STOCKHOLDER AGREEMENT
AGREEMENT dated August 7, 1996, by and among
Renaissance Cosmetics, Inc., a Delaware corporation ("RCI"),
Renaissance Acquisition, Inc., a New York corporation and wholly-
owned subsidiary of RCI ("RAI"), and the other parties signatory
hereto (individually and collectively referred to herein as the
"Stockholder")
Capitalized terms used and not defined herein have the
respective meanings assigned to them in the Merger Agreement, as
defined below.
W I T N E S S E T H:
WHEREAS, concurrently herewith, RCI, RAI and MEM
Company, Inc., a New York corporation ("MEM"), are entering into
an Agreement and Plan of Merger (as such agreement may hereafter
be amended from time to time, the "Merger Agreement"), pursuant
to which RAI will be merged with and into MEM (the "Merger"); and
WHEREAS, as an inducement and a condition to entering
into the Merger Agreement, RCI has required that Stockholder
agree, and Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and
the mutual premises, representations, warranties, covenants and
agreements contained herein, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Definitions. For purposes of this Agreement:
a. "Effective Time" shall mean the effective
time of the Merger.
b. "MEM" shall have the meaning set forth in the
Preamble.
c. "MEM Stock" shall mean at any time the common
stock, $.05 par value, of MEM.
d. "Merger" shall have the meaning set forth in
the Preamble.
e. "Merger Agreement" shall have the meaning set
forth in the Preamble.
f. "Person" shall mean an individual, corpora-
tion, partnership, joint venture, association, trust, unincorpo-
rated organization, or other entity.
g. "RAI" shall have the meaning set forth in the
Preamble.
h. "RCI" shall have the meaning set forth in the
Preamble.
i. "Share" or "Shares" shall mean a share or
shares of MEM Stock.
j. "Stockholder" shall have the meaning set
forth in the Preamble.
k. "Subsidiaries" shall mean any corporation in
which MEM owns, directly or indirectly, fifty percent (50%) or
more of the securities of such corporation that are entitled to
vote at a meeting of the stockholders thereof.
2. Provisions Concerning MEM Stock.
a. Stockholder hereby agrees that during the
period commencing on the date hereof and continuing until the
first to occur of the Effective Time or termination of the Merger
Agreement in accordance with its terms, at any meeting of the
holders of MEM Stock, however called, or in connection with any
written consent of the holders of MEM Stock, Stockholder shall
vote (or cause to be voted) the Shares held by Stockholder solely
in his capacity as a stockholder, (i) in favor of the Merger, the
execution and delivery by MEM of the Merger Agreement and the
approval of the terms thereof and each of the other actions
contemplated by the Merger Agreement and this Agreement and any
actions required in furtherance thereof and hereof; (ii) against
any action or agreement that would result in a breach in any
respect of any covenant, representation or warranty or any other
obligation or agreement of MEM under the Merger Agreement or this
Agreement; and (iii) except as otherwise agreed to in writing in
advance by RCI, against the following actions (other than the
Merger and the transactions contemplated by the Merger
Agreement): (A) any extraordinary corporate transaction, such as
a merger, consolidation or other business combination involving
MEM or its Subsidiaries; (B) a sale, lease or transfer of assets
of MEM or its Subsidiaries other than in the ordinary course, or
a reorganization, recapitalization, dissolution or liquidation of
MEM or its Subsidiaries; and/or (C) (1) any change in a majority
of the persons who constitute the board of directors of MEM;
(2) any change in the present capitalization of MEM or any
amendment of MEM'S Certificate of Incorporation or Bylaws;
(3) any other material change in MEM'S corporate structure or
business; or (4) any other action involving MEM or its
Subsidiaries which is intended, or could reasonably be expected,
to impede, interfere with, delay, postpone, or materially
adversely affect the Merger and the transactions contemplated by
this Agreement and the Merger Agreement. Stockholder shall not
enter into any agreement or understanding with any person or
entity the effect of which would be to violate the provisions and
agreements contained in this Section 2.
b. In furtherance of the foregoing, Stockholder
hereby appoints RCI and the proper officers of RCI, and each of
them, with full power of substitution in the premises, his
proxies to vote all such Stockholder's Shares at any meeting of
the holders of MEM Stock, however called, or in connection with
any written consent of the holders of MEM Stock, and hereby
appoints RCI and the proper officers of RCI, and each of them,
with full power of substitution in the premises, his true and
lawful attorneys-in-fact to execute one or more consents or other
instruments from time to time in order to take such actions
informally without the necessity of a meeting of the holders of
MEM Stock; provided, however, that the foregoing shall terminate
upon the first to occur of the Effective Time or termination of
the Merger Agreement in accordance with its terms.
The proxies and powers of attorney granted herein
shall be irrevocable during the term of this Agreement, shall be
deemed coupled with an interest and shall revoke all prior
proxies granted by the Stockholder. The Stockholder shall not
grant any proxy to any person which conflicts with the proxies
granted herein, and any attempt to do so shall be void. The
powers of attorney granted herein is a durable power of attorney
and shall survive the disability or incompetency of the
Stockholder.
3. Other Covenants, Representations and Warranties.
Stockholder hereby represents and warrants to RCI and RAI as
follows:
a. Ownership of Shares. Stockholder is the
record owner of the number of Shares set forth opposite such
Stockholder's name on Schedule I hereto. On the date hereof, the
Shares set forth opposite such Stockholder's name on Schedule I
hereto constitute all of the Shares owned of record by such
Stockholder. Stockholder has sole voting power and sole power to
issue instructions with respect to the matters set forth in
Section 2. hereof, sole power of disposition, sole power of
conversion, sole power to demand appraisal rights and sole power
to agree to all of the matters set forth in this Agreement, in
each case with respect to all of the Shares set forth opposite
Stockholder's name on Schedule I hereto, with no limitations,
qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
b. Power; Binding Agreement. Stockholder has
the legal capacity, power and authority to enter into and perform
all of Stockholder's obligations under this Agreement. The
execution, delivery and performance of this Agreement by such
Stockholder will not violate any other agreement to which
Stockholder is a party, including, without limitation, any voting
agreement, stockholders agreement or voting trust. This
Agreement has been duly and validly executed and delivered by
Stockholder and constitutes a valid and binding agreement of such
Stockholder, enforceable against such Stockholder in accordance
with its terms. There is no beneficiary or holder of a voting
trust certificate or other interest of any trust of which
Stockholder is trustee whose consent is required for the
execution and delivery of this Agreement or the consummation by
Stockholder of the transactions contemplated hereby.
c. No Encumbrances. Except as otherwise set
forth herein, Stockholder's Shares and the certificates
representing such Shares are now, and at all times during the
term hereof will be, held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of
all liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other
encumbrances whatsoever, except for any such encumbrances or
proxies arising hereunder.
d. No Solicitation. Until the earlier of the
Effective Time or termination of the Merger Agreement in
accordance with its terms, Stockholder shall not, in his capacity
as such, directly or indirectly, solicit (including by way of
furnishing information) or respond to any inquiries or the making
of any proposal by any person or entity (other than RCI or any
affiliate of RCI) with respect to MEM that constitutes an
Acquisition Transaction; provided, however, that the foregoing
shall not restrict Stockholder when acting as a director or
officer of MEM.
e. Restriction on Transfer, Proxies, and Non-
Interference. Until the earlier of the Effective Time or
termination of the Merger Agreement in accordance with its terms,
Stockholder shall not (i) directly or indirectly, offer for sale,
sell, transfer, tender, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the
offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of such
Stockholder's Shares or any interest therein; (ii) except as
contemplated by this Agreement or the Merger Agreement, grant any
proxies or powers of attorney, deposit any Shares into a voting
trust or enter into a voting agreement with respect to any
Shares; or (iii) take any action that would make any
representation or warranty of such Stockholder contained herein
untrue or incorrect or have the effect of preventing or disabling
Stockholder from performing Stockholder's obligations under this
Agreement.
f. Waiver of Appraisal Rights. Stockholder
hereby waives any rights of appraisal or rights to dissent from
the Merger that Stockholder may have.
g. Reliance by RCI and RAI. Stockholder
understands and acknowledges that RCI is entering into, and
causing RAI to enter into, the Merger Agreement in reliance upon
Stockholder's execution and delivery of this Agreement.
h. Further Assurances. From time to time, at
the other party's request and without further consideration, each
party hereto shall execute and deliver such additional documents
and take all such further lawful action as may be necessary or
desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by
this Agreement.
4. Stop Transfer; Changes in Shares. Until the
earlier of the Effective Time or termination of the Merger
Agreement in accordance with its terms, Stockholder agrees with,
and covenants to, RCI and RAI that Stockholder shall not request
that MEM register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of
Stockholder's Shares, unless such transfer is made in compliance
with this Agreement (including the provisions of Section 2.
hereof). In the event of a stock dividend or distribution, or
any change in the MEM Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or
the like, the term "Shares" shall be deemed to refer to and
include the Shares as well as all such stock dividends and
distributions and any shares into which or for which any or all
of the Shares may be changed or exchanged.
5. Fiduciary Duties. Notwithstanding anything in
this Agreement to the contrary, the covenants and agreements set
forth herein shall not prevent Stockholder from taking any
action, subject to the applicable provisions of the Merger
Agreement, while acting in the capacity as a director of MEM.
6. Miscellaneous.
a. Entire Agreement. This Agreement and the
Merger Agreement constitute the entire agreement between the
parties with respect to the subject matter hereof and together
supersede all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject
matter hereof.
b. Certain Events. Stockholder agrees that this
Agreement and the obligations hereunder shall attach to
Stockholder's Shares and shall be binding upon any person or
entity to which legal or beneficial ownership of such Shares
shall pass, whether by operation of law or otherwise, including,
without limitation, such Stockholder's heirs, guardians,
administrators or successors. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of
all obligations under this Agreement of the Stockholder.
c. Assignment. This Agreement shall not be
assigned by Stockholder by operation of law or otherwise without
the prior written consent of RCI. No rights, or any direct or
indirect interest herein, of Stockholder shall be transferable
hereunder without the prior written consent of RCI. For purposes
of this Section 6.c., RCI and RAI shall be treated as a single
party and consent by RCI shall be deemed to be consent by RAI.
d. Amendments, Waivers, Etc. This Agreement may
not be amended, changed, supplemented, waived or otherwise
modified or terminated, except upon the execution and delivery of
a written agreement executed by the parties hereto. For purposes
of this Section 6.d., RCI and RAI shall be treated as a single
party and RCI shall have the authority to execute any such
written agreement for and on behalf of RAI.
e. Notices. All notices, requests, claims,
demands and other communications hereunder shall be in writing
and shall be given (and shall be deemed to have been duly
received if so given) by hand delivery, telegram, telex or
telecopy, or by mail (registered or certified mail, postage
prepaid, return receipt requested) or by any courier service,
such as Federal Express, providing proof of delivery. All
communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder: At the address set forth on
Schedule I hereto.
copy to: Proskauer ▇▇▇▇ ▇▇▇▇▇ & Mendelssohn LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
If to RCI or RAI:
Renaissance Cosmetics, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman,
Chief Executive Officer and President
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
copy to: ▇▇▇▇▇▇▇▇▇▇ Hyatt ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the person to whom notice is given
may have previously furnished to the others in writing in the
manner set forth above. Notice properly given to RCI as provided
in this Section 6.e. shall be deemed to be notice given to RAI
for all purposes under this Section 6.e.
f. Severability. Whenever possible, each
provision or portion of any provision of this Agreement will be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision or portion of any provision
of this Agreement is held to be invalid, illegal or unenforceable
in any respect under any applicable law or rule in any jurisdic-
tion, such invalidity, illegality or unenforceability will not
affect any other provision or portion of any provision in such
jurisdiction, and this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision or portion of any provision had never
been contained herein.
g. Specific Performance. Each of the parties
hereto recognizes and acknowledges that a breach by it of any
covenants or agreements contained in this Agreement will cause
the other party to sustain damages for which it would not have an
adequate remedy at law for money damages, and therefore each of
the parties hereto agrees that in the event of any such breach,
the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and
other equitable relief in addition to any other remedy to which
it may be entitled, at law or in equity.
h. Remedies Cumulative. All rights, powers and
remedies provided under this Agreement or otherwise available in
respect hereof at law or in equity shall be cumulative and not
alternative, and the exercise of any thereof by any party shall
not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
i. No Waiver. The failure of any party hereto
to exercise any right, power or remedy provided under this
Agreement or otherwise available in respect hereof at law or in
equity, or to insist upon compliance by any other party hereto
with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a
waiver by such party of its right to exercise any such or other
right, power or remedy or to demand such compliance.
j. No Third Party Beneficiaries. This Agreement
is not intended to be for the benefit of, and shall not be
enforceable by, any person or entity who or which is not a party
hereto.
k. Governing Law. This Agreement shall be
governed and construed in accordance with the laws of the State
of New York, without giving effect to the principles of conflicts
of law thereof.
l. Jurisdiction. Each party hereby irrevocably
submits to the exclusive jurisdiction of the United States
District Court for the Southern District of New York or any court
of the State of New York located in the County of New York in any
action, suit or proceeding arising in connection with this
Agreement, and agrees that any such action, suit or proceeding
shall be brought only in such court (and waives any objection
based on forum non conveniens or any other objection to venue
therein); provided, however, that such consent to jurisdiction is
solely for the purpose referred to in this Section 6.1. and shall
not be deemed to be a general submission to the jurisdiction of
said courts or in the State of New York other than for such
purposes. Each party hereto hereby waives any right to a trial
by jury in connection with any such action, suit or proceeding.
m. Descriptive Headings. The descriptive
headings used herein are inserted for convenience of reference
only and are not intended to be part of or to affect the meaning
or interpretation of this Agreement.
n. Counterparts. This Agreement may be executed
in multiple counterparts, any one of which need not contain the
signature of more than one party, but all of which counterparts,
taken together, shall constitute one and the same agreement.
Signatures may be exchanged by telecopy, with original signatures
to follow. Each party hereto agrees that he or it will be bound
by his or its own telecopied signature and that he or it accepts
the telecopied signatures of the other parties hereto.
o. No Strict Construction. The language used in
this Agreement shall be deemed to be the language chosen by the
parties to express their mutual intent, and no rule of strict
construction shall be applied against any person.
p. Attorneys' Fees. If any dispute arises with
respect to the terms and conditions of this Agreement, the
prevailing (or substantially prevailing) party shall have the
right to recover all expenses (including reasonable attorneys'
fees) from the other party hereto.
IN WITNESS WHEREOF, RCI, RAI and Stockholder have
caused this Agreement to be duly executed as of the day and year
first above written.
RENAISSANCE COSMETICS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
RENAISSANCE ACQUISITION, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
STOCKHOLDER
By: /s/ Gay ▇. ▇▇▇▇▇
Name: Gay ▇. ▇▇▇▇▇
By:
Name:
By:
Name:
By:
Name:
By:
Name:
By:
Name:
By:
Name:
By:
Name:
By:
Name:
SCHEDULE I
STOCKHOLDER
NAME AND ADDRESS NUMBER OF SHARES OWNED
Gay ▇. ▇▇▇▇▇ 353,565
c/o MEM Company, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇