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EXHIBIT 10.23
MANAGEMENT STOCK SUBSCRIPTION AGREEMENT
MANAGEMENT STOCK SUBSCRIPTION AGREEMENT, dated as of ________,
2001, between CDRJ Investments (Lux), S.A., a Luxembourg societe anonyme
("Holding"), and the Purchaser whose name appears on the signature page hereof
(the "Purchaser").
W I T N E S S E T H :
WHEREAS, the Board of Directors (the "Board") of Jafra Cosmetics
International, Inc., a Delaware corporation (formerly known as CDRJ Acquisition
Corporation) and an indirect wholly-owned Subsidiary of Holding ("JCI") has, in
consultation with the Board of Directors of Holding (the "Holding Board"),
adopted the Amended and Restated Jafra Cosmetics International Stock Incentive
Plan (as the same may be amended from time to time, the "Stock Incentive Plan");
WHEREAS, JCI (the "Employer"), and the Purchaser have entered
into an Employment Agreement, dated as of _________ (as the same may be amended
from time to time, the "Employment Agreement");
WHEREAS, the Board, in consultation with the Holding Board, has
determined that it is in the best interest of Holding and its shareholders to
sell to the Purchaser the shares of the Class A voting shares, par value $2.00
per share, of Holding (the "Common Stock") herein described;
WHEREAS, pursuant to the Stock Incentive Plan, Holding and JCI
have approved the issuance and sale of shares of Common Stock to the Purchaser;
WHEREAS, the terms of the offering of the shares of Common Stock
to the Purchaser (the "Offering") are set forth in a Confidential Offering
Memorandum, dated ________, 2001 (the "Offering Memorandum"), a copy of which
has been furnished to the Purchaser;
WHEREAS, the Purchaser desires to subscribe for and purchase from
Holding the aggregate number of shares of Common Stock set forth on the
signature page hereof (each a "Share" and, collectively, the "Shares"), at a
purchase price of $_____ per share;
WHEREAS, Holding desires to sell the Shares to the Purchaser on
the terms and subject to the conditions set forth herein.
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NOW, THEREFORE, to implement the foregoing and in consideration
of the mutual promises, covenants and agreements contained herein, the parties
hereto hereby agree as follows:
1. Purchase and Sale of Common Stock.
(a) Purchase of Common Stock. Subject to all of the terms and
conditions of this Agreement, the Purchaser hereby subscribes for and shall
purchase, and Holding shall sell to the Purchaser, the Shares, at a purchase
price of $______ per Share, at the Closing provided for in Section 2(a) hereof.
Notwithstanding anything in this Agreement to the contrary, Holding shall have
no obligation to sell any shares of Common Stock (including the Shares) to (x)
any person who will not be an employee of Holding or its Subsidiary immediately
following the Closing at which such shares of Common Stock are to be sold or (y)
any person who is a resident of a jurisdiction in which the sale of Common Stock
to such person would constitute a violation of the securities, "blue sky" or
other laws of such jurisdiction.
(b) Consideration. Subject to all of the terms and conditions of
this Agreement, the Purchaser shall deliver to Holding at the Closing referred
to in Section 2(a) hereof, immediately available funds in an amount equal to the
aggregate purchase price for the Shares to be purchased at such Closing set
forth on the signature page hereof.
2. Closing.
(a) Time and Place. Except as otherwise mutually agreed by
Holding and the Purchaser, the closing of the purchase and sale of the Shares
pursuant to this Agreement shall be held at the offices of Jafra Cosmetics
International, Inc., 2451 Townsgate Road, Westlake Village, California at 10:00
a.m. (California time) on or about [ ], 2001 (the "Closing")
(b) Delivery by the Purchaser. At the Closing, the Purchaser
shall deliver to Holding the consideration referred to in Section 1(b) hereof.
(c) Delivery by Holding. At the Closing, Holding shall deliver to
the Purchaser (i) a receipt for the consideration received from the Purchaser
and (ii) a stock certificate or an undertaking by Holding to obtain the issuance
of a stock certificate registered in the Purchaser's name and representing the
Shares following the completion
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of the actions to be taken under Section 2(d), which certificate shall bear the
legends set forth in Section 3(b).
(d) Actions Under Luxembourg Law. Holding shall cause its duly
authorized representatives to record the capital increase represented by the
purchase of the Shares by the Purchaser in accordance with Luxembourg law and
enter the issuance of Purchaser's Shares in the share register of Holding as of
the date of the Closing.
3. Purchaser's Representations, Warranties and Covenants.
(a) Investment Intention. The Purchaser represents and warrants
that the Purchaser is acquiring the Shares solely for the Purchaser's own
account for investment and not with a view to or for sale in connection with any
distribution thereof. The Purchaser agrees that the Purchaser will not, directly
or indirectly, offer, transfer, sell, pledge, hypothecate or otherwise dispose
of any of the Shares (or solicit any offers to buy, purchase or otherwise
acquire or take a pledge of any Shares), except in compliance with the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations of the Securities and Exchange Commission (the "Commission")
thereunder, and in compliance with applicable state securities or "blue sky"
laws and foreign securities laws, if any. The Purchaser further understands,
acknowledges and agrees that none of the Shares may be transferred, sold,
pledged, hypothecated or otherwise disposed of (i) unless the provisions of
Sections 4 through 8 hereof, inclusive, shall have been complied with or have
expired, (ii) unless (A) such disposition is pursuant to an effective
registration statement under the Securities Act, (B) the Purchaser shall have
delivered to Holding an opinion of counsel, which opinion and counsel shall be
reasonably satisfactory to Holding, to the effect that such disposition is
exempt from the provisions of Section 5 of the Securities Act or (C) a no-action
letter from the Commission, reasonably satisfactory to Holding, shall have been
obtained with respect to such disposition and (iii) unless such disposition is
pursuant to registration under any applicable state or foreign securities laws
or an exemption therefrom.
(b) Legends. The Purchaser acknowledges that the certificate or
certificates representing the Shares shall bear the following legends:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF A MANAGEMENT STOCK SUBSCRIPTION AGREEMENT, DATED AS OF
___________, 2001, AND NEITHER THIS CERTIFICATE NOR THE SHARES
REPRESENTED BY IT ARE ASSIGNABLE OR OTHERWISE TRANSFERABLE EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SUCH MANAGEMENT
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STOCK SUBSCRIPTION AGREEMENT, AS THE SAME MAY BE AMENDED FROM TIME TO
TIME, A COPY OF THE CURRENT FORM OF WHICH IS ON FILE WITH THE SECRETARY
OF THE ADVISORY COMMITTEE OF HOLDING. THE SHARES REPRESENTED BY THIS
CERTIFICATE ARE ENTITLED TO THE BENEFITS OF AND ARE BOUND BY THE
OBLIGATIONS SET FORTH IN A REGISTRATION AND PARTICIPATION AGREEMENT,
DATED AS OF APRIL 30, 1998, AMONG HOLDING AND CERTAIN STOCKHOLDERS OF
HOLDING, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, A COPY OF THE
CURRENT FORM OF WHICH IS ON FILE WITH THE SECRETARY OF THE ADVISORY
COMMITTEE OF HOLDING."
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE OR NON-U.S. SECURITIES
LAWS AND MAY NOT BE TRANSFERRED, SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNLESS (i) (A) SUCH DISPOSITION IS PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, (B) THE HOLDER HEREOF SHALL HAVE DELIVERED TO HOLDING AN
OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL BE REASONABLY
SATISFACTORY TO HOLDING, TO THE EFFECT THAT SUCH DISPOSITION IS EXEMPT
FROM THE PROVISIONS OF SECTION 5 OF SUCH ACT OR (C) A NO-ACTION LETTER
FROM THE SECURITIES AND EXCHANGE COMMISSION, REASONABLY SATISFACTORY TO
COUNSEL FOR HOLDING, SHALL HAVE BEEN OBTAINED WITH RESPECT TO SUCH
DISPOSITION AND (ii) SUCH DISPOSITION IS PURSUANT TO REGISTRATION UNDER
ANY APPLICABLE STATE AND NON-U.S. SECURITIES LAWS OR AN EXEMPTION
THEREFROM. IF THE PURCHASER IS A CITIZEN OR RESIDENT OF ANY JURISDICTION
OTHER THAN THE UNITED STATES, OR THE PURCHASER DESIRES TO EFFECT ANY
TRANSFER IN ANY SUCH JURISDICTION, THEN, IN ADDITION TO THE FOREGOING,
COUNSEL FOR THE PURCHASER (WHICH COUNSEL SHALL BE REASONABLY
SATISFACTORY TO HOLDING) SHALL HAVE FURNISHED HOLDING WITH AN OPINION OR
OTHER ADVICE REASONABLY SATISFACTORY TO HOLDING TO THE EFFECT THAT SUCH
TRANSFER WILL COMPLY WITH THE SECURITIES LAWS OF SUCH JURISDICTION."
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(c) Securities Law Matters. The Purchaser acknowledges receipt of
advice from Holding that (i) the offer and sale of the Shares hereby have not
been registered under the Securities Act or any state or foreign securities or
"blue sky" laws, (ii) it is not anticipated that there will be any public market
for the Shares, (iii) the Shares must be held indefinitely and the Purchaser
must continue to bear the economic risk of the investment in the Shares unless
there is a public market for the Shares and, to the extent required under the
Securities Act, the Shares are registered for resale under the Securities Act
and such state laws or an exemption from registration is available, (iv) Rule
144 promulgated under the Securities Act ("Rule 144") is not presently available
with respect to sales of any securities of Holding, and Holding has made no
covenant to make Rule 144 available, (v) when and if the Shares may be disposed
of without registration in reliance upon Rule 144, such disposition by an
affiliate of Holding, within the meaning of Rule 405, can be made only in
limited amounts in accordance with the terms and conditions of Rule 144, (vi)
Holding does not plan to file reports with the Commission or make public
information concerning Holding available unless required to do so by law or the
terms of its Financing Agreements (as defined below), (vii) if the exemption
afforded by Rule 144 is not available, sales of the Shares may be difficult to
effect because of the absence of public information concerning Holding, (viii) a
restrictive legend in the form heretofore set forth shall be placed on the
certificates representing the Shares and (ix) a notation shall be made in the
appropriate records of Holding indicating that the Shares are subject to
restrictions on transfer set forth in this Agreement and, if Holding should in
the future engage the services of a stock transfer agent, appropriate
stop-transfer restrictions will be issued to such transfer agent with respect to
the Shares.
(d) Compliance with Rule 144. If any of the Shares are to be
disposed of in accordance with Rule 144, the Purchaser shall transmit to Holding
an executed copy of Form 144 (if required by Rule 144) no later than the time
such form is required to be transmitted to the Commission for filing and such
other documentation as Holding may reasonably require to assure compliance with
Rule 144 in connection with such disposition.
(e) Ability to Bear Risk. The Purchaser represents and warrants
that (i) the financial situation of the Purchaser is such that the Purchaser can
afford to bear the economic risk of holding the Shares for an indefinite period
and (ii) the Purchaser can afford to suffer the complete loss of the Purchaser's
investment in the Shares.
(f) Questionnaire. The Purchaser agrees to furnish such documents
and to comply with such reasonable requests of Holding as may be necessary to
substantiate the Purchaser's status as a qualifying investor in connection with
this private
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offering of Shares of Common Stock to the Purchaser. The Purchaser represents
and warrants that all information contained in such documents and any other
written materials concerning the status of the Purchaser furnished by the
Purchaser to Holding in connection with such request will be true, complete and
correct in all material respects.
(g) Access to Information. The Purchaser represents and warrants
that (i) the Purchaser has carefully reviewed the Offering Memorandum and the
other materials furnished to the Purchaser in connection with the transaction
contemplated hereby, (ii) the Purchaser has been granted the opportunity to ask
questions of, and receive answers from, representatives of Holding concerning
the terms and conditions of the purchase of the Shares and to obtain any
additional information that the Purchaser deems necessary to verify the accuracy
of the information contained in such materials and (iii) the Purchaser's
knowledge and experience in financial and business matters is such that the
Purchaser is capable of evaluating the risks of an investment in the Shares.
(h) Registration and Participation Agreement. The Purchaser
acknowledges and agrees that the Purchaser shall be entitled to the rights and
subject to the obligations created under the Registration and Participation
Agreement, dated as of April 30, 1998, among Holding and certain other
shareholders of Holding (as the same may be amended from time to time, the
"Registration and Participation Agreement"), and the Shares shall be deemed to
be "registrable securities," as defined in the Registration and Participation
Agreement, in each case, to the extend provided therein.
(i) Restrictions on Sale upon Public Offering. The Purchaser
acknowledges and agrees that, in the event that Holding files a registration
statement under the Securities Act with respect to an underwritten public
offering of any shares of its capital stock, the Purchaser will not effect any
public sale or distribution of any shares of Common Stock (other than as part of
such underwritten public offering), including but not limited to, pursuant to
Rule 144 or Rule 144A under the Securities Act, during the 20 days prior to and
the 180 days after the effective date of such registration statement. The
Purchaser further understands and acknowledges that any sale, transfer or other
disposition of the Shares by him following any underwritten public offering of
the Common Stock will be subject to compliance with, and may be limited under,
the federal securities laws and/or state "blue sky" or non-U.S. securities laws.
(j) Section 83(b) Election. The Purchaser agrees that, within 20
days after a Closing, the Purchaser shall give notice to Holding indicating
whether the Purchaser has made or intends to make an election pursuant to
section 83(b) of the Internal Revenue Code of 1986, as amended with respect to
the Shares purchased at such Closing. The Purchaser further acknowledges and
agrees that, in all circumstances, the
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Purchaser will be solely responsible for any and all tax liabilities payable by
the Purchaser in connection with the Purchaser's purchase or receipt of the
Shares or, if the Purchaser is subject to United States federal income tax,
attributable to the Purchaser's making or failing to make such an election under
section 83(b) of the Code.
4. Restrictions on Disposition of Shares. Neither the Purchaser
nor any of the Purchaser's heirs or representatives shall sell, assign,
transfer, pledge or otherwise directly or indirectly dispose of or encumber any
of the Shares to or with any other person, firm, trust, association, corporation
or entity (including, without limitation, transfers to any other holder of
Holding's capital stock, dispositions by gift, by will, by a corporation as a
distribution in liquidation or by operation of law other than a transfer of
Shares upon the death of the Purchaser by operation of law to the estate of the
Purchaser or by will to the beneficiary named therein, provided that such estate
or beneficiary, whichever is applicable, shall be bound by all of the provisions
of this Agreement) except as provided in Sections 5 through 8 hereof, inclusive.
The restrictions contained in this Section 4 (x) shall terminate on the first
date sales of Common Stock are made to the public pursuant to an underwritten
public offering of the Common Stock led by one or more underwriters at least one
of which is an underwriter of nationally recognized standing ( a "Public
Offering") and (y) shall not apply to a sale as part of the Public Offering or
to a sale as part of a "qualifying sale" within the meaning of Section 4 of the
Registration and Participation Agreement.
5. Options of Holding and the CD&R Fund Upon Proposed
Disposition.
(a) Rights of First Refusal. If the Purchaser desires to accept
an offer (which must be in writing and for cash, be irrevocable by its terms for
at least 60 days and be a bona fide offer as determined in good faith by the
Holding Board) from any prospective purchaser to purchase all or any part of the
Shares at any time owned by the Purchaser, the Purchaser shall give notice in
writing to Holding and the Clayton, Dubilier & Rice Fund V Limited Partnership
(together with any successor investment vehicle managed by Clayton, Dubilier &
Rice, Inc., the "CD&R Fund") (i) designating the number of Shares proposed to be
sold (the "Offer Shares"), (ii) naming the prospective purchaser of such Shares
and (iii) specifying the price (the "Offer Price") at and terms (the "Offer
Terms") upon which the Purchaser desires to sell the same. During the 30-day
period following receipt of such notice by Holding and the CD&R Fund (the "First
Refusal Period"), Holding shall have the right to purchase from the Purchaser
the Offer Shares, at the Offer Price and on the Offer Terms. Holding hereby
undertakes to use reasonable efforts to act as promptly as practicable following
such notice to determine whether it shall elect to exercise such right. If
Holding fails to exercise its right to
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purchase the Offer Shares within the First Refusal Period, the CD&R Fund shall
have the right to purchase the Offer Shares, at the Offer Price and on the Offer
Terms, at any time during the period beginning on the earlier of (x) the end of
the First Refusal Period and (y) the date of receipt by the CD&R Fund of written
notice that Holding has elected not to exercise its right to purchase the Offer
Shares and ending 30 days thereafter (the "Second Refusal Period"). The rights
provided hereunder shall be exercised by irrevocable written notice to the
Purchaser given at any time during the applicable period. If such right to
purchase the Offer Shares is exercised, Holding or the CD&R Fund, as the case
may be, shall deliver to the Purchaser a certified or bank check for the Offer
Price, payable to the order of the Purchaser, against delivery of certificates
or other instruments representing the Offer Shares so purchased, appropriately
endorsed by the Purchaser. If such right shall not have been exercised prior to
the expiration of the Second Refusal Period, then at any time during the 30 days
following the expiration of the Second Refusal Period, the Purchaser may sell
the Offer Shares to (but only to) the intended purchaser named in the
Purchaser's notice to Holding and the CD&R Fund at the Offer Price and on the
Offer Terms specified in such notice, free of all restrictions or obligations
imposed by, and free of any rights or benefits set forth in this Agreement,
provided that such intended purchaser shall have agreed in writing, pursuant to
an instrument of assumption satisfactory in substance and form to Holding, to
make and be bound by the representations, warranties and covenants set forth in
Section 3 hereof, other than those set forth in Section 3 (f) (i), 3 (f) (iii)
and 3 (i) and other than references to Sections 4 through 8 of this Agreement
contained in Sections 3 (a) (i). The right of the Purchaser to sell the Offer
Shares set forth in this Section 5 (a), subject to the rights of first refusal
set forth in this Section 5 (a), shall be suspended during the Option Periods
referred to in Section 6 hereof, but the provisions of Section 6 shall not
otherwise restrict the ability of the Purchaser to sell the Offer Shares,
whether before or after such Option Periods, pursuant to the terms and subject
to the restrictions set forth in this Section 5 (a).
(b) Public Offering. In the event that a Public Offering has been
consummated, the Purchaser may sell his Shares without complying with Section 5
(a) and this Section 5 shall not apply to a sale to the underwriters as part of
the Public Offering or at any time thereafter.
6. Options Effective on Termination of Employment or Unforeseen
Personal Hardship of the Purchaser.
(a) Termination of Employment. If the Purchaser's active
employment with Holding or any Subsidiary thereof that employs the Purchaser is
terminated for any reason whatsoever, Holding shall have an option to purchase
all or a portion of the Shares then held by the Purchaser (or, if his or her
employment was terminated by his or her
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death, his or her estate) and shall have 60 days from the later of the date of
termination of Purchaser's employment or the date that is seven months after the
date of the Purchaser's acquisition of the Shares pursuant to this Agreement
(such date, the "Option Start Date" and, such 60-day period, the "First Option
Period") during which to give notice in writing to the Purchaser (or his estate)
of its election to exercise or not to exercise such option, in whole or in part;
provided that, if such Purchaser is terminated for Cause, the Option Start Date
shall be the date of termination of such Purchaser's employment. Holding hereby
undertakes to use reasonable efforts to act as promptly as practicable following
the Option Start Date to make such election. If Holding fails to give notice
that it intends to exercise such option within the First Option Period or
Holding gives notice that it does not intend to exercise such option or that it
intends to exercise such option with respect to only a portion of the Shares,
the CD&R Fund shall have an option to purchase all or a portion of the Shares
then held by the Purchaser (or his estate) that will not be repurchased by
Holding and shall have until the expiration of the earlier of (x) 60 days
following the end of the First Option Period or (y) 60 days from the date of
receipt by the CD&R Fund of written notice from Holding indicating whether it
will exercise its option to purchase any of the Shares (such 60-day period being
hereinafter referred to as the "Second Option Period"), to give notice in
writing to the Purchaser (or his estate) of the CD&R Fund's exercise of its
option to purchase all or a portion of the Shares that will not be repurchased
by Holding. If Holding and the CD&R Fund do not exercise their respective
options to purchase, collectively, all of the shares pursuant to this
subsection, (i) the Purchaser (or his estate) shall be entitled to retain any
Shares which will not be acquired by Holding or the CD&R Fund, subject to all of
the provisions of this Agreement (including without limitation Section 4) and
(ii) if the Purchaser's active employment with Holding and each of its
Subsidiaries that employs the Purchaser is terminated (A) by such employer or
employers without Cause, (B) by the Purchaser by Retirement at Normal Retirement
Age, (C) by reason of the Disability or death of the Purchaser or (D) by the
Purchaser for Good Reason, then on notice from the Purchaser (or his estate) in
writing and delivered to Holding within 30 days following the earlier of (i) the
last day of the Second Option Period and (ii) the date the CD&R Fund delivers
written notice to the Purchaser indicating whether the CD&R Fund will exercise
its option to purchase any of the Shares, Holding shall purchase all (but not
less than all) of the Shares then held by the Purchaser (or his estate). All
purchases pursuant to this Section 6 (a) by Holding or the CD&R Fund shall be
for a purchase price and in the manner prescribed by Section 7 hereof.
(b) Unforeseen Personal Hardship. In the event that the
Purchaser, while in the employment of Holding or one of its Subsidiaries,
experiences Unforeseen Personal Hardship, the Holding Board will carefully
consider any request by the Purchaser that Holding repurchase the Purchaser's
Shares at a price determined in
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accordance with Section 7 hereof, but Holding shall have no obligation to
repurchase such Shares. The Holding Board shall consider such request with
respect to Unforeseen Personal Hardship as soon as practicable after receipt by
Holding of a written request by the Purchaser, such request to include
sufficient details of the Purchaser's Unforeseen Personal Hardship to permit the
Holding Board to review the request and the circumstances in an informed manner.
(c) Certain Definitions. As used in this Agreement the following
terms shall have the following meanings:
(i) "Cause" shall have the meaning assigned to such term in the
Employment Agreement.
(ii) "Good Reason" shall have the meaning assigned to such term
in the Employment Agreement.
(iii) "Disability" shall have the meaning assigned to such term
in the Employment Agreement.
(iv) "Retirement at Normal Retirement Age" shall mean retirement
from employment with Holding and any Subsidiary thereof that employs the
Purchaser at age 65 or later.
(v) "Unforeseen Personal Hardship" shall mean financial hardship
arising from (x) extraordinary medical expenses or other expenses directly
related to illness or disability of the Purchaser, a member of the Purchaser's
immediate family or one of the Purchaser's parents or (y) payments necessary or
required to prevent the eviction of the Purchaser from the Purchaser's principal
residence or foreclosure on the mortgage on that residence. The Holding Board's
reasoned and good faith determination of Unforeseen Personal Hardship shall be
binding on Holding and the Purchaser.
(d) Notice of Termination. Holding shall give written notice of
any termination of the Purchaser's employment to the CD&R Fund, except that if
such termination (if other than as a result of death) is by the Purchaser, the
Purchaser shall give written notice of such termination to Holding and Holding
shall give written notice of such termination to the CD&R Fund.
(e) Public Offering. In the event that a Public Offering has been
consummated, neither Holding nor the CD&R Fund shall have any right to purchase
the
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Shares pursuant to this Section 6 and this Section 6 shall not apply to a sale
as part of the Public Offering.
7. Determination of the Purchase Price; Manner of Payment.
(a) Purchase Price. (i) For the purposes of any purchase of the
Shares pursuant to Section 6, and subject to Section 11(c), the purchase price
per Share to be paid to the Purchaser (or his estate) for each Share (the
"Purchase Price") shall be the Fair Market Value (determined in accordance with
paragraph (ii) below) of such Share as of the later of seven months after the
date of the Purchaser's acquisition of such Share or the effective date of the
termination of employment or determination of financial hardship, as the case
may be, that gives rise to the right or obligation to repurchase (such date, the
"Determination Date"), provided that if the Purchaser's employment is terminated
by Holding or any Subsidiary thereof that employs the Purchaser for Cause, the
Purchase Price for such Shares shall be the lesser of (i) the Fair Market Value
of such Shares as of the effective date of such termination of employment and
(ii) the price at which the Purchaser purchased such Shares from Holding.
(ii) Whenever determination of the Fair Market Value of the
Shares is required to be determined under the terms of this Agreement, such Fair
Market Value shall be such amount as is determined in good faith by the Holding
Board in accordance with this subsection (ii). In making a determination of Fair
Market Value, the Holding Board shall give due consideration to such factors as
it deems appropriate, provided that such factors shall include, without
limitation, the earnings and certain other financial and operating information
of Holding and its Subsidiaries in recent periods, the potential value of
Holding and its Subsidiaries as a whole, the future prospects of Holding and its
Subsidiaries and the industries in which they compete, the history and
management of Holding and its Subsidiaries, the general condition of the
securities markets, the fair market value of securities of companies engaged in
businesses similar to those of Holding and its Subsidiaries and the Applicable
Share Valuation (as defined below). The determination of Fair Market Value will
not give effect to any restrictions on transfer of the Shares or the fact that
such Shares would represent a minority interest in Holding. For purposes of this
Agreement, the term "Applicable Share Valuation" shall mean the annual valuation
of the Common Stock performed as of the last day of the last fiscal year of
Holding ending prior to the Determination Date by an independent valuation firm
chosen by the Holding Board, except that, in the case of a Determination Date
occurring during the fourth fiscal quarter of any fiscal year of Holding
beginning with the fourth quarter of the 2001 fiscal year of Holding, the term
"Applicable Share Valuation" shall mean the annual valuation of the Common Stock
performed as of the last day of such fourth fiscal quarter by an independent
valuation firm chosen by the Holding Board.
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Such annual valuations shall be performed as promptly as practicable following
the end of each fiscal year of Holding, beginning with the 2001 fiscal year of
Holding. The Fair Market Value as reasonably determined in good faith by the
Holding Board and in the absence of fraud shall be binding and conclusive upon
all parties hereto and the CD&R Fund. If Holding subdivides (by any stock split,
stock dividend or otherwise) the Common Stock into a greater number of shares,
or combines (by reverse stock split or otherwise) the Common Stock into a
smaller number of shares after the Holding Board shall have determined the
Purchase Price for the Shares (without taking into consideration such
subdivision or combination) and prior to the consummation of the purchase, the
Purchase Price (including any minimum or maximum Purchase Price specified herein
or in effect as a result of a prior adjustment) shall be appropriately adjusted
to reflect such subdivision or combination and the Holding Board's determination
as to any such adjustment shall be binding and conclusive on all parties hereto
and the CD&R Fund.
(b) Closing of Purchase; Payment of Purchase Price. Subject to
Section 11, the closing of a purchase pursuant to this Section 6 shall take
place at the principal office of Holding on the tenth business day following
whichever of the following is applicable: (i) the receipt by the Purchaser (or
his estate) of the notice of Holding or the CD&R Fund, as the case may be, of
its exercise of its option to purchase any of the Shares pursuant to Section 6
(a) or (ii) Holding's receipt of notice from the Purchaser (or his estate)
requiring Holding to purchase all of the Shares pursuant to Section 6 (a) or
(iii) the Holding Board's determination (which shall be delivered to the
Purchaser) that Holding is authorized to purchase Shares as a result of
Unforeseen Personal Hardship pursuant to Section 6 (b). At the closing, (i)
subject to the proviso below, Holding or the CD&R Fund, as the case may be,
shall pay to the Purchaser (or his estate) cash or immediately available funds
in an amount equal to the Purchase Price and (ii) the Purchaser (or his estate)
shall deliver to Holding such certificates or other instruments representing the
Shares so purchased, appropriately endorsed by the Purchaser (or his estate), as
Holding may reasonably require; provided, however, that if the Determination
Date occurs during the first or last fiscal quarter of any fiscal year of
Holding, Holding or the CD&R fund, as the case may be, may elect to pay the
Purchase Price in two installments. In any such event, (i) at the closing of the
purchase of the Shares, Holding or the CD&R Fund, as the case may be, shall pay
to the Purchaser (or his estate) an amount (the "First Installment Amount")
equal to 80% of the Fair Market Value of the Shares, determined pursuant to
Section 7 (a) hereof on the basis of the most recent available valuation of the
Shares, and (ii) no later than the tenth business day following receipt by
Holding of the Applicable Share Valuation, Holding or the CD&R Fund, as the case
may be, shall pay an additional amount to the Purchaser (or his estate) equal to
the sum of (1) the excess (the "Excess Payment"), if any, of (A) the Purchase
Price for the Shares, over (B) the First Installment Amount and (2) interest on
the Excess
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Payment for the period commencing on the closing date of the purchase of the
Shares and ending on the date of payment of such additional amount pursuant to
this clause (ii) at the average annual cost to Holding and its Subsidiaries of
its bank indebtedness obligations outstanding during such period or, if there
are no such obligations outstanding, one percentage point greater than the
average annual prime rate charged during such period by The Chase Manhattan Bank
in New York, New York ("Chase Bank") or such other nationally recognized bank
designated by Holding.
(c) Application of the Purchase Price to Certain Loans. The
Purchaser agrees that Holding and the CD&R Fund shall be entitled to apply any
amounts to be paid by Holding or the CD&R Fund, as the case may be, to
repurchase Shares pursuant to Section 5 or 6 hereof to discharge any
indebtedness of the Purchaser to Holding or any Subsidiary thereof, including,
without limitation, indebtedness of the Purchaser incurred to purchase the
Shares or indebtedness to a third party that is guaranteed by Holding or any
such Subsidiary.
8. Drag-Along Rights.
(a) Drag-Along Notice. If the CD&R Fund intends to effect a sale
of 51% or more of its shares of common stock of Holding to a third party (a
"Third Party Buyer") and the CD&R Fund elects to exercise its rights under this
Section 8, the CD&R Fund shall deliver written notice (a "Drag-Along Notice") to
the Purchaser, which notice shall (a) state (i) that the CD&R Fund wishes to
exercise its rights under this Section 8 with respect to such sale, (ii) the
name and address of the Third Party Buyer, (iii) the per share amount and form
of consideration the CD&R Fund proposes to receive for its shares of common
stock of Holding and (iv) the terms and conditions of payment of such
consideration and all other material terms and conditions of such sale, (b)
contain an offer (the "Drag-Along Offer") by the Third Party Buyer to purchase
from the Purchaser a percentage of his Shares equal to the percentage of the
shares of common stock of Holding owned by the CD&R Fund that are to be sold to
the Third Party Buyer (such percentage, the "Applicable Percentage") on and
subject to the same terms and conditions offered to the CD&R Fund and (c) state
the anticipated time and place of the closing of the purchase and sale of the
Applicable Percentage of the Shares (a "Section 8 Closing"), which (subject to
such terms and conditions) shall occur not fewer than five (5) days nor more
than ninety (90) days after the date such Drag-Along Notice is delivered,
provided that if such Section 8 Closing shall not occur prior to the expiration
of such 90-day period, the CD&R Fund shall be entitled to deliver additional
Drag-Along Notices with respect to such Drag-Along Offer.
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(b) Conditions to Drag-Along. Upon delivery of a Drag-Along
Notice, the Purchaser shall have the obligation to transfer the Applicable
Percentage of the Purchaser's Shares pursuant to the Drag-Along offer, as the
same may be modified from time to time, provided that the CD&R Fund transfers
the Applicable Percentage of its shares of common stock of Holding to the Third
Party Buyer at the Section 8 Closing. Within 10 days of receipt of the
Drag-Along Notice, the Purchaser shall (i) execute and deliver to the CD&R Fund
a power of attorney and a letter of transmittal and custody agreement
appointing, and in form and substance reasonable satisfactory to, the CD&R Fund
or one or more of its affiliates designated by the CD&R Fund (the "Custodian"),
the true and lawful attorney-in-fact and custodian for the Purchaser, with full
power of substitution, and authorizing the Custodian to take such actions as the
Custodian may deem necessary or appropriate to effect the sale and transfer of
the Applicable Percentage of the Shares to the Third Party Buyer, upon receipt
of the purchase price therefor at the Section 8 Closing, free and clear of all
security interests, liens, claims, encumbrances, charges, options, restrictions
on transfer, proxies and voting and other agreements of whatever nature, and to
take such other action as may be necessary or appropriate in connection with
such sale, including consenting to any amendments, waivers, modifications or
supplements to the terms of the sale (provided that the CD&R Fund also so
consents, and, to the extent applicable, sells and transfers the Applicable
Percentage of its shares of common stock of Holding on the same terms as so
amended, waived, modified or supplemented) and (ii) deliver to the Custodian
certificates representing the Applicable Percentage of the Shares, together with
all necessary duly executed stock powers. The Custodian shall hold the
Applicable Percentage of the Shares and other documents in trust for the
Purchaser pending completion or abandonment of such sale. If, within 90 days
after the CD&R Fund delivers the Drag-Along Notice, the CD&R Fund has not
completed the sale of the Applicable Percentage of the Shares and of its shares
of common stock of Holding to the Third Party Buyer and another Drag-Along
Notice with respect to such Drag-Along Offer has not been sent to the Purchaser,
the Custodian shall return to the Purchaser all certificates representing the
Applicable Percentage of the Shares and all other documents that the Purchaser
delivered in connection with such sale. Promptly after the Section 8 Closing,
the Custodian shall give notice thereof to the Purchaser, shall remit to the
Purchaser the total consideration for the Applicable Percentage of the Shares
sold pursuant thereto (reduced by any required withholding or other similar
taxes and by any amount required to be held in escrow pursuant to the terms of
the purchase and sale agreement and a pro rata portion of any expenses incurred
in connection with such sale), and shall furnish such other evidence of the
completion and time of completion of such sale and the terms thereof as may
reasonably be requested by the Purchaser.
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(c) Reincorporation, Merger, Etc. . If the CD&R Fund shall
determine that Holding should reincorporate in another jurisdiction, merge with
or into another entity, transfer substantially all of its assets to another
entity or participate in any other corporate reorganization or readjustment (any
such transaction a "Reorganization"), Purchaser shall take such actions as may
be requested by Holding to effect such a Reorganization; provided that Purchaser
shall not be required to take such actions unless Purchaser's proportionate
interest in the assets and earnings of any entity that results from such
Reorganization is the same (except for de minimis differences) as such
Purchaser's interest in the assets and earnings of Holding immediately prior to
such Reorganization.
(d) Remedies. The Purchaser acknowledges that the CD&R Fund would
be irreparably damaged in the event of a breach or a threatened breach by the
Purchaser of any of its obligations under this Section 8 and the Purchaser
agrees that, in the event of a breach or a threatened breach by the Purchaser of
any such obligation, the CD&R Fund shall, in addition to any other rights and
remedies available to it in respect of such breach, be entitled to an injunction
from a court of competent jurisdiction (without any requirement to post bond)
granting specific performance by the Purchaser of its obligations under this
Section 8. In the event that the CD&R Fund shall file suit to enforce the
covenants contained in this Section 8 (or obtain any other remedy in respect of
any breach thereof), the prevailing party in the suit shall be entitled to
recover, in addition to all other damages to which it may be entitled, the costs
incurred by such party in conducting the suit, including reasonable attorney's
fees and expenses. In the event that, following a breach or a threatened breach
by the Purchaser of the provisions of this Section 8, the CD&R Fund does not
obtain an injunction granting it specific performance of the Purchaser's
obligations under this Section 8 in connection with such proposed sale prior to
the time the CD&R Fund completes the sale of the Applicable Percentage of its
shares of common stock of Holding or, in its sole discretion, abandons such
sale, then Holding shall have the option to purchase all of the Shares from the
Purchaser at a purchase price per Share equal to the price at which the
Purchaser purchased such shares of Common Stock from Holding or, if less, the
per share consideration payable pursuant to the Drag-Along Offer. Upon
notification by Holding to the Purchaser of Holding's decision to purchase such
Shares, including the price to be paid therefor, the sale and transfer to
Holding shall be considered complete and ownership of such Shares shall pass to
Holding.
(e) Public Offering. In the event that a Public Offering has been
consummated, the provisions of this Section 8 shall terminate and cease to have
further effect.
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9. Representations and Warranties of Holding. Holding represents
and warrants to the Purchaser that (a) Holding has been duly incorporated and
validly exists under the laws of Luxembourg, (b) this Agreement has been duly
authorized, executed and delivered by Holding and constitutes a valid and
legally binding obligation of Holding enforceable against Holding in accordance
with its terms and (c) the Shares, when issued, delivered and paid for in
accordance with the terms hereof, will be duly and validly issued, fully paid
and nonassessable, and free and clear of any liens or encumbrances other than
those created pursuant to this Agreement, or otherwise in connection with the
transactions contemplated hereby.
10. Covenants of Holding.
(a) Rule 144. Holding agrees that at all times after it has filed
a registration statement after the date hereof pursuant to the requirements of
the Securities Act or Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), relating to any class of equity securities of
Holding (other than (i) the registration of equity securities of Holding and/or
options or interests in respect thereof to be offered primarily to directors
and/or members of management or employees, sales agents or similar
representatives of Holding or its Subsidiaries, or directors or senior
executives or corporations in which entities managed or sponsored by Clayton,
Dubilier & Rice, Inc. ("CD&R") have made equity investments and/or other persons
with whom CD&R has consulting or other advisory relationships, or (ii) the
registration of equity securities and/or options or other interests in respect
thereof solely on Form S-4 or S-8 or any successor form), it will file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the Commission thereunder (or, if
Holding is not required to file such reports, it will, upon the request of the
Purchaser, make publicly available such information as necessary to permit sales
pursuant to Rule 144 under the Securities Act), to the extent required from time
to time to enable the Purchaser to sell the Shares without registration under
the Securities Act within the limitation of the exemptions provided by (i) Rule
144, as such Rule may be amended from time to time, or (ii) any successor rule
or regulation hereafter adopted by the Commission.
(b) State and Non-U.S. Securities Laws. Holding agrees to use its
best efforts to comply with all state securities or "blue sky" laws and foreign
securities laws, if any, applicable to the sale of the Shares to the Purchaser,
provided that Holding shall not be obligated to qualify or register the Shares
under any such law or to qualify as a foreign corporation or file any consent to
service of process under the laws of any jurisdiction or subject itself to
taxation as doing business in any such jurisdiction.
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11. Certain Restrictions on Repurchases.
(a) Financing Agreements, etc. Notwithstanding any other
provision of this Agreement, Holding shall not be obligated or permitted to
repurchase any Shares from the Purchaser if (i) such repurchase would result in
a violation of the terms or provisions of, or results in a default or an event
of default by Holding or any of its Subsidiaries under, (A) the Credit
Agreement, dated as of April 30, 1998 (as amended from time to time, the "Credit
Agreement"), among JCI, the other borrowers thereto, Credit Suisse First Boston,
as administrative agent, and the lenders party thereto from time to time, (B)
the Indenture, dated as of April 30, 1998, among JCI, the other borrowers
thereto and guarantors thereof, and State Street Bank and Trust Company, as
trustee (the "Indenture") or (C) any other guarantee, financing or security
agreement or document entered into (I) by Holding or any Subsidiary thereof
prior to date hereof, or (II) otherwise from time to time in connection with the
operations of Holding or its Subsidiaries (the Credit Agreement, the Indentures
and such other agreements and documents, as each may be amended, modified or
supplemented from time to time, are referred to herein as the "Financing
Agreements"), in each case as the same may be amended, modified or supplemented
from time to time, (ii) such repurchase would violate any of the terms or
provisions of the Articles of Incorporation of Holding or the laws of Luxembourg
or (iii) Holding has no funds legally available therefor under the laws of
Luxembourg.
(b) Delay of Repurchase. In the event that the repurchase of any
of the Shares by Holding otherwise permitted or required under Section 6 (a) is
prevented solely by the terms of Section 11 (a), Holding shall provide written
notice thereof to the Purchaser and (i) such repurchase will be postponed and
will take place without the application of further conditions or impediments
(other than as set forth in Section 7 hereof or in this Section 11) at the first
opportunity thereafter when Holding has funds legally available therefor and
when such repurchase will not result in any default, event of default or
violation under any of the Financing Agreements or in a violation of any term or
provision of the Articles of Incorporation of Holding or any law of Luxembourg
and (ii) such repurchase obligation shall rank against other similar repurchase
obligations with respect to shares of Common Stock or options in respect thereof
according to priority in time of the effective date of the termination of
employment or, if applicable, determination of financial hardship giving rise to
such repurchase obligation; provided that (A) repurchase obligations arising
pursuant to the exercise of a Purchaser's right to require a repurchase under
Section 6 (a) and repurchase obligations arising under Section 6 (b) by reason
of an approved financial hardship shall take precedence over repurchase
obligations arising pursuant to Holding's exercise of its right to repurchase
the Shares under Section 6 (a) (unless the Purchaser had given written notice to
Holding of such
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Purchaser's intent to require Holding to repurchase the Shares under Section 6
(a) in the event that Holding does not exercise its right to do so, in which
case, solely for the purpose of this clause (A), such repurchase shall be
treated as pursuant to such right of the Purchaser) and (B) repurchase
obligations as to which a common date determines priority shall be of equal
priority and shall share pro rata in any repurchase payments made pursuant to
clause (i) above. In the event that the repurchase of any of the Shares by
Holding otherwise required under Section 6 (a) is prevented by reason of clause
(iii) of Section 11 (a), and a Subsidiary of Holding has cash and legally
available distributable reserves sufficient to enable Holding to effect such
repurchase (and the distribution of such cash can be accomplished without the
imposition of any withholding or other tax or other cost and without adversely
affecting the business affairs of such Subsidiary) so that such repurchase would
not be prevented by reason of such clause (iii), Holding will use commercially
reasonable efforts to cause such Subsidiary to so distribute such funds, subject
in all cases to any restrictions or other limitations in any of the Financing
Agreements.
(c) Purchase Price Adjustment. In the event that a repurchase of
Shares from the Purchaser is delayed pursuant to this Section 11, the purchase
price per Share when the repurchase of such Shares eventually takes place as
contemplated by Section 11 (b) shall be equal to the Purchase Price per Share
determined under Section 7 as of the date of the termination or determination of
financial hardship giving rise to such repurchase, increased by interest on such
Purchase Price for the period from the date such repurchase would have taken
place but for a delay of such repurchase pursuant to Section 11 (a) to the date
on which the repurchase actually takes place (the "Delay Period"), at an annual
rate of interest equal to the average annual cost to Holding and its
Subsidiaries of its bank indebtedness obligations outstanding during the Delay
Period or, if there are no such obligations outstanding, one percentage point
greater than the average annual prime rate charged during the Delay Period by
Chase Bank or such other nationally recognized bank designated by Holding.
12. Miscellaneous.
(a) Notices. All notices and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been given if delivered personally or sent by certified or
express mail, return receipt requested, postage prepaid, or by any recognized
international equivalent of such mail delivery, to Holding, the CD&R Fund or the
Purchaser, as the case may be, at the following addresses or to such other
address as Holding, the CD&R Fund or the Purchaser, as the case may be, shall
specify by notice to the others:
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(i) if to Holding, to Holding at:
CDRJ Investments (Lux) S.A.
3 Boulevard Royal
L-2449 Luxembourg
Luxembourg
Attention: Secretary of the Advisory Committee
with a copy to:
Jafra Cosmetics International, Inc.
2451 Townsgate Road
Westlake Village, California 91361
Attention: General Counsel
(ii) if to the Purchaser, to the Purchaser at the address set
forth on the signature page hereof, with a copy to:
Stephan G. Bachelder & Associates, P.A.
22 Free Street, Suite 201
Portland, ME 04101
Attention: Stephan G. Bachelder, Esq.
(iii) if to the CD&R Fund, to:
Clayton, Dubilier & Rice Fund V
Limited Partnership
Foulkstone Plaza, Suite 102
1403 Foulk Road
Wilmington, Delaware 19803
Attention: Joseph L. Rice, III
All such notices and communication shall be deemed to have been received on the
date of delivery if delivered personally or on the third business day after the
mailing thereof. Copies of any notice or other communication given under this
Agreement shall also be given to:
Clayton Dubilier & Rice, Inc.
375 Park Avenue
New York, New York 10152
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Attention: Donald J. Gogel
and
Debevoise and Plimpton
875 Third Avenue
New York, New York 10022
Attention: Paul S. Bird, Esq.
The CD&R Fund also shall be given a copy of any notice or other communication
between the Purchaser and Holding under this Agreement at its address as set
forth above.
(b) Binding Effect; Benefits. This Agreement shall be binding
upon the parties to this Agreement and their respective successors and assigns
and shall inure to the benefit of the parties to this Agreement, the CD&R Fund
and their respective successors and assigns. Except as provided in Sections 4
through 8, inclusive, nothing in this Agreement, express or implied, is intended
or shall be construed to give any person other than the parties to this
Agreement, the CD&R Fund or their respective successors or assigns any legal or
equitable right, remedy or claim under or in respect of any agreement or
provision contained herein.
(c) Waiver, Amendment.
(i) Waiver. Any party hereto or beneficiary hereof may by
written notice to the other parties (A) extend the time for the
performance of any of the obligations or other actions of the other
parties under this Agreement, (B) waive compliance with any of the
conditions or covenants of the other parties contained in this Agreement
and (C) waive or modify performance of any of the obligations of the
other parties under this Agreement, provided that any waiver of the
provisions of Sections 4 through 8, inclusive, must be consented to in
writing by the CD&R Fund. Except as provided in the preceding sentence,
no action taken pursuant to this Agreement, including, without
limitation, any investigation by or on behalf of any party or
beneficiary shall be deemed to constitute a waiver by the party or
beneficiary taking such action of compliance with any representations,
warranties, covenants or agreements contained herein. The waiver by any
party hereto or beneficiary hereof of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any preceding
or succeeding breach and
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no failure by a party to exercise any right or privilege hereunder shall
be deemed a waiver of such party's or beneficiary's rights or privileges
hereunder or shall be deemed a waiver of such party's or beneficiary's
rights to exercise the same at any subsequent time or times hereunder.
(ii) Amendment. This Agreement may not be amended, modified or
supplemented orally, but only by a written instrument executed by the
Purchaser and Holding, and, in the case of any amendment, modification
or supplement to or affecting any of Sections 4 through 8 inclusive or
that adversely affects the rights of the CD&R Fund hereunder consented
to by the CD&R Fund in writing. The parties hereto acknowledge that
Holding's consent to an amendment or modification of this Agreement may
be subject to the terms and provisions of the Financing Agreements.
(d) Assignability. Except as provided herein, neither this
Agreement nor any right, remedy, obligation or liability arising hereunder or by
reason hereof shall be assignable by Holding or the Purchaser without the prior
written consent of the other party hereto and the CD&R Fund; provided that this
Agreement and the rights, remedies, obligations and liabilities of Holding shall
be assignable by Holding to any Successor of Holding. Holding and the CD&R Fund
may assign from time to time all or any portion of its rights under Section 4
though 8 hereof to one or more Affiliates designated by it.
(e) Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS WHICH WOULD REQUIRE APPLICATION OF
THE LAW OF ANOTHER JURISDICTION.
(f) Jurisdiction. The Purchaser hereby irrevocably and
unconditionally submits, for him or her self and his or her property, to the
nonexclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State court or, to the extent permitted by law, in such Federal court. Each
of the parties hereby agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that Holding may otherwise have to bring any
action or proceeding
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relating to this Agreement against the Purchaser or his or her properties in the
courts of any jurisdiction. The Purchaser hereby irrevocably and unconditionally
waives, to the fullest extent he or she may legally and effectively do so, any
objection that he or she may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement in any
New York or Federal court. Each of the parties hereto hereby irrevocably waives,
to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
(g) Section and Other Headings, etc. The section and other
headings contained in this Agreement are for reference purposes only and shall
not affect the meaning or interpretation of this Agreement.
(h) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
(i) Certain Definitions.
"Affiliate": with respect to any Person, means any other Person
that, directly or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with the first Person, including but
not limited to a Subsidiary of the first Person, a Person of which the first
Person is a Subsidiary, or another Subsidiary of a Person of which the first
Person is also a Subsidiary.
"Control": with respect to any Person, means the possession,
directly or indirectly, severally or jointly, of the power to direct or cause
the direction of the management policies of such Person, whether through the
ownership of voting securities, by contract or credit arrangement, as trustee or
executor, or otherwise.
"Person": any natural person, firm, partnership, limited
liability company, association, corporation, company, trust, business trust,
governmental authority or other entity.
"Subsidiary": with respect to any Person, each corporation or
other Person in which the first Person owns or Controls, directly or indirectly,
capital stock or other ownership interests representing 50% or more of the
combined voting power of the outstanding voting stock or other ownership
interests of such corporation or other Person.
"Successor": of a Person means a Person that succeeds to the
first Person's assets and liabilities by merger, liquidation, dissolution or
otherwise by
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operation of law, or a Person to which all or substantially all the assets
and/or business of the first Person are transferred.
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IN WITNESS WHEREOF, Holding and the Purchaser have executed this
Agreement as of the date first above written.
CDRJ INVESTMENTS (LUX) S.A.
By:
-----------------------------------------
Name:
Title:
THE PURCHASER:
By:
-----------------------------------------
Name:
as Attorney-in-Fact
Address of the Purchaser:
Total Number of Shares of
Common Stock of CDRJ
Investments (Lux) S.A.
(RC Luxembourg B 63 119)
to be Purchased
Total Cash Purchase Price
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