EXHIBIT 10.29
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement") is made as of this 20th
day of February, 2004, by and between Revlon, Inc., a Delaware corporation (the
"Company"), and Fidelity Management & Research Co., a Delaware corporation
("Fidelity").
W I T N E S S E T H:
WHEREAS, on February 11, 2004, the Company's Board of Directors (the
"Board of Directors") approved the Company's entering into exchange offers (the
"Exchange Offers") and related transactions, as more fully described in the
Fidelity Support Agreement (as defined below) and the term sheet attached as
Exhibit A to the Fidelity Support Agreement (the "Term Sheet"), in order to
reduce the indebtedness of Revlon Consumer Products Corporation, the Company's
wholly-owned subsidiary ("Products Corporation"), by issuing shares of the
Company's Class A common stock, with a par value of $0.01 per share ("Class A
Common Stock"), in exchange for or upon conversion of, as applicable, certain
outstanding indebtedness of Products Corporation, and the Company's Series A and
Series B preferred stock;
WHEREAS, on February 11, 2004, the Company and Fidelity entered into a
support agreement (as amended, the "Fidelity Support Agreement") pursuant to
which Fidelity agreed to tender into the Exchange Offers all of the Initial
Fidelity Notes (as defined in the Fidelity Support Agreement) held by it and its
affiliates or consolidated funds in exchange for shares of Class A Common Stock,
with any accrued and unpaid interest on such Exchange Notes exchangeable for, at
the option of Fidelity, shares of Class A Common Stock or cash; and
WHEREAS, pursuant to the terms and provisions of the Fidelity Support
Agreement, the parties desire to enter into this Agreement to memorialize
certain agreements between Fidelity and the Company.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Fidelity do hereby
agree as follows:
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1.1 Committees. Within 30 days of the date of the consummation of the
Exchange Offers, the Company shall, as authorized by Article IV of its By-laws,
establish and maintain a nominating and corporate governance committee in
accordance with the New York Stock Exchange Listed Company Manual (the "NYSE
Listed Company Manual").
1.2 Independent Directors. Following the consummation of the Exchange
Offers, the Company shall maintain a majority of independent directors (each an
"Independent Director") on its Board of Directors, each of whom meets the
"independence" criteria as set forth in Section 303A.02 of the NYSE Listed
Company Manual; provided, however, that for purposes of this Agreement any
Fidelity Appointee (as defined in the Term Sheet) shall be deemed an Independent
Director without regard to such criteria.
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2. RELATED PARTY TRANSACTIONS.
2.1 Transactions with Affiliates. Immediately following the
consummation of the Exchange Offers, the Company shall not conduct any business
or enter into any transactions or series of related transactions with (i) any
affiliate (other than the Company's Subsidiaries) or (ii) a legal or beneficial
owner of 10% or more of the voting power of the Voting Stock or an affiliate of
such owner (other than the Company's Subsidiaries), other than any transaction
(A) contemplated by the Fidelity Support Agreement or pursuant to agreements or
arrangements entered into prior to the date of the Fidelity Support Agreement
and disclosed to Fidelity, (B) described in the Company's proxy statement or
other periodic public filings with the Securities and Exchange Commission on or
prior to the date hereof, or (C) specifically permitted by Section 4.08 of each
of the indentures of Products Corporation, as supplemented, amended or otherwise
modified from time to time, pursuant to which the Exchange Notes were issued and
are governed (the "Indentures") (for purposes of this Section 2.1 only, any
reference to Products Corporation in Section 4.08 of the Indentures, with
respect to transactions with affiliates, shall refer to the Company) unless, (y)
with respect to a transaction or series of related transactions, other than the
purchase or sale of inventory in the ordinary course of business, involving
aggregate payments or other consideration in excess of $5.0 million, such
transaction or series of related transactions has been approved by all of the
Independent Directors of the Board of Directors, and (z) with respect to a
transaction or series of related transactions, other than the purchase or sale
of inventory in the ordinary course of business, involving aggregate payments or
other consideration in excess of $20.0 million, such transaction or series of
related transactions has been determined, in the written opinion of a nationally
recognized, investment banking firm, to be fair, from a financial point of view,
to the Company.
As used in this Agreement the term Subsidiary shall mean any
corporation, limited liability company or other person of which shares of stock
or other ownership interests having a majority of the general voting power in
electing the board of directors thereof or other persons performing a similar
function are, at the time of which any determination is being made, owned by the
Company either directly or through its Subsidiaries and any partnership in which
the Company or any Subsidiary is a general partner.
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3. REPRESENTATIONS AND WARRANTIES. The parties represent and warrant to
each other with respect to themselves as of the date hereof as follows:
3.1 Organization. Such party (a) is duly organized, validly existing
and in good standing under the laws of the State of Delaware and (b) has all
corporate power and authority to consummate the transactions contemplated by
this Agreement.
3.2 Due Authorization. Such party has the requisite corporate power and
authority to enter into, execute and deliver this Agreement and to perform its
obligations hereunder, and has taken all necessary corporate action, required
for the due authorization, execution, delivery and performance by it of this
Agreement.
3.3 Due Execution; Enforceability. This Agreement has been duly and
validly executed and delivered by such party and constitutes its valid and
binding obligation, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
3.4 No Conflicts. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereunder by
such party will not (a) conflict with or result in any breach of any provision
of such party's certificate of incorporation, or by-laws, (b) conflict with or
result in the breach of the terms, conditions or provisions of or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or give rise to any right of termination, acceleration or
cancellation under, any material agreement, lease, mortgage, license, indenture,
instrument or other contract to which it is a party or by which any of its
properties or assets are bound, or (c) result in a violation of any law, rule,
regulation, order, judgment or decree (including, without limitation, federal
and state securities laws and regulations) applicable to it or by which any of
its properties or assets are bound or affected, except in the case of clauses
(b) or (c), where such conflicts or violations would not prevent or materially
delay its ability to consummate the transactions contemplated by this Agreement.
4. MISCELLANEOUS.
4.1 Termination. Unless provisions of this Agreement are earlier
terminated pursuant to their terms or as agreed to by the parties hereto, this
Agreement shall terminate and shall be of no further force or effect (x) from
and after the consummation of the Exchange Offers, at such time as Fidelity
ceases to be a beneficial owner of at least 5% of the Company's outstanding
Voting Stock, or (y) June 30, 2004, in the event that the Exchange Offers have
not been consummated by such time.
4.2 Limitation on Borrowings in Fidelity Support Agreement. Fidelity and
the Company agree that, notwithstanding anything to the contrary in the Fidelity
Support Agreement,
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the Borrowing Limitation (as defined in the Fidelity Support Agreement) shall
survive the termination of the Fidelity Support Agreement and shall terminate
upon termination of this Agreement.
4.3 Titles. The titles of the sections of this Agreement are for
convenience of reference only and are not to be considered in construing this
Agreement.
4.4 Counterparts. This Agreement may be executed in two or more
counterparts, which may be by facsimile, each of which shall be an original, but
all of which together shall constitute one instrument.
4.5 Governing Law; Jurisdiction. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
(without regard to its laws relating to conflicts of laws). The parties hereto
irrevocably and unconditionally consent to submit to the exclusive jurisdiction
of the Court of Chancery of the State of Delaware in and for New Castle County
(or, if such court lacks jurisdiction, any other court of the State of Delaware)
and/or the courts of the United States of America located in the State of
Delaware for any actions, suits or proceedings out of or relating to this
Agreement and the transactions contemplated hereby. The parties hereto
irrevocably waive, to the fullest extent permitted by law, any objection which
he may have now or hereafter to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
4.6 Entire Agreement; Amendment. This Agreement and the Fidelity Support
Agreement constitute the full and entire understanding and agreement between the
parties with regard to the subject matter hereof. This Agreement and the
Fidelity Support Agreement supersede all prior agreements and understandings
between the parties with respect to such subject matter but do not supersede any
existing confidentiality agreements between the parties hereto. Neither this
Agreement nor any term hereof may be amended, waived, discharged or terminated,
except by the written consent of the parties hereto.
4.7 Notices. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if (i)
delivered personally, (ii) by facsimile transmission, (iii) mailed (first class
postage prepaid) or (iv) emailed to the parties at the following addresses,
facsimile numbers or email addresses:
If to the Company:
Revlon, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX
Attention: Xxxxxx X. Xxxxxxxx
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Executive Vice President and Chief Legal Officer
Facsimile: 000-000-0000
Email: xxxxxx.xxxxxxxx@xxxxxx.xxx
With one copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: J. Xxxxxxx Xxxxxx
Facsimile: 000-000-0000
email: xxxxxxx@xxxxxxx.xxx
If to Fidelity:
Fidelity Management & Research Co.
c/o Fidelity Investments
00 Xxxxxxxxxx Xxxxxx X00X
Xxxxxx, XX 00000
Attention: Xxxx Xxx Xxxxx
Assistant General Counsel
Facsimile: (000) 000-0000
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With one copy (which shall not constitute notice) to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Email: xxxxxxx@xxxxxxxxxxx.xxx
or at such other address as the parties shall have furnished to each other in
writing:
4.8 No Third Party Beneficiary. This Agreement is made solely and
specifically among and for the benefit of the parties hereto, and their
respective successors and assigns and no other person will have any rights,
interest or claims hereunder or be entitled to any benefits under or on account
of this Agreement as a third party beneficiary or otherwise.
4.9 Specific Performance. The parties hereto acknowledge that, in view
of the uniqueness of the arrangements contemplated by this Agreement, each party
would not have an adequate remedy at law for money damages in the event that
this Agreement were not performed in accordance with its terms and, therefore,
agree that each party shall be entitled to specific enforcement of the terms
hereof in addition to any other remedy to which it may be entitled, at law or in
equity. To the extent any of the parties may be entitled to the benefit of any
provision of law requiring any party in any suit, action or proceeding arising
out of or in connection with this Agreement or any of the transactions
contemplated hereby to post security for litigation costs or otherwise post a
performance bond or guaranty or to take any similar action, each party hereby
irrevocably waives such benefit, in each case to the fullest extent now or
hereafter permitted under the laws of any such jurisdiction.
4.10 Severability. Any provision hereof that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or
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unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by law, the parties hereto waive any provision of law that renders any
such provision prohibited or unenforceable in any respect.
[Execution Page Follows]
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IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement as of the day and year first above written.
FIDELITY MANAGEMENT & RESEARCH
CO., a Delaware corporation
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Portfolio Manager
THE COMPANY:
REVLON, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President,
General Counsel and Chief Legal
Officer
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