Exhibit 4.9
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WARRANT REGISTRATION RIGHTS AGREEMENT
FRENCH FRAGRANCES, INC.
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Warrants to Purchase Common Stock
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Dated as of January 23, 2001
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CREDIT SUISSE FIRST BOSTON, CAYMAN ISLANDS BRANCH
FLEET CORPORATE FINANCE, INC.
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This Registration Rights Agreement (this "Agreement") is made and entered
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into as of January 23, 2001, between French Fragrances, Inc., a Florida
corporation (the "Issuer" or the "Company"), and Credit Suisse First Boston,
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Cayman Islands Branch ("CSFB") and Fleet Corporate Finance Inc. ("Fleet" and,
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together with CSFB, the "Initial Holders").
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This Agreement is made pursuant to the Warrant Agreement, dated as of
January 23. 2001 (the "Warrant Agreement") by and between the Company and HSBC
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Bank USA, as initial warrant agent (the "Warrant Agent"), whereby the Company
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proposes to issue warrants (the "Warrants") to initially purchase up to 209,853
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shares of Common Stock, par value $.01 per share (the "Common Stock"), of the
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Company (the Common Stock issuable on exercise of the Warrants being referred to
herein as the "Warrant Shares"), in connection with the commitment by CSFB and
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Fleet to purchase up to $160.0 million aggregate principal amount of Bridge
Notes of the Company, pursuant to a Fee Letter dated November 21, 2000 by and
between CSFB, Fleet and the Company. The Company shall issue 70% of the
Warrants to CSFB and 30% of the Warrants to Fleet.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended.
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Affiliate: As defined in Rule 144.
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Board of Directors: The Board of Directors of the Person or any authorized
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committee of the Board of Directors.
Business Day: Any day other than a Legal Holiday.
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Commission: The Securities and Exchange Commission.
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Exchange Act: The Securities Exchange Act of 1934, as amended.
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Expiration Date: 5:00 p.m. New York City time on January 23, 2011.
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Holders: As defined in Section 2 hereof.
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Legal Holiday: A Saturday, a Sunday or a day on which banking institutions
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in the City of New York remain closed.
Person: Any individual, corporation, partnership, joint venture
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association, joint stock Company, trust, unincorporated organization, limited
liability corporation or government or other entity.
Prospectus: The prospectus included in a Registration Statement at the
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time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments to such
Registration Statement, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
Registrable Securities: The Warrants and the Warrant Shares, provided that
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a security ceases to be a Registrable Security when it is no longer a Transfer
Restricted Security.
Registration Statement: Any registration statement of the Company relating
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to the registration for resale of Registrable Securities that is filed pursuant
to the provisions of this Agreement, and including the Prospectus included
therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
Rule 144: Rule 144 promulgated under the Act.
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Transfer Restricted Securities: Each Registrable Security upon original
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issuance thereof until the earlier to occur of (i) the date on which such
Warrant or Warrant Share (other than any Warrant Share issued upon exercise of a
Warrant in accordance with a Registration Statement) has been disposed of in
accordance with a Registration Statement and (ii) the date on which such Warrant
or Warrant Share (or the related Warrant) is distributed to the public pursuant
to Rule 144 under the Act.
2. HOLDERS
A Person is deemed to be a holder of Registrable Securities (each, a
"Holder") whenever such Person owns Registrable Securities of record or has
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provided evidence reasonably satisfactory to the Company that such Person has
the right to acquire such Registrable Securities, whether or not such
acquisition has actually been effected and disregarding any legal restrictions
upon the exercise of such right.
3. DEMAND REGISTRATIONS
(a) The Company covenants and agrees with each Holder that if on or after
90 days following the date hereof, the Company receives a written request from
Holders of not less than 30% of the then outstanding Registrable Securities,
then within 60 days after receipt of such notice (the 60th day after such
notice, the "Filing Date") the Company shall use its reasonable best efforts to
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file a Registration Statement and cause such Registration Statement to become
effective under the Act at the earliest possible date after such notice (such
date, the "Effectiveness Date") with respect to the offering and sale or other
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disposition of such Registrable Securities as such Holders desire to have
covered by such Registration Statement. The Company shall use its reasonable
best efforts to continuously maintain the effectiveness of such Registration
Statement until the earlier of (i) 360 days after the Effectiveness Date or (ii)
the consummation of the distribution by the Holders of all of the Registrable
Securities covered by such Registration Statement (the "Effectiveness Period").
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If such Registration is an underwritten registration, and the managing
underwriters thereof advise the Company in writing that in their
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opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in such offering without adversely
affecting the marketability of the offering, the Company will include in such
registration (i) first, the Registrable Securities requested to be included in
such registration and (ii) second, other securities of the Company in a primary
offering or requested to be included in such registration pro rata among the
holders of such securities on the basis of the number of shares of Common Stock
owned by each such holder.
Notwithstanding anything in this Agreement to the contrary,
(i) the Company shall not be required to effect more than one
registration pursuant to this Section 3;
(ii) if the intended method of distribution is an underwritten public
offering, the Company shall not be required to effect such registration
pursuant to this Section 3.1 unless such underwriting shall be conducted on
a "firm commitment" basis; and
(iii) any Holder whose Registrable Securities were to be included in
any such registration, by written notice to the Company, may withdraw such
request and, if upon receipt of such notice of the withdrawal of such request
the Holders that have not elected to withdraw do not hold, in the aggregate, the
requisite percentage of the Registrable Securities to initiate a request under
this Section 3.1, then the Company shall not effect such registration and if the
Holders of such Registrable Securities reimburse the Company for the out-of-
pocket costs of such registration, such registration shall not be deemed
effected for the purpose of clause (i) above.
Each notice to the Company requesting registration to be effected shall set
forth (A) the number of Registrable Securities to be included; (B) the name of
the Holders of such Registrable Securities and the amount to be sold; and (C)
the proposed manner of sale. Within 10 days after receipt of such notice, the
Company shall notify each Holder who is not a party to the written notice served
on the Company (or the transferee(s) of such Holder) and offer to them the
opportunity to include their Registrable Securities in such registration. A
Registration Statement will not be deemed to comply with the terms hereof unless
it is declared effective by the Commission and remains continuously effective
for the Effectiveness Period (other than during any Black-Out Period).
(b) Each Holder agrees, if requested by the managing underwriter or
underwriters in an underwritten offering of securities of the Company, not to
effect any public sale or distribution of Registrable Securities or of
securities of the Company of the same class as any securities included in such
Registration Statement, including a sale pursuant to Rule 144 under the Act
(except as part of such underwritten registration), during the 10-day period
prior to, and during the 180 day period beginning on, the closing date of each
underwritten offering made pursuant to such Registration Statement, to the
extent timely notified in writing by the Company or the managing underwriter or
underwriters and provided that such period is no longer than the hold-back
period agreed to by any other person in connection with such registration.
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Notwithstanding the foregoing, (i) the Company's obligation to file a
Registration Statement pursuant to this Section 3 and (ii) following the date on
which a Registration Statement pursuant to this Section 3 first becomes
effective under the Act, the effectiveness of such Registration Statement may be
suspended by the Company by prior written notice to the Holders for a period not
to exceed 45 days in any 12-month period (each a "Black-Out Period") if (x) an
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event occurs and is continuing as a result of which the Registration Statement
would, in the reasonable good faith judgment of the Company's Board of
Directors, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
and (y)(1) the Company's Board of Directors reasonably determines in good faith
that the disclosure of such event at such time would have a material adverse
effect on the business, operations or prospects of the Company and its
subsidiaries, taken as a whole, or (2) the disclosure otherwise relates to a
previously undisclosed pending material business transaction, the disclosure of
which would, in the reasonable good faith judgment of the Company's Board of
Directors, impede the Company's ability to consummate such transaction.
4. PIGGY-BACK REGISTRATION
(a) Subject to the last sentence of Section 4(a) hereof, whenever the
Company proposes to register any shares of Common Stock (or securities
exercisable or exchangeable for or convertible into, or options to acquire,
Common Stock) with the Commission under the Act and the registration form to be
used may be used for the registration of the Registrable Securities other than
on Forms S-8 or Form S-4 (a "Piggyback Registration"), the Company will give
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written notice to the Holders, at least 30 days prior to the anticipated filing
date, of its intention to effect such a registration, which notice will specify
the proposed offering price, the kind and number of securities proposed to be
registered, the distribution arrangements and such other information that at the
time would be appropriate to include in such notice, and will, subject to
subsection (b) below, include in such Piggyback Registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 20 days after the effectiveness of the Company' notice.
Except as may otherwise be provided in this Agreement, Registrable Securities
with respect to which such request for registration has been received will be
registered by the Company and offered to the public in a Piggyback Registration
pursuant to this Section 4 on the terms and conditions at least as favorable as
those applicable to the registration of shares to be sold by the Company and by
any other person selling under such Piggyback Registration.
(b) The Company shall use all reasonable efforts to cause the managing
underwriter or underwriters of a proposed underwritten offering pursuant to
Section 4 hereof, to permit the Registrable Securities requested to be included
in the registration statement for such offering to be included on the same terms
and conditions as any similar class of securities of the Company or of such
other security holders included therein. Notwithstanding any other provision of
this Agreement, if the underwriter or the managing underwriter, as the case may
be, of such underwritten offering shall inform the Company and the Holders,
that, in its opinion, the amount of securities requested to be included in such
registration exceeds the amount which can be sold in (or during the time of)
such offering without adversely affecting the success of the offering, then the
Company will include in such registration only the amount of Registrable
Securities and other securities that the underwriter or managing underwriter,
as the case may be, has advised can be
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sold in (or during the time of) such offering without such adverse effect;
provided, however, that the Company shall include in such required registration:
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first, all of the securities initially proposed to be sold pursuant to such
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Registration Statement by the Company, second, if applicable, the securities
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proposed by the Company to be sold for the account of a holder of securities who
has made a demand for registration pursuant to a section of a registration
rights agreement between such holder and the Company analogous to Section 4
hereof, and third, the amount of Registrable Securities and other securities
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requested to be included in such registration that the Company is so advised can
be sold in (or during the time of) such offering, allocated pro rata among the
selling Holders and other security holders of the Company on the basis of the
number of Registrable Securities and other securities then held by such other
security holders.
(c) If any Piggyback Registration is an underwritten offering, the
Company will select a managing underwriter or underwriters to administer the
offering, which managing underwriter or underwriters will be of nationally
recognized standing .
(d) Each Holder whose Registrable Securities are covered by a
Registration Statement filed pursuant to Section 4 hereof agrees, if requested
by the managing underwriters in an underwritten offering, not to effect any
public sale or distribution of securities of the Company of the same class as
the securities included in such Registration Statement, including a sale
pursuant to Rule 144 under the Act (except as part of such underwritten
registration), during the 10 day period prior to, and during the 180 day period
beginning on, the closing date of each underwritten offering made pursuant to
such Registration Statement, to the extent timely notified in writing by the
Company or the managing underwriters or underwriters and provided that such
period is no longer than the hold-back period agreed to by any other person in
connection with such Registration.
The foregoing provisions shall not apply to any Holder if such Holder is
prevented by applicable statute or regulation from entering any such agreement;
provided, however, that any such Holder shall undertake, in its request to
participate in any such underwritten offering, not to effect any public sale or
distribution of any Registrable Securities held by such Holder and covered by a
Registration Statement commencing on the date of sale of the Registrable
Securities unless it has provided 45 days prior written notice of such sale or
distribution to the underwriter or underwriters.
5. REGISTRATION PROCEDURES
In connection with the Registration Statement and any related Prospectus
required by this Agreement, the Company shall effect such registration to permit
the offering and sale of the Registrable Securities in accordance with the
intended method or methods of disposition thereof, and pursuant thereto the
Company shall as expeditiously as possible:
(a) Prepare and file with the Commission as soon as practicable each
such Registration Statement and cause such Registration Statement to become
effective and remain effective as provided herein; provided, however, that
before requesting that any such Registration Statement be declared effective or
before filing any post-effective amendments thereto or any supplements to the
Prospectus (including documents that would be incorporated or deemed to be
incorporated therein by reference, including such documents filed under the
Securities Act that would be
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incorporated therein by reference), the Company shall afford promptly to the
Holders of the Registrable Securities covered by such Registration Statement,
their counsel and the managing underwriter or underwriters, if any, an
opportunity to review copies of all such documents proposed to be filed a
reasonable time prior to such time and the Company shall give reasonable
consideration in good faith to any comments of such Holders, counsel and
underwriters.
(b) Prepare and file with the Commission as soon as practicable such
amendments and post-effective amendments to the Registration Statement as may be
necessary to keep such Registration Statement continuously effective for the
time periods prescribed hereby; cause the related Prospectus to be supplemented
by any required prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply in all material respects with the provisions of the
Securities Act, the Exchange Act and the rules and regulations of the Commission
promulgated thereunder applicable to it with respect to the disposition of all
securities covered by such Registration Statement as so amended or in such
prospectus as so supplemented.
(c) Notify the Holders, their counsel and the managing underwriter or
underwriters, if any, promptly, and confirm such notice in writing, (i) when a
Prospectus or any prospectus supplement or post-effective amendment has been
filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective (including in such notice a
written statement that any Holder may, upon request, obtain, without charge, one
conformed copy of such Registration Statement or post-effective amendment
including financial statements and schedules and exhibits), (ii) of the issuance
by the Commission of any stop order suspending the effectiveness of such
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation or threatening of any proceedings for
that purpose, (iii) of the receipt by the Company of any notification with
respect to (A) the suspension of the qualification or exemption from
qualification of the Registration Statement or any of the Registrable Securities
covered thereby for offer or sale in any jurisdiction, or (B) the initiation or
threatening of any proceeding for such purpose, (iv) of the happening of any
event, the existence of any condition or information becoming known to the
Company that requires the making of any changes in such Registration Statement,
Prospectus or documents so that, in the case of such Registration Statement, it
will conform in all material respects with the requirements of the Securities
Act and it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, not misleading, and that in the case of the Prospectus, it
will conform in all material respects with the requirements of the Securities
Act and it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and (v) of the Company's reasonable determination that a post-
effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Registrable Securities covered
thereby for sale in any jurisdiction, and, if any such order is issued, to
obtain the withdrawal of any such order at the earliest practicable moment.
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(e) If requested by the managing underwriter or underwriters, if any,
or the Holders of a majority of the Registrable Securities being sold in
connection with an underwritten offering, (i) promptly incorporate in a
prospectus supplement or post-effective amendment such information as is
reasonably necessary to be included therein to comply with applicable law and
(ii) make all required filings of such prospectus supplement or such post-
effective amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such prospectus supplement or
post-effective amendment.
(f) Furnish to each Holder who so requests and to counsel for the
Holders and each managing underwriter, if any, without charge, upon request, one
conformed copy of the Registration Statement and each post-effective amendment
thereto, including financial statements and schedules, and of all documents
incorporated or deemed to be incorporated therein by reference and all exhibits
(including exhibits incorporated by reference).
(g) Deliver to each Holder, their counsel and each underwriter, if any,
without charge, as many copies of each Prospectus (including each form of
prospectus) and each amendment or supplement thereto as such Holders may
reasonably request but only for so long as the Company is required to keep such
registration statement effective; and, subject to the last paragraph of this
Section 5, the Company hereby consents to the use of such Prospectus and each
amendment or supplement thereto by each of the Holders and the underwriter or
underwriters or agents, if any, in connection with the offering and sale of the
Registrable Securities covered by such Prospectus and any amendment or
supplement thereto.
(h) Prior to any offering of Registrable Securities, cooperate with the
Holders, the underwriter or underwriters, if any, and their respective counsel
in connection with the registration or qualification (or exemption from such
registration or qualification) of, such Registrable Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions within the
United States as may be required to permit the resale thereof by the Holders, or
as the managing underwriter or underwriters reasonably request in writing;
provided, that where Registrable Securities are offered other than through an
underwritten offering, the Company agrees to cause its counsel to perform Blue
Sky investigations and file registrations and qualifications required to be
filed pursuant to this Section 5(h); keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be effective hereunder and do any and all
other acts or things reasonably necessary or advisable to enable the disposition
in such jurisdictions of the securities covered thereby; provided, however, that
the Company will not be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or (C) become subject to taxation in any jurisdiction where
it is not then so subject.
(i) Cooperate with the Holders and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which certificates
shall not bear any restrictive legends whatsoever and shall be in a form
eligible for deposit with The Depository Trust Company ("DTC"); and enable such
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Registrable Securities to be in such denominations and registered in such
names as the managing
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underwriter or underwriters, if any, or Holders may reasonably request at least
two business days prior to any sale of Registrable Securities in a firm
commitment underwritten public offering.
(j) Use its reasonable best efforts to cause the Registrable Securities
covered by a Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be reasonably necessary to
enable the seller or sellers thereof or the underwriter or underwriters, if any,
to consummate the disposition of such Registrable Securities, except as may be
required solely as a consequence of the nature of such selling Holder's
business, in which case the Company will cooperate in all reasonable respects
with the filing of the Registration Statement and the granting of such
approvals.
(k) Upon the occurrence of any event contemplated by Section 5(c)(iv)
or 5(c)(v) above, as promptly as practicable prepare a supplement or post-
effective amendment to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference, and, subject to Section 5(a) hereof, file such with the Commission so
that, as thereafter delivered to the purchasers of Registrable Securities being
sold thereunder, such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading and will otherwise comply with law.
(l) Prior to the effective date of a Registration Statement, (i)
provide the registrar for the Registrable Securities with printed certificates
for such securities in a form eligible for deposit with DTC and (ii) provide a
CUSIP number for such securities.
(m) Enter into an underwriting agreement in form, scope and substance
as is customary in underwritten offerings by the Company and take all such other
actions as are reasonably requested by the managing underwriter or underwriters
in order to expedite or facilitate the registration or disposition of such
Registrable Securities in any underwritten offering to be made of the
Registrable Securities in accordance with this Agreement, and in such
connection, (i) make such representations and warranties to the underwriter or
underwriters, with respect to the business of the Company and the subsidiaries
of the Company, and the Registration Statement, Prospectus and documents, if
any, incorporated or deemed to be incorporated by reference therein, in each
case, in form, substance and scope as are customarily made by the Company to
underwriters in underwritten offerings, and confirm the same if and when
requested; (ii) obtain an opinion of counsel to the Company (which counsel shall
be reasonably satisfactory to the managing underwriter or underwriters),
addressed to the underwriter or underwriters covering the matters customarily
covered in opinions requested in underwritten offerings with respect to
secondary distributions and such other matters as may be reasonably requested by
the underwriters; (iii) use its reasonable best efforts to obtain "cold comfort"
letters and updates thereof (which letters and updates shall be reasonably
satisfactory in form, scope and substance to the managing underwriter or
underwriters) from the independent certified public accountants of the Company
and, to the extent reasonably practicable, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data are, or are
required to be, included in the Registration Statement, addressed to each of the
underwriters, such letters to be in customary
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form and covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification provisions and
procedures no less favorable than those set forth in Section 7 hereof (or such
other provisions and procedures acceptable to Holders of a majority of
Registrable Securities covered by such Registration Statement and the managing
underwriter or underwriters or agents) with respect to all parties to be
indemnified pursuant to said Section. The above shall be done at each closing
under such underwriting agreement, or as and to the extent required thereunder.
(n) Make available for inspection upon reasonable written request by an
authorized representative of the Holders being sold, any underwriter
participating in any such disposition of Registrable Securities, if any, and any
attorney or accountant retained by such representative of the Holders or
underwriter (collectively, the "Inspectors"), at the offices where normally
kept, during reasonable business hours, all pertinent financial and other
records, pertinent corporate documents and properties of the Company and the
subsidiaries of the Company, and cause the officers, directors and employees of
the Company and the subsidiaries of the Company to supply all information in
each case reasonably requested by any such Inspector in connection with such
Registration Statement; provided, however, that any information that is
designated in writing by the Company, in good faith, as confidential at the time
of delivery of such information, shall be kept confidential by such Inspector
and not used by such Inspector for any purpose other than in connection with
such Inspector's review of the Registration Statement for such registration
except to the extent (i) disclosure of such information is required by court or
administrative order, (ii) disclosure of such information, is required by law,
(iii) disclosure of such information is in the written opinion of counsel for
any such Inspector (a copy of which is furnished to the Company), necessary or
advisable in connection with any action, claim, suit or proceeding, directly or
indirectly, involving or potentially involving such Inspector and arising out
of, based upon, relating to or involving this Agreement or any of the
transactions contemplated hereby or arising hereunder or (iv) such information
becomes generally available to the public other than as a result of a disclosure
or failure to safeguard by such Inspector; without limiting the foregoing, no
such information shall be used by such Inspector as the basis for any market
transactions in securities of the Company or the subsidiaries of the Company in
violation of applicable law. Each selling Holder of such Registrable Securities
agrees that information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company or of any of its Affiliates unless
and until such is made generally available to the public. Each selling Holder of
such Registrable Securities further agrees that it will, upon learning that
disclosure of such information is sought in a court of competent jurisdiction,
give prompt notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure of the
information deemed confidential.
(o) Comply in all material respects with all applicable rules and
regulations of the Commission and make generally available to its security
holders earnings statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 50 days after the end of any 12-month period
(or 100 days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to an underwriter or to
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underwriters in a firm commitment or best efforts underwritten offering and (ii)
if not sold to an underwriter or to underwriters in such an offering, commencing
on the first day of the first fiscal quarter of the Company after the effective
date of the relevant Registration Statement, which statements shall cover said
12-month periods.
(p) Use its reasonable best efforts to cause all Registrable Securities
relating to such Registration Statement to be listed on each securities
exchange, if any, on which similar securities issued by the Company are then
listed.
Each seller of Registrable Securities as to which any registration is
being effected agrees, as a condition to the registration obligations with
respect to such Holder provided herein, to furnish promptly to the Company such
information regarding such seller and the distribution of such Registrable
Securities as the Company may, from time to time, reasonably request in writing
to comply with the Securities Act and other applicable law. The Company may
exclude from such registration the Registrable Securities of any seller who
unreasonably fails to furnish such information within a reasonable time after
receiving such request. If the identity of a seller of Registrable Securities is
to be disclosed in the Registration Statement, such seller shall be permitted to
include all information regarding such seller as it shall reasonably request.
(q) Each Holder agrees by acquisition of such Registrable Securities
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 5(c)(ii), 5(c)(iv) or 5(c)(v), such Holder will
forthwith discontinue disposition of such Registrable Securities covered by the
Registration Statement or Prospectus until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 5(k), or until
it is advised in writing (the "Advice") by the Company that the use of the
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applicable prospectus may be resumed, and has received copies of any amendments
or supplements thereto, and, if so directed by the Company, such Holder will (A)
either (i) deliver to the Company, or (ii) destroy, all copies, other than
permanent file copies, then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice, and (B) not use the facts of such Advice as the basis for any market
transactions in securities of the Company or any of its Affiliates, unless and
until such information is made generally available to the public. In the event
the Company shall give any such notice, the period of time for which a
Registration Statement is required hereunder to be effective shall be extended
by the number of days during such periods from and including the date of the
giving of such notice to and including the date when each seller of Registrable
Securities covered by such Registration Statement shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 5(k) or
(y) the Advice.
6. REGISTRATION EXPENSES
All expenses incident to the Company's performance of or compliance with
this Agreement will be borne by the Company, regardless of whether a
Registration Statement becomes effective, including, without limitation: (i) all
registration and filing fees and expenses; (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing Prospectuses (whether for sales,
market-making or otherwise)), messenger and delivery services and telephone;
(iv) all fees and
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disbursements of counsel for the Company; (v) all application and filing fees in
connection with listing the Warrant Shares on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent certified public accountants of the
Company (including the expenses of any special audit and comfort letters
required by or incident to such performance). Holders shall bear all costs of
any such Registration Statement and offering with respect to any legal counsel,
accountant, financial advisor or other person retained by the Holders in
connection therewith, as well as any underwriter's discounts or commissions in
connection with an underwritten offering.
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
7. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each Holder, its
directors, officers and each Person, if any, who controls such Holder (within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act), from
and against any and all losses, claims, damages, liabilities, judgments
(including, without limitation, any legal or other expenses incurred in
connection with investigating or defending any matter, including any action that
could give rise to any such losses, claims, damages, liabilities or judgments)
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, preliminary prospectus or Prospectus
(or any amendment or supplement thereto) provided by the Company to any Holder
or any prospective purchaser of Registrable Securities, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or judgments are
caused by an untrue statement or omission or alleged untrue statement or
omission that is based upon information relating to a Holder furnished in
writing to the Company by such Holder.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors and officers, and each person, if any,
who controls (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) the Company, to the same extent as the foregoing indemnity from
the Company set forth in Section 7(a) hereof, but only with reference to
information relating to such Holder furnished in writing to the Company by such
Holder expressly for use in any Registration Statement. In no event shall any
Holder, its directors, officers or any Person who controls such Holder be liable
or responsible for any amount in excess of the amount by which the total amount
received by such Holder with respect to its sale of Registrable Securities
pursuant to a Registration Statement exceeds the amount paid by such Holder for
such Registrable Securities.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7(a) or Section
7(b) (the "indemnified party"), the indemnified party shall promptly notify the
-----------------
person against whom such indemnity may be sought (the "indemnifying party") in
------------------
writing, and the indemnifying party shall assume the defense of
11
such action, including the employment of counsel reasonably satisfactory to the
indemnified party and the payment of all fees and expenses of such counsel, as
incurred (except that, in the case of any action in respect of which indemnity
may be sought pursuant to both Sections 8(a) and Section 7(b), a Holder shall
not be required to assume the defense of such action pursuant to this Section
7(c), but may employ separate counsel and participate in the defense thereof,
but the fees and expenses of such counsel, except as provided below, shall be at
the expense of the Holder). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party, unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
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 fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by the Holders of a majority of the Registrable Securities, in the
case of the parties indemnified pursuant to Section 7(a), and by the Company, in
the case of parties indemnified pursuant to Section 7(b). The indemnifying party
shall indemnify and hold harmless the indemnified party from and against any and
all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action effected with its written consent. Notwithstanding the
foregoing, any such settlement may be effected by the indemnified party without
the indemnifying party's written consent if the settlement is entered into more
than 20 Business Days after the indemnifying party shall have received a request
from the indemnified party for reimbursement for the fees and expenses of
counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. The
indemnifying party shall not, without the prior written consent of the
indemnified party, effect any settlement or compromise of, or consent to the
entry of judgment with respect to, any pending or threatened action in respect
of which the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this Section
7 is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
12
claims, damages, liabilities or judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Holders, on the other hand, from their sale of Registrable
Securities or (ii) if the allocation provided by clause 8(d)(i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 8(d)(i) hereof but also the relative
fault of the Company, on the one hand, and of the Holder, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company, on the one hand,
and of the Holder, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, on the one hand, or by the Holder, on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to above shall be deemed to include,
subject to the limitations set forth in the second paragraph of Section 7(a),
any legal or other fees or expenses reasonably incurred by such indemnified
party in connection with investigating or defending any matter, including any
action that could have given rise to such losses, claims, damages, liabilities
or judgments.
The Company and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7, no Holder, its directors, its
officers or any Person, if any, who controls such Holder shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the
total received by such Holder with respect to the sale of Registrable Securities
pursuant to a Registration Statement exceeds the amount paid by such Holder for
such Registrable Securities. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 7(d) are several in proportion to the respective principal amount of
Registrable Securities held by each Holder hereunder and not joint.
(e) The Company agrees that the indemnity and contribution provisions
of this Section 7 shall apply to the Initial Holders to the same extent, on
the same conditions, as it applies to Holders.
8. RULE 144 AND RULE 144A
The Company agrees with each Holder, for so long as any Registrable
Securities remain outstanding and during any period in which the Company is (i)
not subject to Section 13 or 15(d) of the Exchange Act, to make available, upon
request of any Holder, to such Holder or beneficial owner of Registrable
Securities in connection with any sale thereof and any prospective purchaser of
such Registrable Securities designated to such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Act in order to permit resales
of such Registrable Securities pursuant to Rule 144A, and (ii) subject to
Section 13 or 15(d) of the Exchange Act, to
13
make all filings required thereby in a timely manner in order to permit resales
of such Registrable Securities pursuant to Rule 144.
9. MISCELLANEOUS
(a) Remedies. The Company acknowledges and agrees that any failure by
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the Company to comply with its obligations under Section 3 and Section 4 hereof
may result in material irreparable injury to the Initial Holders or the Holders
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Holders or any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations under Section 3 and
Section 4 hereof. The Company further agrees to waive the defense in any action
for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after the
--------------------------
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not
----------------------
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of this
Section 9(c)(i), the Company has obtained the written consent of Holders of all
outstanding Registrable Securities, and (ii) in the case of all other provisions
hereof, the Company has obtained the written consent of Holders of a majority of
the outstanding principal amount of Registrable Securities (excluding
Registrable Securities held by the Company or its Affiliates); provided,
however, that this Agreement may be amended without the consent of any Holder
pursuant to Section 16 of the Warrant Agreement.
(d) Third Party Beneficiary. The Holders shall be third party
-----------------------
beneficiaries to the agreements granting rights to Holders made hereunder
between the Company, on the one hand, and the Initial Holders, on the other
hand, and shall have the right to enforce such agreements directly to the extent
they may deem such enforcement necessary or advisable to protect its rights or
the rights of Holders hereunder.
(e) Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Warrant Agent, with a copy to the Warrant Agent, and
With a copy to:
Credit Suisse First Boston Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, Esq.
(ii) if to the Company:
French Fragrances, Inc.
▇▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Oscar Marina, Esq.
With a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Warrant Agent at the
address specified in Warrant Agreement.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors and assigns of each of the parties,
including, without limitation, and without the need for an express assignment,
subsequent Holders; provided that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Registrable Securities in violation
of the terms hereof or of the Purchase Agreement or the Warrant Agreement. If
any transferee of any Holder shall acquire Registrable Securities in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement, including the restrictions on resale set forth in this Agreement and,
if
15
applicable, the Purchase Agreement, and such Person shall be entitled to receive
the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one an d the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICTS OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
16
In WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FRENCH FRAGRANCES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. Marina
Title: Senior Vice President, General
Counsel and Secretary
CREDIT SUISSE FIRST BOSTON CAYMAN ISLANDS BRANCH
By: /s/ [ILLEGIBLE]
--------------------------------------
Name: [ILLEGIBLE]
Title:
By: [ILLEGIBLE]
--------------------------------------
Name:
Title:
FLEET CORPORATE FINANCE INC.
By:
--------------------------------------
Name:
Title:
In WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FRENCH FRAGRANCES, INC.
By:
---------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON CAYMAN ISLANDS BRANCH
By:
--------------------------------------
Name:
Title:
FLEET CORPORATE FINANCE INC.
By: /s/ [Illegible}
--------------------------------------
Name:
Title: