Exhibit 4.12
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[KONINKLIJKE NOTARIELE BEROEPSORGANISATIE GRAPHIC]
JJL/5101360/40013829
(EXECUTION COPY)
DEED OF PLEDGE ON REGISTERED SHARES IN CDRJ EUROPE HOLDING COMPANY B.V.
This twentieth day of May, two thousand three, there appeared before me, Joyce
Johanna Cornelia Aurelia Leemrijse, hereinafter referred to as: "civil law
notary", as substitute of Rudolf van Bork, civil law notary officiating at
Amsterdam, the Netherlands:_____________________________________________________
1. Catharina Anna Kramer, with office address at Fred. Roeskestraat 100,
1076 ED Amsterdam, the Netherlands, born in Purmerend, the
Netherlands, on the sixteenth day of December, nineteen hundred
sixty-six, in this matter acting as authorized representative
of:___________________________________________________________________
a. JAFRA COSMETICS INTERNATIONAL, INC., a corporation organized
under the laws of the State of Delaware, United States of
America, having its registered office and its office address
at c/o Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801, United States of America,
hereinafter: the "PLEDGOR";_________________________________
b. CDRJ EUROPE HOLDING COMPANY B.V., a private company with
limited liability (besloten vennootschap met beperkte
aansprakelijkheid) incorporated organized under the laws of
the Netherlands, having its statutory seat in Amsterdam and
its office address at Kempenlandstraat 11 G, 5262 GK Vught,
hereinafter: the "COMPANY";_________________________________
2. Kethy Renske van Putten, with office address at Fred. Roeskestraat
100, 1076 ED Amsterdam, the Netherlands, born in Groningen, the
Netherlands, on the twelfth day of September, nineteen hundred and
seventy-three, as authorized representative of:_______________________
CREDIT SUISSE FIRST BOSTON, a banking organization organized under the
laws of Switzerland, having its registered office and office address
at Uetlibergstrasse 231, CH 8070 Zurich, Switzerland, acting through
its Cayman Islands branch with registered office and office address at
c/o CIBC Bank and Trust Company (Cayman) Limited, 54 Edward Street,
George Town, Grand Cayman Cayman Islands, B.W.I., and for the purposes
of this transaction choosing office at Eleven Madison Avenue, New
York, New York 10010, the United States, hereinafter: the "PLEDGEE".
______________________________________________________________________
POWERS OF ATTORNEY:________________________________________________________
The authorization of the persons appearing is evidenced by three (3)
written Powers of Attorney, one (1) of which is attached to a deed of
pledge, executed before me, civil law notary, earlier to date, and two (2)
of which are attached to
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this Deed (Annex 1). Sufficient proof of the existence of the Powers of
Attorney was presented to me, civil law notary.
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The persons appearing have declared:
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The Pledgor and the Pledgee have agreed as follows:
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WHEREAS:
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a. Pursuant to the Credit Agreement, as defined hereafter, the Pledgor
has assumed the obligation to provide security to the Pledgee for the
Secured Obligations, as defined hereafter, in the form of a right of
pledge on the Shares, as defined hereafter;
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b. By notarial deed of contribution and transfer of shares, executed
before a deputy of F.W. Oldenburg, civil tax notary officiating in
Amsterdam, on the thirtieth day of April, nineteen hundred and
ninety-eight, the Pledgor acquired the legal and beneficial title to
all issued and outstanding shares in the capital of the Company, such
deed also containing the acknowledgement of the above acquisition by
the Company;
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c. To secure the performance of the Secured Obligations, the Pledgor and
the Pledgee wish to hereby establish a first priority right of pledge
on the Shares, as defined hereafter, under the following terms.
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DEFINITIONS.
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ARTICLE 1.
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Unless otherwise defined herein, or the context requires otherwise,
terms used in this Deed, including its preamble and recitals, shall
have the meaning as defined in the Credit Agreement. In addition, the
following terms used in this Deed, including its preamble and
recitals, shall have the following meanings:
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a. the "BORROWER": the Pledgor;
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b. the "CREDIT AGREEMENT": the credit agreement, dated as of the
twentieth day of May, two thousand three (May 20, 2003) (as amended,
supplemented, amended and restated or otherwise modified from time to
time), among the Borrower, Distribuidora Comercial Jafra S.A. de
C.V., Jafra Worldwide Holdings (Lux) S.a r.l., the Pledgee and Merrill
Lynch, Pierce, Fenner & Smith, Incorporated as Lead Arrangers, the
Pledgee as Administrative Agent, Merrill Lynch, Pierce, Fenner &
Smith, Incorporated as Syndication Agent, and the other lenders party
thereto;
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c. an "EVENT OF DEFAULT": each Event of Default as defined in article 7
of the Credit Agreement, as well as, insofar as not included in that
definition, each Event of Statutory Default;
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d. an "EVENT OF STATUTORY DEFAULT": each event in which the Pledgor is
in default ("verzuim"), as defined in Section 6:81 of the Netherlands
Civil Code, of performing one or more of the Secured Obligations;
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e. the "PARALLEL DEBT": shall mean the JAFRA Cosmetics International
Inc. Parallel Debt as defined in article 9.21 of the Credit
Agreement;
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f. the "RIGHT OF PLEDGE": the first priority right of pledge on the
Shares established in this Deed;
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g. the "SECURED OBLIGATIONS" shall mean: any and all undertakings
and obligations at any time owing by the Borrower to the Pledgee
under the Parallel Debt and the obligations and liabilities
resulting from the non-performance thereof, to the extent such
undertakings, obligations and liabilities consist of monetary
payment obligations (verbintenissen tot betaling van een
geldsom);_______________________________________________________
h. the "SHARES"; twenty-four (24) ordinary shares, having a par
value of one thousand Dutch guilders (NLG 1,000.00) or (read by
virtue of law and in accordance with Section 2:178c of the Dutch
Civil Code) four hundred and fifty three Euro and seventy-eight
cents (EUR 453.78) each, numbered 1 up to and including 24, in
the share capital of the Company, constituting sixty per cent
(60%) of the entire issued and outstanding share capital of the
Company.________________________________________________________
PLEDGE OF SHARES.____________________________________________________
ARTICLE 2.___________________________________________________________
1. The Pledgor agrees to grant and hereby so grants to the Pledgee,
as security for the payment when due of the Secured Obligations,
a disclosed first-ranking right of pledge (een openbaar
pandrecht, eerste in rang) on the Shares, which right of pledge
the Pledgee agrees to accept and hereby so accepts, and the
Pledgor undertakes to pledge to the Pledgee under the same terms
and conditions as set forth in this deed sixty per cent (60%) of
any future shares and the rights related thereto as soon as such
future shares shall be capable of being so pledged as long as any
of the Secured Obligations are outstanding._____________________
2. The Pledgor shall, if and when required by the Pledgee, execute
such further encumbrances and assurances, and do all such acts
and things as the Pledgee may reasonably require over or in
relation to all or any of the Shares to maintain, perfect or
protect the security rights created by this Deed over the Shares
and future shares or any part thereof, such that this Deed will
continue to constitute a first priority right of pledge over
sixty per cent (60%) the Shares and future shares, until payment
in full of the Secured Obligations._____________________________
VOTING RIGHTS._______________________________________________________
ARTICLE 3.___________________________________________________________
During the term of the Right of Pledge, the voting rights attaching to
the Shares shall accrue to the Pledgor.______________________________
AUTHORITY TO COLLECT.________________________________________________
ARTICLE 4.___________________________________________________________
1. The authority to collect dividends, distributions from reserves,
repayments of capital and all other distributions and payments in
any form, which, at any time, during the term of the Right of
Pledge, become payable on any one or more of the Shares, shall
accrue to the Pledgee, as provided for in Section 3:246 of the
Dutch Civil Code._______________________________________________
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2. In derogation of the provisions of paragraph 1, the Pledgee hereby grants
approval to the Pledgor to collect dividends.
3. The Pledgee may terminate the authorization mentioned in paragraph 2 upon
occurrence of an Event of Statutory Default only. Termination of the
authorization is made by written statement to that effect, by the Pledgee to
the Pledgor. The Pledgee shall inform the Company of the termination in
writing.
FURTHER PLEDGES.
ARTICLE 5.
1. Each time the Pledgor, after execution of this deed, acquires pledgeable
(depositary receipts for) shares and rights to acquire (depositary receipts
for) shares in the capital of the Company, the Pledgor shall, on the
occasion thereof and otherwise immediately thereafter, establish a first
priority right of pledge on sixty per cent (60%) of such (depositary
receipts for) shares and rights in favor of the Pledgee, in so far as
possible under the same or similar terms and conditions as mentioned in
this deed.
2. The Pledgor warrants to the Pledgee that the Pledgor has not disposed in any
way of the (depositary receipts for) shares and rights referred to in
paragraph 1.
3. The Pledgor shall as much as possible provide that the (depositary receipts
for) shares and rights to acquire (depositary receipts for) shares in the
capital of the Company he acquires after execution of this deed shall be
pledgeable, and that the transferability thereof shall not be more
cumbersome than the transferability of the Shares.
EXERCISE OF THE RIGHT OF PLEDGE.
ARTICLE 6.
1. After a court of law, on the demand of the Pledgee, has established that an
Event of Statutory Default has occurred, the Pledgee shall be authorised to
sell the Shares or part thereof, in accordance with Section 3:248 of the
Dutch Civil Code, without prejudice to the provision of Section 3:251 of
the Dutch Civil Code, in order to recover the proceeds thereof.
2. The blocking clause contained in the articles of association of the Company
shall apply to the transfer of the Shares by the Pledgee, it being
understood that the Pledgee shall exercise all of the Pledgor's rights
relevant to the alienation and transfer of the Shares, and that the Pledgee
shall fulfill the Pledgor's obligations relevant thereto.
3. In the event the Pledgee levies execution of the Right of Pledge, the
Pledgee shall, following payment of the execution costs from the proceeds,
allocate the net proceeds to fulfill the Secured Obligations.
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FINAL PROVISIONS. --------------------------------------------------
ARTICLE 7. ---------------------------------------------------------
1. The Right of Pledge, including all provisions of this deed,
shall be governed by the laws of the Netherlands. ------------
2. All disputes relating to the Right of Pledge shall be
submitted exclusively to the competent court of law in
Amsterdam, the Netherlands, it being understood that the
Pledgee shall be authorised to initiate a claim elsewhere
also. --------------------------------------------------------
3. The Pledgee shall be entitled to terminate the Right of Pledge
in whole or in part. Termination shall be effectuated by a
written notification to that effect by the Pledgee to the
Pledgor. The Pledgee shall inform the Company of the
termination in writing. --------------------------------------
FINALLY, THE COMPANY HAS DECLARED: ---------------------------------
a. that it acknowledges the aforementioned pledge; --------------
b. that it has been informed of the provisions under which the
Right of Pledge is established, and fully cooperates with the
implementation thereof; --------------------------------------
c. it shall register in the Company's shareholders' register that
the Shares are encumbered with a first priority right of
pledge in favor of the Pledgee, stating whether the voting
rights attaching to the Shares accrue to the Pledgor or the
Pledgee, and to whom, the Pledgor or the Pledgee, the rights
accrue which the law attributes to holders of depositary
receipts of shares in the capital of a company which are
issued with its co-operation; --------------------------------
d. that all resolutions and approvals required from the Company
for establishing a first priority right of pledge on the
Shares by the Pledgor in favor of the Pledgee under the
provisions contained in this deed, have been adopted and
received respectively. ---------------------------------------
END. ---------------------------------------------------------------
The persons appearing are known to me, civil law notary. -----------
This deed was executed in Amsterdam on the date stated in the first
paragraph of this deed. The contents of the deed have been stated
and clarified to the persons appearing. The persons appearing have
declared not to wish the deed to be fully read out, to have noted
the contents of the deed timely before its execution and to agree
with the contents. -------------------------------------------------
After limited reading, this deed was signed first by the persons
appearing and thereafter by me, civil law notary, at five hours and
forty minutes p.m. -------------------------------------------------
(W.s.: C.A. Kramer; K.R. van Putten; J.J.C.A. Leemrijse)
FOR TRUE COPY
Amsterdam; June 3, 2003
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