Issuer under this Agreement which are not otherwise specifically provided for in
this Section 11; provided, however, that except as provided in this Section 11
and Section 7, the Initial Purchasers shall pay their own costs and expenses,
including fees and expenses of their counsel, transfer taxes on the resale of
the Notes by any of them and any advertising expenses in connection with any
offers any of them makes.
Section 12. Survival. The respective indemnities, rights of
contribution, representations, warranties and agreements of Revlon and the
Initial Purchasers contained in this Agreement or made by or on behalf of Revlon
or the Initial Purchasers pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the
Notes and shall remain in full force and effect, regardless of any investigation
made by or on behalf of any of them or any of their respective affiliates,
officers, directors, employees, representatives, agents or controlling persons.
The provisions of Sections 7, 8, 9, 11 and this Section 12 hereof shall survive
the termination or cancelation of this Agreement.
Section 13. Notices, etc. All statements, requests, notices
and agreements hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent
by mail or telecopy transmission to Citigroup Global Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: General Counsel (telecopier no.: (212)
816-7912);
(b) if to Revlon, shall be delivered or sent by mail or
telecopy transmission to Revlon Consumer Products Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Executive Vice
President and
22
Chief Legal Officer (telecopier no.: (▇▇▇) ▇▇▇-▇▇▇▇) (with a copy by email to
▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇);
provided that any notice to an Initial Purchaser pursuant to Section 8(c) shall
also be delivered or sent by mail to such Initial Purchaser at its address set
forth on the signature page hereof. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Issuer shall be
entitled to act and rely upon any request, consent, notice or agreement given or
made on behalf of the Initial Purchasers by the Representative.
Section 14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 15. THE PARTIES HERETO HEREBY SUBMIT TO THE EXCLUSIVE
JURISDICTION OF THE FEDERAL AND STATE COURTS IN THE BOROUGH OF MANHATTAN IN THE
CITY OF NEW YORK IN ANY SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 16. Counterparts. This Agreement may be executed in
one or more counterparts (which may include counterparts delivered by
telecopier) and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original, but all such counterparts
shall together constitute one and the same instrument.
Section 17. Amendments. No amendment or waiver of any
provision of this Agreement, nor any consent or approval to any departure
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the parties hereto.
Section 18. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
Section 19. No Fiduciary Duty. The Issuer hereby acknowledges
that in connection with the offering and sale of the Notes (a) each Initial
Purchaser is acting as principal and not as an agent or fiduciary of the Issuer
and (b) its engagement of the Initial Purchasers is as independent contractors
and not in any other capacity. Furthermore, the Issuer agrees that it is solely
responsible for making its own judgments in connection with the offering and
sale of the Notes (irrespective of whether any of the Initial Purchasers have
advised or are currently advising the Issuer on related or other matters).
[rest of the page intentionally left blank]
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between Revlon and the several
Initial Purchasers in accordance with its terms.
Very truly yours,
REVLON CONSUMER PRODUCTS
CORPORATION,
By
-----------------------
Name:
Title:
Accepted:
CITIGROUP GLOBAL MARKETS INC.,
By
-----------------------
Name:
Title:
Address for notices pursuant to Section 8(c):
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
[Purchase Agreement Signature Page]