EXHIBIT 4.19
FORM OF NEW NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTIONS 312 AND 313 OF THE INDENTURE.
JAFRA COSMETICS INTERNATIONAL, INC.
and
DISTRIBUIDORA COMERCIAL JAFRA, S.A. de C.V.
10 -3/4% Senior Subordinated Notes Due 2011
CUSIP No. [o]
No. __________ $ ________
Each of Jafra Cosmetics International, Inc., a corporation duly
organized and existing under the laws of the State of Delaware ("Jafra US"), and
Distribuidora Comercial Jafra, S.A. de C.V., a corporation organized under the
laws of Mexico ("Jafra Distribution (Mexico)", and together with Jafra US, the
"Issuers", such term to include any Successor of either (as such term is defined
in the Indenture referred to hereinafter), for value received, hereby severally,
but not jointly, promises to pay to ________________________, or registered
assigns, its several share in the proportion set forth below (with respect to
each Issuer, such relative proportion, a "Several Share") of the aggregate
principal sum of $________________ ([ ] United States Dollars) (or such lesser
or greater amount as shall be outstanding hereunder from time to time in
accordance with Sections 312
and 313 of the Indenture referred to on the reverse hereof) (the "Principal
Amount") on May 15, 2011; provided that Jafra US shall be severally liable for
only 40% of the Principal Amount (the "Jafra US Portion") and Jafra Distribution
(Mexico) shall be severally liable for only 60% of the Principal Amount (the
"Jafra Distribution (Mexico) Portion", and each of the Jafra US Portion and the
Jafra Distribution (Mexico) Portion, a "Portion"). Each Issuer hereby severally,
but not jointly, promises to pay interest on its respective Portion,
semi-annually on May 15 and November 15 in each year, commencing November 15,
2003, at the rate of 10 -3/4% per annum, except that interest accrued on this
Note for periods prior to the date on which the Initial Note was surrendered in
exchange for this Note will accrue at the rate or rates borne by such Initial
Note from time to time during such periods, until the Principal Amount is paid
or made available for payment. Interest on the Notes shall be computed on the
basis of a 360-day year of twelve 30-day months. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Note (or
one or more Predecessor Notes) is registered at the close of business on the
Regular Record Date for such interest, which shall be the May 1 or November 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Notes not more than 15 days nor less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Note will be made at the office or agency of the Issuers maintained for that
purpose in The Borough of Manhattan, The City of New York; provided, however,
that at the option of the Issuers payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Note Register.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Note shall
not be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
2
IN WITNESS WHEREOF, each of the Issuers has caused this instrument to be
duly executed.
JAFRA COSMETICS INTERNATIONAL, INC.
By ____________________________________________
Name:
Title:
DISTRIBUIDORA COMERCIAL JAFRA, S.A. de C.V.
By ____________________________________________
Name:
Title:
3
This is one of the Notes referred to in the within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION
As Trustee
By________________________________________
Authorized Officer
Dated:
4
(REVERSE OF NOTE)
This Note is one of the duly authorized issue of 10-3/4% Senior
Subordinated Notes Due 2011 of the Issuers (herein called the "Notes"), issued
under an Indenture, dated as of May 20, 2003 (herein called the "Indenture,"
which term shall have the meanings assigned to it in such instrument), among the
Issuers, Jafra Worldwide Holdings (Lux) S.ar.l. and the other Note Guarantors
from time to time parties thereto, as Note Guarantors, and U.S. Bank National
Association, as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Issuers, any other obligor upon this
Note, the Trustee and the Holders of the Notes and of the terms upon which the
Notes are, and are to be, authenticated and delivered. The terms of the Notes
include those stated in the Indenture and those made a part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended, as in effect from time
to time (the "TIA"). The Notes are subject to all such terms, and Holders are
referred to the Indenture and the TIA for a statement of such terms. Additional
Notes may be issued under the Indenture which may vote as a class with the Notes
and otherwise be treated as Notes for purposes of the Indenture.
All terms used in this Note that are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
This Note is entitled to the benefits of the certain senior subordinated
Note Guarantees of the Note Guarantors and may hereafter be entitled to certain
other senior subordinated Note Guarantees made for the benefit of the Holders.
Reference is made to Article Thirteen of the Indenture and to the Note
Guarantees for terms relating to such Note Guarantees, including the release,
termination and discharge thereof. Neither the Issuers nor any Note Guarantor
shall be required to make any notation on this Note to reflect any Note
Guarantee or any such release, termination or discharge.
The Notes are subordinated to Senior Indebtedness of the Issuers, as
defined in the Indenture, and the Note Guarantees are subordinated to Senior
Indebtedness of the relevant Note Guarantor, as defined in the Indenture. To the
extent provided in the Indenture, Senior Indebtedness must be paid before the
Notes or the relevant Note Guarantee may be paid. The Issuers and the Note
Guarantors agree, and each Noteholder by accepting a Note agrees, to the
subordination provisions contained in the Indenture and authorizes the Trustee
to give it effect and appoints the Trustee as attorney-in-fact for such
purposes.
The Notes will be redeemable, at the Issuers' option, in whole or in part,
and from time to time on and after May 15, 2007 and prior to maturity; provided,
however, that any such optional redemption may only be effected concurrently by
both of the Issuers on a pro rata basis as between their respective Portions,
based on the relative proportions of the Jafra US Portion and the Jafra
Distribution (Mexico) Portion. Such redemption may be made upon notice mailed by
first-class mail to each Holder's registered address in accordance with the
Indenture. Any such redemption and notice may, in the Issuers' discretion, be
subject to the satisfaction of one or more conditions precedent. The Notes will
be so redeemable at the following Redemption Prices (expressed as a percentage
of principal amount), plus accrued interest, if any, to the relevant Redemption
Date (subject to the right of Holders of record on
5
the relevant Regular Record Date to receive interest due on the relevant
Interest Payment Date), if redeemed during the 12-month period commencing on May
15 of the years set forth below:
REDEMPTION
PERIOD PRICE
------ -----
2007.................................................... 105.375%
2008.................................................... 102.688%
2009 and thereafter..................................... 100.000%
In addition, at any time and from time to time prior to May 15, 2006, the
Issuers at their option may concurrently redeem the Notes, on a pro rata basis
as between their respective Portions (based on the relative proportions of the
Jafra US Portion and the Jafra Distribution (Mexico) Portion), in an aggregate
principal amount equal to up to 35% of the original aggregate principal amount
of the Notes (including the principal amount of any Additional Notes), with
funds in an aggregate amount not exceeding the aggregate cash proceeds of one or
more Equity Offerings, at a Redemption Price (expressed as a percentage of
principal amount thereof) of 110.750% plus accrued interest, if any, to the
Redemption Date (subject to the right of Holders of record on the relevant
Record Date to receive interest due on the relevant Interest Payment Date);
provided, however, that an aggregate principal amount of the Notes equal to at
least 65% of the original aggregate principal amount of the Notes (including the
principal amount of any Additional Notes) must remain outstanding after each
such redemption. The Issuers may make such redemption upon notice mailed by
first-class mail to each Holder's registered address in accordance with the
Indenture (but in no event more than 180 days after the completion of the
related Equity Offering). Any such notice may be given prior to the completion
of the related Equity Offering, and any such redemption or notice may, at the
Issuers' discretion, be subject to the satisfaction of one or more conditions
precedent, including the completion of the related Equity Offering.
The Jafra Distribution (Mexico) Portion of the Notes may be redeemed, at
the option of Jafra Distribution (Mexico), at any time as a whole but not in
part, on not less than 30 nor more than 60 days' notice in accordance with the
Indenture at a Redemption Price equal to 100% of the principal amount thereof,
plus accrued and unpaid interest (if any) to the date of redemption (subject to
the right of Holders of record on the relevant Record Date to receive interest
due on the relevant Interest Payment Date), in the event Jafra Distribution
(Mexico), any successor to Jafra Distribution (Mexico) or any current or future
Note Guarantor of such Jafra Distribution (Mexico) Portion has become or would
become obligated to pay, on the next date on which any amount would be payable
with respect to the Notes, and such obligation cannot be avoided by such
Person's taking reasonable measures available to it, any Additional Amounts in
excess of Additional Amounts that Jafra Distribution (Mexico), such successor or
such Note Guarantor would be required to pay if payments by Jafra Distribution
(Mexico), such successor or such Note Guarantor were subject to a 4.9% Mexican
6
withholding tax as a result of a change in or an amendment to applicable
treaties or laws (including any regulations promulgated thereunder) of Mexico
(or any political subdivision or taxing authority thereof or therein), or any
change in or amendment to any official position regarding the application or
interpretation of such treaties, laws or regulations, which change or amendment
is announced or becomes effective on or after May 2, 2003 ("Excessive Additional
Amounts"); provided, however, that no such notice of redemption may be given
earlier than 60 days prior to the earliest date on which Jafra Distribution
(Mexico), such successor or such Note Guarantor would, but for such redemption,
be obligated to pay such Excessive Additional Amounts. Prior to the publication
of any notice of redemption pursuant to this provision, Jafra Distribution
(Mexico), any successor to Jafra Distribution (Mexico) or any Note Guarantor
will deliver to the Trustee (a) a certificate duly signed by an officer of Jafra
Distribution (Mexico), such successor or such Note Guarantor stating that Jafra
Distribution (Mexico), such successor or such Note Guarantor is entitled to
effect such redemption and setting forth a statement of facts showing that the
conditions precedent to the right of Jafra Distribution (Mexico), such successor
or such Note Guarantor so to redeem have occurred and (b) a written opinion of
Mexican legal counsel reasonably acceptable to the Trustee to the effect that
Jafra Distribution (Mexico), such successor or such Note Guarantor has or will
become obligated to pay such Excessive Additional Amounts as a result of an
amendment or change referred to in this provision.
In the event of any partial redemption (other than a redemption described
in the immediately preceding paragraph), the several obligation of each Issuer
for each Note that remains outstanding shall continue in the same proportion as
the relative proportions of the Jafra US Portion and the Jafra Distribution
(Mexico) Portion, respectively.
The Indenture provides that, upon the occurrence of a Change of Control,
each Holder will have the right to require that the Issuers repurchase, on a
several basis in proportion to each Issuer's Several Share in respect of the
Notes, all or any part of such Holder's Notes at a repurchase price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest, if any, to the date of such repurchase; provided, however, that the
Issuers shall not be obligated to purchase Notes in the event they have
exercised their right to redeem all the Notes as described above.
The Notes will not be entitled to the benefit of a sinking fund.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Note or certain restrictive covenants and certain Events of
Default with respect to this Note, in each case upon compliance with certain
conditions set forth in the Indenture.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuers and the rights of the Holders of the Notes to be affected under the
Indenture at any time by the Issuers and the Trustee with the consent of the
Holders of at least a majority in principal amount of the Notes
7
at the time Outstanding to be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the Notes
at the time Outstanding, on behalf of the Holders of all Notes, to waive
compliance by the Issuers with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, the Holder
of this Note shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in principal amount of the Notes at the
time Outstanding shall have made written request to the Trustee to pursue such
remedy in respect of such Event of Default as Trustee and offered the Trustee
reasonable security or indemnity, and the Trustee shall not have received from
the Holders of a majority in principal amount of Notes at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
security or indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Note for the enforcement of any payment of principal hereof
or any premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the several obligation of each Issuer, which
is absolute and unconditional, to pay its Several Share of the principal of and
any premium and interest on this Note at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Issuers in a Place of Payment, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Issuers and the Note
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000.00 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration, transfer or
exchange, but the Issuers may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
8
Prior to due presentment of this Note for registration or transfer, the
Company, the Issuers, any other obligor in respect of this Note, the Trustee and
any agent of the Company, the Issuers, such other obligor or the Trustee may
treat the Person in whose name this Note is registered as the owner hereof for
all purposes, whether or not this Note be overdue, and none of the Company, the
Issuers, or any other obligor upon this Note, the Trustee nor any such agent
shall be affected by notice to the contrary.
No director, officer, employee, incorporator or stockholder of the
Company, the Issuers, any Note Guarantor or any Subsidiary of any thereof shall
have any liability for any obligation of the Company, the Issuers or any Note
Guarantor under the Indenture, the Notes or any Note Guarantee, or for any claim
based on, in respect of, or by reason of, any such obligation or its creation.
Each Holder, by accepting this Note, hereby waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes.
THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE SAME ARE NOT
MANDATORILY APPLICABLE BY STATUTE AND THE APPLICATION OF THE LAW OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY. THE TRUSTEE, THE ISSUERS, ANY OTHER
OBLIGOR IN RESPECT OF THE NOTES AND (BY THEIR ACCEPTANCE OF THE NOTES) THE
HOLDERS, AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR
STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE, THE NOTES AND
THE NOTE GUARANTEES.
9
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned holder hereby sell(s) assign(s) and
transfer(s) unto
- --------------------------------------------------------------------------------
Insert Taxpayer Identification No.
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including zip code of assignee)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
- --------------------------------------------------------------------------------
attorney to transfer such Note on the books of the Issuers with full power of
substitution in the premises.
Date:
---------------------------------------------------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within-mentioned instrument in every particular,
without alteration or any change whatsoever.
Signature Guarantee:
----------------------------------------------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
10
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Issuers pursuant to Section
411 or 415 of the Indenture, check the box: [ ].
If you wish to have a portion of this Note purchased by the Issuers
pursuant to Section 411 or 415 of the Indenture, state the amount (in principal
amount) below:
$
---------------------------------
Date:
------------------------------
Your Signature:
----------------------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
-------------------------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
11
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Date of Amount of decreases in Amount of increases Principal amount Signature
Exchange Principal in Principal of this Global Note of authorized officer
Amount of this Amount of this Global following such decreases of Trustee or Notes
Global Note Note or increases Custodian
12