EXHIBIT 10.2
AMENDMENT NO. 1 TO
ASSET PURCHASE AGREEMENT
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT (this "Amendment") dated
as of June 10, 1999, by and between Jafra Cosmetics International, Inc. a
Delaware corporation ("Jafra") and Universal Packaging Systems, Inc., a
California corporation ("Contractor").
W I T N E S S E T H
WHEREAS, Jafra and Contractor are parties to an Asset Purchase
Agreement, dated as of June 10, 1999, by and between Jafra and Contractor (the
"Asset Purchase Agreement");
WHEREAS, the parties desire to amend the Asset Purchase Agreement to
provide for certain post-closing matters as set forth below;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the parties
hereto agree to amend the Asset Purchase Agreement as follows:
ARTICLE I
AMENDMENTS
1.1 Paragraph 1.1.1(a) of the Asset Purchase Agreement is hereby deleted
in its entirety, and the following substituted in lieu thereof:
1.1.1 Sale of Assets. (a) Subject to the terms and conditions of this
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Agreement, at the Closing of the transactions contemplated by this
Agreement (the "Closing"), Jafra will sell, convey, assign and transfer
certain assets (the "Assets") to Contractor and Contractor will purchase
the Assets from Jafra, free and clear of all liens, claims and encumbrances
(collectively "Liens") of third parties, other than Liens created pursuant
to that certain Security Agreement dated as of April 30, 1998, among Jafra
(formerly known as CDRJ Acquisition Corporation), each subsidiary of Jafra
listed on Schedule I thereto and Credit Suisse First Boston, as collateral
agent for the secured parties named therein (the "CSFB Security
Agreement"). The specific items to be included in the Assets will be listed
on a schedule to be agreed upon between Contractor and Jafra, and attached
to this Agreement, on or before ***.
1.2 Paragraph 1.1.2 of the Asset Purchase Agreement is hereby deleted in
its entirety, and the following substituted in lieu thereof:
1.1.2 Sale of Inventory. Subject to the terms and conditions of this
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Agreement, at the Closing Jafra will sell, convey, assign and transfer the
inventory, raw materials and components that Jafra has in stock (the
"Inventory") to Contractor and Contractor will purchase the Inventory from
Jafra free and clear of all Liens of third parties, other than Liens
created pursuant to the CSFB Security Agreement. The specific items to be
contained in the Inventory will be determined at the conclusion of the
transfer of the Inventory, which transfer shall be concluded no later than
***. Jafra warrants that: (i) the age of the Inventory will be such that it
will not expire on or before ***, and (ii) the Inventory will be usable and
used to manufacture Products for Jafra on or before ***. In the event of a
breach of the foregoing warranty, Jafra agrees to credit against principal
owing on the Inventory Note (defined below) an amount equal to that which
Contractor paid for that portion of the Inventory that does not conform to
the foregoing warranty.
1.3 The following paragraph shall be added to the Asset Purchase
Agreement:
7.6 Release or Termination of Liens. To the extent that any of the
Assets and Inventory remain subject to any Liens under the CSFB Security
Agreement at or after the Closing, Jafra agrees that on or before ***, it
will take, or cause to be taken, all actions necessary and proper to
release and/or terminate any Liens against the Assets and the Inventory
under the CSFB Security Agreement, including, without limitation: the
execution and filing in the appropriate jurisdictions of UCC-3s (or such
other similar filings as may be required) to provide for the release of
Liens on the Assets and Inventory created by the CSFB Security Agreement.
ARTICLE II
MISCELLANEOUS
2.1 Notices. All notices, demands or other communications hereunder shall
be in writing and shall be deemed to have been duly given on the date of
delivery, if delivered in person, and on the date of receipt, if sent by
facsimile transmission (with telephonic and mail confirmation) or by recognized
overnight carrier service (e.g., Federal Express or United Parcel Service), and
three (3) business days after mailing by United States mail, certified or
registered with return receipt requested, addressed to the parties at their
addresses set forth below:
If to Jafra, to:
Jafra Cosmetics International, Inc.
2451 Townsgate Road
Westlake Village, California 91361
Attn: Vice President, Manufacturing
Fax: 805-449-3259
With a copy to:
Office of the General Counsel
Fax: 805-449-3256
If to Contractor, to:
Universal Packaging Systems, Inc.
4575 Danito Court
Chino, California 91710
Attn: Julio Liberal
Fax: 909-590-5869
With a copy to:
Ronald J. Grant, Esq.
Tilles, Webb, Kulla & Grant, ALC
433 North Camden Drive, Suite 1010
Beverly Hills, California 90210
Fax: 310-888-3433
Any party may change its address for notices by giving notice of such change in
accordance with the foregoing procedures. Any notice not sent in accordance with
the foregoing, shall be deemed given on the date of actual receipt.
2.2 Expenses. Each party is responsible for its own expenses hereunder.
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No party may impose any costs or expenses on the other party other than those
explicitly set forth in this Agreement.
2.3 Counterparts. This Amendment may be executed in one or more
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counterparts, all of which taken together constitute one instrument.
2.4 Waiver. The waiver by either party of any provision, nonperformance
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or any breach of any provision of this Amendment will not constitute a waiver of
any subsequent nonperformance or other breach of the same or any other
provision.
2.5 Severability. If any provision of this Amendment is held to be
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ineffective, unenforceable or illegal for any reason, such decision shall not
affect the validity or enforceability of any or all of the remaining portions
hereof.
2.6 Headings. The section headings of this Amendment are for reference
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only and shall not be of any force and effect.
2.7 Facsimile. This Amendment may be executed and delivered by
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facsimile, which the parties agree shall have the same legal effect as if the
parties had delivered copies bearing original signatures.
2.8 Governing Law. This Amendment will be governed by the internal laws
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of the State of California without giving effect to any principles of conflicts
of laws.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be signed on its behalf by its duly authorized representative as of
the date first written above.
JAFRA COSMETICS INTERNATIONAL, INC.
By: /s/ Brian Chase
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Name: Brian Chase
Title: Vice President, Manufacturing
By: /s/ Michael DiGregorio
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Name: Michael DiGregorio
Title: Chief Financial Officer
UNIVERSAL PACKAGING SYSTEMS, INC.
By: /s/ Julio Liberal
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Name: Julio Liberal
Title: President
By: /s/ Mark Tomberlin
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Name: Mark Tomberlin
Title: Chief Financial Officer