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EXHIBIT 10.127
SECURITIES PURCHASE AGREEMENT
between
RENAISSANCE COSMETICS, INC.
and
BASTION CAPITAL FUND, L.P.
---------------------------------
Dated as of September 27, 1996
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS................................................................................... 1
Section 1.1. Definitions................................................................... 1
Section 1.2. Accounting Terms; Financial Statements........................................ 5
ARTICLE II ISSUE OF SECURITIES; PURCHASE AND SALE OF
SECURITIES; RIGHTS OF HOLDERS OF SECURITIES............................................ 5
Section 2.1. Issue of Securities........................................................... 5
Section 2.2. Purchase and Sale of Securities............................................... 6
ARTICLE III REPRESENTATIONS AND WARRANTIES.............................................................. 6
Section 3.1. Representations and Warranties of the Company................................. 6
Section 3.2. Representations and Warranties of the Purchaser............................... 14
ARTICLE IV CONDITIONS PRECEDENT TO CLOSING............................................................. 16
Section 4.1. Conditions Precedent to Obligations of the Purchaser......................... 16
Section 4.2. Conditions Precedent to Obligations of the Company........................... 18
ARTICLE V COVENANTS.................................................................................... 19
Section 5.1. Use of Proceeds.............................................................. 19
Section 5.2. Adjustments.................................................................. 19
Section 5.3. Stockholders Agreement....................................................... 20
Section 5.4. Board Representation......................................................... 20
ARTICLE VI INDEMNITY................................................................................... 21
Section 6.1. Indemnity.................................................................... 21
Section 6.2. Contribution................................................................. 23
Section 6.3. Common Stock Registration Rights Agreements.................................. 24
ARTICLE VII MISCELLANEOUS.............................................................................. 24
Section 7.1. Survival of Provisions....................................................... 24
Section 7.2. Termination.................................................................. 24
Section 7.3. No Waiver; Modifications in Writing.......................................... 25
Section 7.4. Communications............................................................... 25
Section 7.5. Taxes........................................................................ 26
Section 7.6. Determinations............................................................... 26
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TABLE OF CONTENTS
PAGE
Section 7.7. Execution in Counterparts.................................................... 26
Section 7.8. Binding Effect; Assignment................................................... 26
Section 7.9. GOVERNING LAW................................................................ 26
Section 7.10. Severability of Provisions................................................... 26
Section 7.11. Headings..................................................................... 27
Signature Page ......................................................................................... 27
Exhibit 1 Form of Common Stock Registration Rights Agreement
Exhibit 2 Form of Opinion of Company Counsel
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SECURITIES PURCHASE AGREEMENT, dated as of September __, 1996
(this "Agreement"), between Renaissance Cosmetics, Inc., a Delaware corporation
(the "Company"), and Bastion Capital Fund, L.P., a Delaware limited partnership
(the "Purchaser").
In consideration of the mutual covenants and agreements set
forth herein and for good and valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, and
unless the context requires a different meaning, the following terms have the
meanings indicated:
"Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder.
"Affiliate" of any specified Person means any other Person
which directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling", "controlled by" and "under common control with"), as
used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by agreement or
otherwise.
"Agreement" means this Agreement, as the same may be amended,
supplemented or modified in accordance with the terms hereof and in effect.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in the City of New
York are authorized or obligated by law to close.
"Closing" has the meaning provided therefor in Section 2.2 of
this Agreement.
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"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission or
any similar agency then having jurisdiction to enforce the Act.
"Common Stock" means the Common Stock of the Company, par
value $0.01 per share.
"Common Stock Registration Rights Agreement" means the Common
Stock Registration Rights Agreement substantially in the form of Exhibit 1
hereto.
"Company" has the meaning provided therefor in the
introductory paragraph of this Agreement.
"Default" means any event, act or condition which, with notice
or lapse of time or both, would constitute an Event of Default.
"ERISA" has the meaning provided therefor in Section 3.1 of
this Agreement.
"Event of Default" means any event defined as an Event of
Default in the Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
"Indemnified Parties" has the meaning provided therefor in
Section 6.1(b) of this Agreement.
"Indemnifying Parties" has the meaning provided therefor in
Section 6.1(b) of this Agreement.
"Indenture" means the indenture under which the Notes were
issued.
"Lien" means, with respect to any property or assets of any
Person, any mortgage or deed of trust, pledge, hypothecation, assignment,
deposit arrangement, security interest, lien, charge, easement, encumbrance,
preference, priority or other security
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agreement or preferential arrangement of any kind or nature whatsoever on or
with respect to such property or assets (including without limitation, any
Capitalized Lease Obligation (as defined in the Indenture), conditional sales,
or other title retention agreement having substantially the same economic effect
as any of the foregoing).
"Material Adverse Effect" means, with respect to the Company
and its Subsidiaries, a material adverse effect on the business, condition
(financial or otherwise) or results of operations of the Company and its
Subsidiaries, taken as a whole; provided that, with respect to the Company and
the Material Subsidiaries, "Material Adverse Effect" shall also mean a material
adverse effect on the ability of the Company or the Material Subsidiaries to
perform their respective obligations under this Agreement and the Common Stock
Registration Rights Agreement.
"Material Subsidiaries" means Cosmar Corporation, a Delaware
corporation, and ▇▇▇▇ Perfumes Corp., a Delaware corporation.
"Memorandum" has the meaning provided therefor in Section 2.1
of this Agreement.
"Nomura Facility" means the Note Purchase Agreement, dated as
of December 21, 1994, as amended, among the Company, Cosmar Corporation and
Nomura Holding America Inc., as purchaser, relating to the $40,000,000 variable
rate Senior Secured Revolving Notes due 1996 and the $30,000,000 variable rate
Senior Secured Term Notes due 1996, as such agreement may be amended, modified
or supplemented from time to time.
"Notes" means the 13 3/4% Senior Notes Due 2001, Series B and
the 13 3/4 Senior Notes due 2002 of the Company issued under the Indenture.
"Old Warrant Agreement" means the Warrant Agreement dated as
of August 18, 1994, between the Company and American Bank National Association,
as Warrant Agent.
"Pending Acquisitions" means the acquisition (or attempted
acquisition) by the Company, directly and indirectly, of (i) The MEM Company,
and (ii) any other business or part of a business that is in the line of
business conducted by the Company on the date hereof and any related line of
business.
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"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
other legal entity.
"Preemptive Right Opinion" shall mean a letter from ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ that indicates a "Current Market Price" (as defined in the
Old Warrant Agreement) of no greater than $96.23 per share of Common Stock.
"Proceeding" has the meaning provided therefor in Section
6.1(b) of this Agreement.
"Purchaser" has the meaning provided therefor in the
introductory paragraph of this Agreement.
"Securities" has the meaning provided therefor in Section 2.1
of this Agreement.
"State" means each of the states of the United States, the
District of Columbia and the Commonwealth of Puerto Rico.
"State Commission" means any agency of any State having
jurisdiction to enforce such State's securities laws.
"Stockholders Agreement" means the Stockholders Agreement
dated August 18, 1994 between the Company and each of the individuals or
entities which are parties thereto.
"Subsidiaries" means of any specified Person, any corporation,
partnership, joint venture, association or other business entity, whether now
existing or hereafter organized or acquired, (i) in the case of a corporation,
of which more than 50% of the total voting power of the capital stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, officers or trustees thereof is held by such first-named Person or
any of its Subsidiaries; or (ii) in the case of a partnership, joint venture,
association or other business entity, with respect to which such first-named
Person or any of its Subsidiaries has the power to direct or cause the direction
of the management and policies of such entity by contract or otherwise or if in
accordance with generally
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accepted accounting principles such entity is consolidated with the first-named
Person for financial statement purposes.
"Taxes" has the meaning provided therefor in Section 3.1(q) of
this Agreement.
"Time of Purchase" has the meaning provided therefor in
Section 2.2 of this Agreement.
Section 1.2. Accounting Terms; Financial Statements. All
accounting terms used herein not expressly defined in this Agreement shall have
the respective meanings given to them in accordance with sound accounting
practice. The term "sound accounting practice" shall mean such accounting
practice as, in the opinion of the independent accountants regularly retained by
the Company, conforms at the time to generally accepted accounting principles in
the United States applied on a consistent basis except for changes with which
such accountants concur. All determinations to which accounting principles apply
shall be made in accordance with sound accounting practice.
ARTICLE II
ISSUE OF SECURITIES; PURCHASE AND SALE OF
SECURITIES; RIGHTS OF HOLDERS OF SECURITIES
Section 2.1. Issue of Securities. The Company has authorized
the issuance and sale to the Purchaser of 51,959 shares (the "Securities") of
Common Stock. The Securities will be offered and sold to the Purchaser without
being registered under the Act, in reliance on exemptions therefrom.
In connection with the sale of the Securities, the Company has
provided the Purchaser with an Offering Memorandum dated August 7, 1996, as
supplemented by the Supplement to Offering Memorandum dated August 13, 1996, the
Second Supplement to Offering Memorandum dated August 27, 1996, the Third
Supplement to Offering Memorandum, dated September 11, 1996, and the Fourth
Supplement to Offering Memorandum dated September 25, 1996 (such Offering
Memorandum, as so supplemented, together with any documents incorporated by
reference therein, being hereinafter referred to as the "Memorandum").
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Section 2.2. Purchase and Sale of Securities. Subject to the
terms and conditions herein set forth, the Company agrees that it will sell to
the Purchaser, and the Purchaser agrees that it will purchase from the Company,
at the Time of Purchase the Securities and the Company shall issue and deliver
or cause to be delivered to the Purchaser stock certificates representing the
Securities, and the Purchaser shall deliver by wire transfer of immediately
available funds $5,000,000 to the Company.
The purchase and sale of the Securities shall take place at a
closing (the "Closing") at the offices of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on September
27, 1996 immediately following the sale by the Company to CIBC Wood Gundy
Securities Corp. of 10,000 Units (as defined in the Memorandum) consisting of
$10,000,000 aggregate liquidation preference of 14% Senior Redeemable Preferred
Stock, Series B (the "Preferred Stock") and Warrants to purchase shares of
Common Stock (the "Unit Sale"). The time at which the Closing is concluded is
herein called the "Time of Purchase."
The Company will bear all expenses of shipping the Securities
(including, without limitation, insurance expenses) from New York City to such
other places within the United States of America or Canada as the Purchaser
shall specify. Any tax on the issuance of the Securities will be paid by the
Company at the Time of Purchase pursuant to Section 7.5.
Section 2.3. Rights of Holders of Securities. The holders of
the Securities shall have such rights with respect to the registration thereof
under the Act as are set forth in the Common Stock Registration Rights
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of the Company.
The Company represents and warrants to the Purchaser as follows:
(a) The Memorandum as supplemented and provided to the
Purchaser at the Time of Purchase will not contain any untrue statement
of a material fact or omit
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to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(b) The audited consolidated financial statements of the
Company and its Subsidiaries, together with related notes and schedules
thereto, included in the Memorandum fairly present in all material
respects the financial condition of the Company and its Subsidiaries as
of the dates indicated and the results of operations and cash flows for
the periods therein specified in conformity with generally accepted
accounting principles consistently applied throughout the periods
involved (except as otherwise stated therein); and any pro forma
financial statements and the related notes thereto included in the
Memorandum have been prepared using reasonable assumptions and in
accordance with the applicable requirements of the Act and include all
adjustments necessary to present fairly in all material respects the
pro forma financial information included in the Memorandum as at the
respective dates and for the respective periods indicated. Deloitte &
Touche LLP and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, which are reporting upon the
audited financial statements and schedules included in the Memorandum,
are independent public accounting firms as required by the Act and the
rules and regulations thereunder.
(c) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
Each of the Company's Subsidiaries is a corporation duly incorporated
or organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation. Each of the Company and its
Subsidiaries is duly qualified and in good standing as a foreign
corporation, and is authorized to do business, in each jurisdiction in
which the ownership or leasing of any property or the nature of its
business makes such qualification necessary and in which the failure so
to qualify would have a Material Adverse Effect.
(d) All of the issued and outstanding shares of capital stock
of the Company and its Subsidiaries are validly issued, fully paid and
nonassessable and were not issued in violation of any preemptive or
similar rights (subject to preemptive rights as described in the
Memorandum). As of the date hereof, the Company has no material
Subsidiaries other than the Material Subsidiaries and those
Subsidiaries listed on Schedule 3.1(d) hereto. All of the capital stock
of the Material Subsidiaries is owned directly or indirectly by the
Company, free and clear of any Liens other than
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Liens created under the Indenture or securing the Nomura Facility.
Except as described in the Memorandum, there are no outstanding
subscriptions, options, warrants, rights, convertible securities or
other binding agreements or commitments of any character obligating the
Company or its Subsidiaries to issue any securities. Except as
described in the Memorandum, no Person other than the Purchaser, CIBC
Wood Gundy Securities Corp. ("CIBC"), and purchasers of the Units from
CIBC and CIBC WG Argosy Fund 2 L.L.C. ("CIBC Fund"), has any rights to
the registration of capital stock or other securities of the Company,
under the Act or otherwise. Except for the Stockholders Agreement, the
Common Stock Subscription Agreement dated August 15, 1996, between the
Company and the CIBC Fund, the Company's Restated Certificate of
Incorporation or as disclosed in the Memorandum, there is no agreement,
understanding or arrangement among the Company or its Subsidiaries and
its or their respective stockholders or any other person relating to
the ownership or disposition of any capital stock in the Company or any
of its Subsidiaries, the election of directors of the Company or any of
its Subsidiaries or the governance of the Company's or any such
Subsidiary's affairs; and no such agreements, arrangements or
understandings will be breached or violated as a result of the
execution and delivery of, or the consummation of the transactions
contemplated by, this Agreement or the Common Stock Registration Rights
Agreement.
(e) The Securities have been duly and validly authorized and,
upon payment by the Purchaser in accordance with this Agreement, will
be fully paid and non-assessable and free of preemptive rights. The
Securities will not be subject to any restrictions on the transfer
thereof except for such restrictions set forth herein, in the
Stockholders Agreement and under the Act.
(f) This Agreement has been duly authorized by the Company
and, when executed and delivered by the Company (assuming the due
authorization, execution and delivery by the Purchaser), will
constitute a valid and legally binding agreement of the Company,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws now or hereafter
in effect relating to creditors' rights and remedies generally, (ii)
general equitable principles, whether asserted in an action at law or
in equity, and that such enforceability may be subject to the
discretion of the court before which any proceedings therefor may be
brought
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and (iii) rights to indemnity or contribution may be limited by federal
or state securities laws or the public policy underlying such laws.
(g) The Common Stock Registration Rights Agreement has been
duly authorized by the Company and, when executed and delivered by the
Company (assuming the due authorization, execution and delivery by the
Purchaser), will constitute a valid and legally binding agreement of
the Company, enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by (i) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws now or hereafter in effect relating to creditors' rights
and remedies generally and (ii) general equitable principles, whether
asserted in an action at law or in equity, and that such enforceability
may be subject to the discretion of the court before which any
proceedings therefor may be brought.
(h) The Company has all requisite corporate power and
authority to (i) execute, deliver and perform its obligations under
this Agreement and the Common Stock Registration Rights Agreement, (ii)
execute, deliver and perform its obligations under all other agreements
and instruments required to be executed and delivered by the Company
pursuant to this Agreement and the Common Stock Registration Rights
Agreement and (iii) issue the Securities in the manner and for the
purpose contemplated by this Agreement. The execution and delivery by
the Company of this Agreement, the Common Stock Registration Rights
Agreement and the consummation of the transactions contemplated hereby
and thereby have been duly and validly authorized by the Company.
(i) Subsequent to the date as of which information is given in
the Memorandum and immediately prior to the Time of Purchase there has
not been (i) any event or condition that has had or that would
reasonably be expected to have a Material Adverse Effect on the Company
and its Subsidiaries, taken as a whole, (ii) any transaction entered
into by the Company or any Subsidiary, other than in the ordinary
course of business, that is material to the Company and its
Subsidiaries, taken as a whole, or (iii) any dividend or distribution
of any kind declared, paid or made by the Company on its Common Stock
that has not been approved by the Purchaser in writing.
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(j) There is no action, suit, investigation or proceeding,
governmental or otherwise, pending or, to the best knowledge of the
Company, threatened to which the Company or any of its Subsidiaries is
or would be a party or of which the properties of the Company or its
Subsidiaries are or may be subject, that (i) seeks to restrain, enjoin,
prevent the consummation of or otherwise challenge the issuance and
sale of the Securities by the Company or any of the other transactions
contemplated hereby, (ii) questions the legality or validity of any
such transactions or seeks to recover damages or obtain other relief in
connection with any such transactions or (iii) except as disclosed in
the Memorandum, could reasonably be expected to have a Material Adverse
Effect.
(k) The execution, delivery and performance by the Company of
this Agreement and the Common Stock Registration Rights Agreement, and
the issuance and sale by the Company of the Securities, and the
execution, delivery and performance by the Company of all other
agreements and instruments required to be executed and delivered by the
Company pursuant hereto or thereto and compliance by the Company with
the terms and provisions hereof and thereof, do not and will not (i)
violate any provision of any law, rule or regulation (including,
without limitation, Regulation G, T, U or X of the Board of Governors
of the Federal Reserve System), order, writ, judgment, decree,
determination or award presently in effect or in effect at the Time of
Purchase having applicability to the Company or any of its
Subsidiaries, (ii) conflict with or result in a breach of or constitute
a default under the certificate of incorporation or by-laws of the
Company or any of the Subsidiaries, or, as of the Time of Purchase any
indenture or loan or credit agreement, or any other agreement or
instrument, to which the Company or any of its Subsidiaries is a party
or by which the Company or any of the Subsidiaries or any of their
respective properties may be bound or affected, or (iii) except as
contemplated by this Agreement and the Common Stock Registration Rights
Agreement, result in, or require the creation or imposition of, any
Lien upon or with respect to any of the properties now owned or
hereafter acquired by the Company or any of the Subsidiaries, except,
in the case of (i), (ii) or (iii), where such violation, conflict,
default or creation or imposition of any Lien would not (individually
or in the aggregate) have a Material Adverse Effect.
(l) Immediately after giving effect to the consummation of the
transactions contemplated by this Agreement, neither the Company nor
any of its Subsidiaries (i)
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will be in violation of its respective certificate of incorporation
or by-laws, (ii) will be in default (nor will an event occur which
with notice or passage of time or both would constitute such a
default) under or in violation of any indenture or loan or credit
agreement or any other material agreement or instrument to which it
is a party or by which it or any of its properties may be bound or
affected, (iii) will be in violation of any order of any court,
arbitrator or governmental body or subject to or party to any order
of any court or governmental authority arising out of any action,
suit or proceeding under any statute or other law respecting
antitrust, monopoly, restraint of trade, unfair competition or
similar matters or (iv) will have violated or be in violation of any
such statute, rule or regulation of any governmental authority, which
default or violation in the case of clause (i), (ii), (iii) or (iv)
(individually or in the aggregate) could reasonably be expected to (x)
affect the legality, validity or enforceability of this Agreement or
the Common Stock Registration Rights Agreement or (y) have a Material
Adverse Effect.
(m) Assuming the accuracy of the Purchaser's representations
and warranties set forth in Section 3.2 and the due performance by the
Purchaser of the covenants and agreements set forth in Section 3.2, no
authorization, consent, approval, license, qualification or formal
exemption from, nor any filing, declaration or registration with, any
court, governmental agency or regulatory authority or any securities
exchange is required in connection with the execution, delivery or
performance by the Company or any of its Subsidiaries (to the extent
they are a party thereto) of this Agreement or the Common Stock
Registration Rights Agreement, except (i) as may be required under
state securities or "blue sky" laws or the laws of any foreign
jurisdiction in connection with the offer and sale of the Securities or
(ii) as would not (individually or in the aggregate) have a Material
Adverse Effect. All such authorizations, consents, approvals, licenses,
qualifications, exemptions, filings, declarations and registrations
which are required to have been obtained or made as of the Time of
Purchase have been obtained or made and are in full force and effect
and not the subject of any pending or, to the knowledge of the Company,
threatened attack by appeal or direct proceeding or otherwise.
(n) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and the Company will not be
immediately after
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the Time of Purchase an "investment company" within the meaning of
such Investment Company Act.
(o) The execution and delivery of this Agreement and the
Common Stock Registration Rights Agreement will not involve any
non-exempt prohibited transaction within the meaning of Section 406 of
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or Section 4975 of the Code on the part of the Company or
any of its Subsidiaries. The preceding representation is made in
reliance upon, and subject to the continuing accuracy of, the
representation made in Section 3.2(b) as to the Purchaser. The Company
does not and, at and as of the Time of Purchase, the Company does not
reasonably expect to have any liability for any prohibited transaction
or funding deficiency or any complete or partial withdrawal liability
with respect to any pension, profit sharing or other plan which is
subject to ERISA and which is required to be funded, to which the
Company makes or ever has made a contribution and in which any employee
of the Company is or has ever been a participant. With respect to such
plans, the Company is and, at and as of the Time of Purchase, the
Company will be in compliance in all material respects with all
applicable provisions of ERISA.
(p) The Company and each of its Subsidiaries have good and
valid title to, or valid and enforceable leasehold interests in, all
properties and assets identified in the Memorandum as owned by each of
them which are material to the business of the Company and its
Subsidiaries, taken as a whole, free and clear of all Liens, except (i)
such Liens as are described in the Memorandum or (ii) Liens created in
the ordinary course of business which are Permitted Liens (as defined
in the Indenture). All of the leases material to the business of the
Company and the Subsidiaries, taken as a whole, and under which the
Company or any Subsidiary holds properties described in the Memorandum,
are valid and binding as leased by them, with such exceptions as are
not material and do not materially interfere with the use made and
proposed to be made of such properties by the Company and its
Subsidiaries.
(q) All tax returns required to be filed by the Company or any
of its Subsidiaries in any jurisdiction (including foreign
jurisdictions) have been so filed and all taxes, assessments, fees and
other charges including, without limitation, withholding taxes,
penalties, and interest ("Taxes") due or claimed to be due have been
paid, other than those Taxes being contested in good faith and those
Taxes for
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which adequate reserves or accruals have been established in
accordance with generally accepted accounting principles, except where
the failure to file such returns or to pay such Taxes is not reasonably
likely to have, singly or in the aggregate, a Material Adverse Effect.
Except as disclosed in writing to the Purchaser, the Company knows of
no actual or proposed additional tax assessments for any fiscal period
against the Company or any of its Subsidiaries that, individually or in
the aggregate, would have a Material Adverse Effect.
(r) The Company and its Subsidiaries are the owners or
licensees of all trade names, unregistered trademarks and service
marks, brand names, patents, registered and unregistered copyrights,
registered trademarks and service marks, and all applications for any
of the foregoing, and all permits, grants and licenses or other rights
with respect thereto, the absence of which would have a Material
Adverse Effect. Neither the Company nor any of its Subsidiaries has
been charged with any material infringement of any intangible property
of the character described above or been notified or advised of any
material claim of any other Person relating to any of the intangible
property which infringements or claims (individually or in the
aggregate) could reasonably be expected to have a Material Adverse
Effect.
(s) Except as set forth in the Memorandum, the Company and its
Subsidiaries comply in all material respects with all laws, rules and
regulations applicable to the Company and each such Subsidiary, and the
Company and its Subsidiaries own or possess and are operating in
compliance in all material respects with the terms, provisions,
conditions, restrictions and limitations contained in all licenses,
franchises, approvals, certificates and permits from all Federal,
state, territorial, foreign and local governmental and regulatory
authorities which are necessary to own or lease their respective
properties and assets and to the conduct of their respective businesses
(other than such laws, rules, regulations, licenses, franchises,
approvals, certificates or permits that are immaterial in scope or
application to the Company and its Subsidiaries, taken as a whole),
including, without limitation, licenses, franchises and approvals from
the United States Food and Drug Administration and the United States
Federal Trade Commission, except where the failure to comply with any
of the foregoing would not have a Material Adverse Effect. Except as
otherwise set forth in the Exchange Act Filings, there are no citations
or notices of forfeiture or other proceedings pending or, to the best
knowledge of the Company, threatened or any basis therefor, which would
lead to the
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revocation, termination, suspension or non-renewal of any such
license, franchise, approval, certificate or permit the result of
which could reasonably be expected to have a Material Adverse Effect.
Except as otherwise set forth in the Memorandum, there are
no restrictions or limitations contained in any applicable license,
franchise, approval, certificate or permit, or, to the best knowledge
of the Company, threatened or proposed in any pending or contemplated
hearing, proceeding or procedure, that could reasonably be expected to
have a Material Adverse Effect.
(t) Neither the Company nor any of its affiliates (as defined
in Rule 501(b) of Regulation D under the Act) has directly, or through
any agent, (i) sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any security (as defined in the
Act) which is or will be integrated with the sale of the Securities in
a manner that would require the registration under the Act of the
Securities or (ii) engaged in any form of general solicitation or
general advertising in connection with the offering of the Securities
(as those terms are used in Regulation D under the Act) or in any
manner involving a public offering within the meaning of Section 4(2)
of the Act.
(u) Assuming the accuracy of the Purchaser's representations
and warranties set forth in Section 3.2 hereof and the due performance
by the Purchaser of the covenants and agreements set forth in Section
3.2 hereof, the sale of the Securities to the Purchaser in the manner
contemplated by this Agreement does not require registration under the
Act.
(v) The Company and its Subsidiaries have complied with all
provisions of Florida H.B. 1771, codified as Section 517.075 of the
Florida Statutes and all regulations promulgated thereunder relating to
issuers doing business with the Government of Cuba or with any person
or any affiliate located in Cuba.
The Purchaser acknowledges that the Company is not making any
representation or warranty to the Purchaser in connection with the sale of the
Securities and the transactions contemplated hereby except as specifically set
forth in this Section 3.1.
Section 3.2. Representations and Warranties of the Purchaser.
(a) The Purchaser is acquiring the Securities for its own account and not with a
view toward the resale or distribution thereof in violation of the Act or any
other applicable law. The
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Purchaser understands that it must bear the economic risk of its investment
for an indefinite period of time because the Securities are not registered
under the Securities Act, or any applicable state securities laws, and may not
be resold unless subsequently registered under the Act and such other laws or
unless an exemption from such registration requirements is available. The
Purchaser hereby agrees that it will not pledge, transfer, convey or otherwise
dispose of any of the Securities, except in a transaction that is in
compliance with applicable securities laws. The Purchaser has had opportunities
to ask questions of, and receive answers from, officers and other
representatives of the Company with respect to the business and financial
condition of the Company, to obtain such additional information concerning the
Company as the Purchaser has deemed relevant in connection with its investment
decision and such information as the Purchaser has deemed necessary to verify
such information. The Purchaser is an "accredited investor" within the meaning
of Rule 501 of Regulation D promulgated under the Act. The Purchaser
acknowledges that each certificate representing the Securities delivered at the
Closing shall, if appropriate, bear a legend to the effect that such Securities
have not been registered under the Act or any state securities laws and may not
be transferred except in compliance with terms of the Act and such state
securities laws, or pursuant to an exemption therefrom, and all other agreements
to which such Securities are subject (including, without limitation, the
Stockholders Agreement).
(b) If the Purchaser is an insurance company it also
represents that no part of the funds to be used to purchase the Securities
constitutes or is deemed to constitute assets of an employee benefit plan (as
such term is defined below). If the Purchaser is not an insurance company it
also represents that no part of the funds to be used to purchase the Securities
constitutes assets of any employee benefit plan, except as otherwise disclosed
in writing to the Company on or prior to the date of the Closing. As used in
this Section 3.2(b), the term "employee benefit plan" shall have the meaning
assigned to such term in Section 3 of ERISA. The Purchaser shall not transfer
the Securities to any Person that does not provide to the Company prior to such
transfer a representation and warranty to the foregoing effect. The Company
shall not be required to give effect to any transfer made in violation of the
preceding sentence.
(c) The Purchaser also represents and warrants to the Company
that (i) it has received and reviewed the Memorandum; (ii) it has authorized the
purchase of the Securities; (iii) the purchase of Securities does not violate
its charter, by-laws, certificate of limited partnership, agreement of limited
partnership, other organizational documents or any law or regulation to which it
is subject and (iv) no approval or consent of, or notice to or
19
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filing with, any Person is necessary in connection with the execution,
delivery or performance by the Purchaser of the transactions contemplated by
this Agreement.
(d) This Agreement has been duly authorized by the Purchaser
and, when executed and delivered by the Purchaser (assuming the due
authorization, execution and delivery by the Company), will constitute a valid
and legally binding agreement of the Purchaser, enforceable against it in
accordance with its terms, except as such enforceability may be limited by (i)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws now or hereafter in effect relating to creditors' rights and
remedies generally, (ii) general equitable principles whether asserted in an
action at law or in equity, and that such enforceability may be subject to the
discretion of the court before which any proceedings therefor may be brought and
(iii) rights to indemnity or contribution may be limited by federal or state
securities laws or the public policy underlying such laws.
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
Section 4.1. Conditions Precedent to Obligations of the
Purchaser. The obligation of the Purchaser to purchase the Securities to be
purchased by it hereunder is subject, at the Time of Purchase, to the
satisfaction of the following conditions:
(a) The Purchaser shall have received an opinion, addressed to
it in form and substance reasonably satisfactory to the Purchaser and
dated the Time of Purchase of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., general counsel to
the Company, and of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special
counsel to the Company, substantially in the form of Exhibit 2 hereto.
In rendering such opinions in accordance with Section 4.1(a), each such
counsel may rely as to factual matters upon certificates or other
documents furnished by officers and directors of the Company and
representations of the Purchaser and by government officials, and upon
such other documents as such counsel deem appropriate as a basis for
their opinion. Each such counsel may specify the jurisdictions in which
it is admitted to practice and that it is not admitted to practice in
any other jurisdiction and is not an expert in the law of any other
jurisdiction.
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(b) The representations and warranties made by the Company
herein shall be true and correct in all material respects (except for
changes expressly provided for in this Agreement) on and as of the Time
of Purchase with the same effect as though such representations and
warranties had been made on and as of the Time of Purchase except for
representations and warranties expressly made as of an earlier date,
which need only be true and correct in all material respects as of
such earlier date and the Company shall have complied in all material
respects with all of its agreements as set forth in this Agreement
and in the Common Stock Registration Rights Agreement, as the case
may be, required to be performed by it at or prior to the Time of
Purchase.
(c) Subsequent to the date of the Memorandum, (i) there shall
not have been any change, or any development involving a prospective
change, which has affected or may affect materially and adversely the
businesses or properties or the financial condition or the results of
operations of the Company and the Subsidiaries, taken as a whole (it
being understood that the failure to consummate any of the Pending
Acquisitions alone shall not be deemed to constitute such a change);
and (ii) except for the Pending Acquisitions, the Company and the
Subsidiaries shall have conducted their respective businesses only in
the ordinary course.
(d) At the Time of Purchase and after giving effect to the
consummation of the transactions contemplated by this Agreement and the
Common Stock Registration Rights Agreement, there shall exist no
Default or Event of Default.
(e) As to the Purchaser, the purchase of and payment for the
Securities (i) shall not be prohibited or enjoined (temporarily or
permanently) by any applicable law or governmental regulation
(including, without limitation, Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System), (ii) shall not subject the
Purchaser to any penalty, or in its reasonable judgment, other onerous
condition under or pursuant to any applicable law or governmental
regulation (provided, however, that such regulation, law or onerous
condition was not in effect at the date of this Agreement), and (iii)
shall be permitted by the laws and regulations of the jurisdictions to
which it is subject.
(f) At the Time of Purchase, the Purchaser shall have received
a certificate dated the Time of Purchase from the Company stating that
the conditions specified in
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Sections 4.1(b), (c) and (d) have been satisfied or duly waived at
the Time of Purchase.
(g) The Common Stock Registration Rights Agreement shall be
substantially in the form attached hereto or described herein and the
Common Stock Registration Rights Agreement and the Stockholder's
Agreement shall have been executed and delivered by all the
respective parties thereto and shall be in full force and effect.
(h) The Time of Purchase shall not be later than 5:00 P.M.,
New York City time, on October 4, 1996, subject to extension if the
Purchaser agrees to extend the Time of Purchase upon request to do so
by the Company.
(i) All proceedings taken in connection with the issuance of
the Securities and the transactions contemplated by this Agreement, the
Common Stock Registration Rights Agreement and all documents and papers
relating thereto shall be reasonably satisfactory to the Purchaser. The
Purchaser shall have received copies of such papers and documents as
they may reasonably request in connection therewith, all in form and
substance reasonably satisfactory to them.
(j) The Preemptive Right Opinion shall have been received by
the Company.
(k) On or before the Time of Purchase, the Purchaser shall
have received such further documents, opinions, certificates and
schedules or other instruments relating to the business, corporate,
legal and financial affairs of the Company and its Subsidiaries as it
may reasonably request.
Section 4.2. Conditions Precedent to Obligations of the
Company. The obligations of the Company to issue and sell the Securities
pursuant to this Agreement are subject, at the Time of Purchase, to the
satisfaction of the following conditions:
(a) The representations and warranties made by the Purchaser
herein shall be true and correct in all material respects at and as of
the Time of Purchase with the same effect as though such
representations and warranties had been made on and as of the Time of
Purchase.
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(b) The issuance or sale of the Securities by the Company (i)
shall not be enjoined under the laws of any jurisdiction to which the
Company is subject (temporarily or permanently) at the Time of
Purchase, (ii) shall not subject the Company to any penalty, or in its
reasonable judgment, other onerous condition under or pursuant to any
applicable law or governmental regulation (provided, however, that
such regulation, law or onerous condition was not in effect at the date
of this Agreement), and (iii) shall be permitted by the laws and
regulations of the jurisdictions to which it is subject.
(c) The Common Stock Registration Rights Agreement shall be
satisfactory in form and substance to the Company and shall have been
executed and delivered by all respective parties thereto and shall be
in full force and effect and counsel to the Company shall have received
a copy of such document duly executed by such parties.
(d) The Preemptive Right Opinion shall have been received by
the Company in a form and substance acceptable to it.
(e) The Unit Sale shall have occurred immediately prior to the
Time of Purchase.
ARTICLE V
COVENANTS
Section 5.1. Use of Proceeds. The Company will use the
proceeds from the issuance and sale of the Securities for general corporate
purposes.
Section 5.2. Adjustments. If the Company at any time prior to
the Time of Purchase shall, by subdivision, stock dividend, stock split,
combination, reclassification or modification of terms of securities or
otherwise, change the Securities into the same or a different number of
securities of any class or classes, the Purchaser shall thereafter be entitled
to acquire such number and kind of securities as would have been issuable as the
result of such change with respect to the Securities immediately prior to such
subdivision, stock dividend, stock split, combination, reclassification or other
change. If the shares of
23
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Common Stock are subdivided or combined into a greater or smaller number of
shares, the number of shares issuable hereunder shall be appropriately adjusted
by the ratio which the total number of such shares to be outstanding
immediately after such event bears to the total number of such shares
outstanding immediately prior to such event. The Company hereby agrees to
provide to the Purchaser notice of any such adjustment promptly after the
occurrence thereof. No adjustment shall be made hereunder if such adjustment
would reduce the purchase price to an amount below the par value of the Common
Stock on the date of this Agreement.
Section 5.3. Stockholders Agreement. The Purchaser agrees that
(a) the Securities will be subject to the terms of the Stockholders Agreement
which, among other things, restricts the transfer of the Securities and subjects
the Securities to certain "drag- along" rights, (b) the certificates
representing the Securities will bear the legends required by the Stockholders
Agreement and (c) upon amendment to the Stockholders Agreement it will execute a
joinder agreement to the Stockholders Agreement in form and substance reasonably
satisfactory to the Company.
Section 5.4. Board Representation. The Company agrees that it
shall include one person selected by the Purchaser in its nominations for the
Company's Board of Directors, and shall use all reasonable commercial efforts to
cause the election of such person; provided that, this agreement by the Company
shall terminate and be of no force and effect if the Purchaser ceases to own
[75%] of (i) the shares of Common Stock purchased hereby and (ii) the Units
purchased by it pursuant to the Memorandum immediately prior to the Time of
Purchase. The Purchaser's right hereby to designate a person for nomination to
the Company's Board of Directors is personal to the Purchaser and
nontransferable. The Company's obligation hereby shall be deemed satisfied if
the holders of the Preferred Stock and the 14% Senior Redeemable Preferred
Stock, Series C, acting together as a single series and class, select the
Purchaser's nominee for director on the Company's Board of Directors in
accordance with Section 5 of the Certificate of Designation for such preferred
stock and the Company shall have included such nominee in its nominations and
shall have used all reasonable commercial efforts to cause the election of such
nominee.
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ARTICLE VI
INDEMNITY
Section 6.1. Indemnity.
(a) Indemnification by the Company. The Company agrees and
covenants to hold harmless and indemnify the Purchaser and each person, if any,
who controls the Purchaser within the meaning of Section 20 of the Exchange Act
from and against any losses, claims, damages, liabilities and expenses
(including expenses of investigation) to which the Purchaser or such
controlling person may become subject (i) arising out of or based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Memorandum (as updated and amended and delivered to the Purchaser) and any
amendments or supplements thereto (as updated and amended and delivered to the
Purchaser) or arising out of or based upon the omission or alleged omission to
state in the Memorandum (as updated and amended and delivered to the Purchaser)
a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) arising out of, based upon or in any
way related or attributed to claims, actions or proceedings relating to this
Agreement or the subject matter of this Agreement and resulting from any
breach of any representation, warranty, covenant or agreement of the Company
or any of the Material Subsidiaries contained in this Agreement or (iii)
arising in any manner out of or in connection with such Person being a Purchaser
of the Securities and relating to any action taken or omitted to be taken by the
Company or any of the Material Subsidiaries in violation of this Agreement;
provided, however, that the Company shall not be liable under this paragraph (a)
for any amounts paid in settlement of claims without its written consent, which
consent shall not be unreasonably withheld, or to the extent that it is finally
judicially determined that such losses, claims, damages or liabilities arose
primarily out of the gross negligence, willful misconduct or bad faith of the
Purchaser or such indemnified person. The Company further agrees to reimburse
the Purchaser for any reasonable legal and other expenses as they are incurred
by it in connection with investigating, preparing to defend or defending any
lawsuits, claims or other proceedings or investigations arising in any manner
out of or in connection with such Person being a Purchaser; provided that if the
Company reimburses the Purchaser hereunder for any expenses incurred in
connection with a lawsuit, claim or other proceeding for which indemnification
is sought, the Purchaser hereby agrees to refund such reimbursement of expenses
to the extent it is finally judicially determined that the losses, claims,
damages or liabilities arising out of or in connection with such lawsuit,
25
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claim or other proceedings arose primarily out of the gross negligence, willful
misconduct or bad faith of the Purchaser or such indemnified person or from a
violation by the Purchaser of legal requirements applicable to the Purchaser
solely because of its character as a particular type of regulated institution.
The Company further agrees that the indemnification, contribution and
reimbursement commitments set forth in this Article VI shall apply whether or
not the Purchaser is a formal party to any such lawsuits, claims or other
proceedings. Notwithstanding the foregoing, the Company shall not be liable to a
party seeking indemnification under the foregoing provisions of this paragraph
(a) to the extent that any such losses, claims, damages, liabilities or expenses
arise out of or are based upon an untrue statement or omission made in any of
the documents referred to in this paragraph (a) in reliance upon and in
conformity with the information relating to the party seeking indemnification
furnished in writing by such party for inclusion therein. The indemnity,
contribution and expense reimbursement obligations of the Company under this
Article VI shall be in addition to any liability the Company may otherwise have.
(b) Procedure. If any Person shall be entitled to indemnity
hereunder (the "Indemnified Parties"), such Indemnified Party shall give prompt
notice confirmed in writing to the party or parties from which such indemnity is
sought (the "Indemnifying Parties") of the commencement of any proceeding (a
"Proceeding") with respect to which such Indemnified Party seeks indemnification
or contribution pursuant hereto; provided, however, that the failure so to
notify the Indemnifying Parties shall not relieve the Indemnifying Parties from
any obligation or liability except to the extent that the Indemnifying Parties
have been prejudiced materially by such failure. The Indemnifying Parties shall
have the right, exercisable by giving written notice to an Indemnified Party
promptly after the receipt of written notice from such Indemnified Party of such
Proceeding, to assume, at the Indemnifying Parties' expense, the defense of any
such Proceeding, with counsel reasonably satisfactory to such Indemnified Party;
provided, however, that an Indemnified Party or parties (if more than one such
Indemnified Party is named in any Proceeding) shall have the right to employ
separate counsel in any such Proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party or parties unless: (1) the Indemnifying Parties agree to
pay such fees and expenses; or (2) the Indemnifying Parties fail promptly to
assume the defense of such Proceeding or fail to employ counsel reasonably
satisfactory to such Indemnified Party or parties; or (3) the named parties to
any such Proceeding (including any impleaded parties) include both such
Indemnified Party or Parties and the Indemnifying Party or an Affiliate of the
Indemnifying Party and such Indemnified Parties, and the Indemnifying Parties
shall have
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been advised in writing by outside counsel that there may be one or
more material defenses available to such Indemnified Party or parties that are
different from or additional to those available to the Indemnifying Parties, in
which case, if such Indemnified Party or parties notifies the Indemnifying
Parties in writing that it elects to employ separate counsel at the expense of
the Indemnifying Parties, the Indemnifying Parties shall not have the right to
assume the defense thereof and such counsel shall be at the expense of the
Indemnifying Parties, it being understood, however, that, unless there exists a
conflict among Indemnified Parties, the Indemnifying Parties shall not, in
connection with any one such Proceeding or separate but substantially similar or
related Proceedings 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 (together with appropriate local counsel, if any)
at any time for such Indemnified Party or parties, or for fees and expenses
that are not reasonable. No Indemnified Party or parties will settle any
Proceedings without the written consent of the Indemnifying Party or parties
(but such consent will not be unreasonably withheld).
Section 6.2. Contribution. If for any reason the
indemnification provided for in Section 6.1 of this Agreement is unavailable to
an Indemnified Party, or insufficient to hold it harmless, in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then each
applicable 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, claims, damages or liabilities in such proportion as is
appropriate to reflect not only the relative benefits received by the
Indemnifying Party on the one hand and the Indemnified Party on the other, but
also the relative fault of the Indemnifying and Indemnified Parties in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying and Indemnified Parties
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 Indemnifying or
Indemnified Parties and each such party's relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages
and liabilities referred to above shall be deemed to include any reasonable
legal or other fees or expenses incurred by such party in connection with
investigating or defending any such claim.
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The Company and the Purchaser agree that it would not be just
and equitable if contribution pursuant to the immediately preceding paragraph
were determined by any method of allocation which does not take into account the
equitable considerations referred to in such paragraph. No person guilty of
fraudulent misrepresentation shall be entitled to contribution from any Person.
Section 6.3. Common Stock Registration Rights Agreements.
Notwithstanding anything to the contrary in this Article VI, the indemnification
and contribution provisions of the Common Stock Registration Rights Agreement
shall govern any claim with respect thereto.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Survival of Provisions. The representations,
warranties and covenants of the Company and the Purchaser made herein, the
indemnity and contribution agreements contained herein and each of the
provisions of Articles V, VI and VII shall remain operative and in full force
and effect regardless of (a) any investigation made by or on behalf of the
Company, the Purchaser or any Indemnified Party, (b) acceptance of any of the
Securities and payment therefor or (c) except as otherwise provided herein,
disposition of the Securities by the Purchaser whether by redemption, exchange,
sale or otherwise. The respective agreements, covenants, indemnities and other
statements set forth in Article VI and Section 7.6 shall remain in full force
and effect regardless of any termination or cancellation of this Agreement.
Section 7.2. Termination. This Agreement may be terminated (as
to the party electing to so terminate it) at any time prior to the Time of
Purchase:
(a) by the Company if any of the conditions specified in
Section 4.2 of this Agreement have not been met or waived by the
Company pursuant to the terms of this Agreement;
(b) by the Purchaser if any of the conditions specified in
Section 4.1 of this Agreement have not been met or waived pursuant to
the terms of this Agreement by October 4, 1996.
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(c) Termination of this Agreement pursuant to this Section 7.2
shall be without liability of any party to any other party except as
provided in Section 7.1 hereof.
Section 7.3. No Waiver; Modifications in Writing. No failure
or delay on the part of the Company or the Purchaser in exercising any right,
power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
The remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the Company or the Purchaser at law or in
equity or otherwise. No waiver of or consent to any departure by the Company
from any provision of this Agreement shall be effective unless signed in
writing by the party entitled to the benefit thereof, provided that notice of
any such waiver shall be given to each party hereto as set forth below. Except
as otherwise provided herein, no amendment, modification or termination of any
provision of this Agreement shall be effective unless signed in writing by or
on behalf of the Purchaser. Any amendment, supplement or modification of or to
any provision of this Agreement, any waiver of any provision of this Agreement,
and any consent to any departure by the Company from the terms of any
provision of this Agreement, shall be effective only in the specific instance
and for the specific purpose for which made or given. Except where notice is
specifically required by this Agreement, no notice to or demand on the Company
in any case shall entitle the Company to any other or further notice or demand
in similar or other circumstances.
Section 7.4. Communications. All notices, demands and other
communications provided for hereunder shall be in writing and, (a) if to the
Purchaser, shall be given by registered or certified mail, return receipt
requested, telex, telegram, telecopy, courier service or personal delivery,
addressed to Bastion Capital Fund, L.P., Suite 2960, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ or to such other address as the
Purchaser may designate to the Company in writing, with a copy to Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., and (b) if to the Company, shall be given by similar
means to Renaissance Cosmetics, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President or to such other address as the
Company may designate to the Purchaser in writing, with copies to Renaissance
Cosmetics, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq., General Counsel, and ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
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10019, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.. In each case notices, demands and
other communications shall be deemed given when received.
Section 7.5. Taxes. The Company shall pay any and all stamp,
transfer and other similar taxes payable or determined to be payable in
connection with the execution and delivery of this Agreement, the Common Stock
Registration Rights Agreement or the issuance of the Securities, and shall save
and hold the Purchaser harmless from and against any and all liabilities with
respect to or resulting from any delay in paying, or omission to pay, such
taxes.
Section 7.6. Determinations. All determinations to be made by
the Company or the Purchaser hereunder in its opinion or judgment or with its
approval or otherwise shall be made by it in its sole discretion (except as
expressly provided otherwise).
Section 7.7. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 7.8. Binding Effect; Assignment. The rights and
obligations of the Purchaser under this Agreement may not be assigned to any
other Person except with the prior consent of the Company. Except as expressly
provided in this Agreement, this Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this
Agreement, and their respective successors and assigns. This Agreement shall be
binding upon the Company and the Purchaser, and their successors and assigns.
SECTION 7.9. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
Section 7.10. Severability of Provisions. Any provision of
this Agreement which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
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Section 7.11. Headings. The Article and Section headings and
Table of Contents used or contained in this Agreement are for convenience of
reference only and shall not affect the construction of this Agreement.
7.12 Entire Agreement. This Agreement, together with
the exhibits hereto, and the Stockholders' Agreement and are 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 and therein. There
are no restrictions, promises, warranties or undertakings, other than those
set forth or referred to herein or therein. This Agreement, together with the
exhibits hereto, and the Stockholders Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
7.13 Expenses. Whether or not the transactions contemplated by
this Agreement are consummated, the Company and the Purchaser shall each pay its
own respective fees and expenses incurred by, or on behalf of, it, including,
without limitation, all fees and expenses of its legal counsel.
31
-28-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first written above.
RENAISSANCE COSMETICS, INC.
By:______________________________
Name:
Title:
BASTION CAPITAL FUND, L.P.
By:_______________________________
Name:
Title:
32
SCHEDULE 3.1(d)
HOUBIGANT (1995) LIMITED/HOUBIGANT (1995) LIMITEE
▇▇▇▇ PERFUMES (CANADA) LTD.
MARCAFIN S.A.
PERFUMRES ▇▇▇▇ DO BRAZIL, S.A.
RENAISSANCE ACQUISITION, INC.
GREAT AMERICAN COSMETICS, INC.