EXECUTION COPY
EXHIBIT 10.23
AMENDED AND RESTATED INDEMNIFICATION AGREEMENT
AMENDED AND RESTATED INDEMNIFICATION AGREEMENT, dated as of May __,
2003(the "Agreement"), among CDRJ Investments (Lux) S.A., a Luxembourg societe
anonyme ("CDRJ"), CDRJ North Atlantic S.ar.l., a Luxembourg societe a
responsabilite limitee ("North Atlantic"), Jafra Worldwide Holdings (Lux)
S.ar.l., a Luxembourg societe a responsabilite limitee ("Jafra Worldwide"),
Distribudora Comercial Jafra S.A. de C.V., a Mexican sociedad anonima de capital
variable ("Jafra Distribution (Mexico)"), Jafra Cosmetics International, Inc., a
Delaware corporation ("Jafra US"), Jafra Cosmetics International, S.A. de C.V.,
a Mexican sociedad anonima de capital variable ("Jafra Mexico"), Xxxxxxx,
Dubilier & Rice, Inc., a Delaware corporation ("CD&R"), and Xxxxxxx, Dubilier &
Rice Fund V Limited Partnership, a Cayman Islands exempted limited partnership
(together with any other investment vehicle managed by CD&R, "CD&R Fund").
Capitalized terms used herein without definition have the meanings set forth in
Section 1 of this Agreement.
RECITALS
A. CD&R Fund is managed by CD&R, and the general partner of CD&R
Fund is Xxxxxxx, Dubilier & Rice Associates V Limited Partnership, a Cayman
Islands exempted limited partnership (together with any general partner of any
other investment vehicle managed by CD&R, "CD&R Associates"), and the managing
general partner of CD&R Associates is CD&R Investment Associates II, Inc., a
Delaware corporation (together with any other general partner of CD&R
Associates, "Associates Inc").
B. CDRJ acquired the Jafra cosmetics business of Xxx Xxxxxxxx
Xxxxxxx (the "Acquisition") pursuant to the Acquisition Agreement, dated as of
January 26, 1998, as amended (the "Acquisition Agreement"), between Xxx Xxxxxxxx
Xxxxxxx, Cayman Co. and CDRJ and the other parties thereto.
C. In order to finance the Acquisition and related and subsequent
transactions, CDRJ, Jafra US, Jafra Mexico engaged in a number of transactions
including:
(i) one or more offerings of common stock by CDRJ to CD&R
Fund and to certain purchasers, including executive officers or key
employees of CDRJ, Jafra US or Jafra Mexico (the "Equity Offerings");
(ii) one or more borrowings under senior secured credit
facilities under a Credit Agreement, dated as of April 30, 1998, among,
CDRJ, Jafra US and Jafra Mexico and the lenders named therein (the "Old
Senior Secured Credit Facilities");
(iii) the offering and sale by Jafra US and Jafra Mexico
(the "Old Note Offering") to institutional investors of $100 million
aggregate principal of 11 3/4% Senior Subordinated Notes due 2008 (the
"Old Senior Subordinated Notes"); and
(iv) the offer by Jafra US and Jafra Mexico (the "Old Note
Exchange Offer") to exchange the Old Senior Subordinated Notes for
substantially identical notes registered on Form S-4 with the
Securities and Exchange Commission (the "Commission").
D. CDRJ has initiated a restructuring (the "Restructuring"),
whereby:
(i) Jafra Worldwide, Jafra US and Jafra Distribution
(Mexico) have entered into a Credit Agreement, among, Jafra Worldwide,
Jafra US and Jafra Distribution (Mexico), the lenders named therein,
and Credit Suisse First Boston, as administrative agent, providing for
borrowing of up to a maximum principal amount of $90 million (the "New
Senior Secured Credit Facilities");
(ii) Jafra US and Jafra Distribution (Mexico) have offered
and sold (the "New Note Offering"), in an offering to institutional
investors pursuant to Rule 144A under the Securities Act, $200 million
aggregate principal of 10 3/4% Senior Subordinated Notes due 2011 (the
"New Senior Subordinated Notes");
(iii) Jafra US will use proceeds from the New Senior
Secured Credit Facilities and the New Note Offering to repay its
outstanding indebtedness under the Old Senior Secured Credit Facilities
and the Old Old Senior Subordinated Notes, make a payment in respect of
its outstanding options, pay fees and expenses in respect of the
Restructuring and make a distribution to North Atlantic, its sole
shareholder;
(iv) Jafra Distribution (Mexico) will use proceeds from
the New Senior Secured Credit Facilities and the New Note Offering,
among other things, to (x) subscribe for and purchase preferred stock
from Jafra Mexico and purchase certain fixed assets used to conduct the
distribution business of Jafra Mexico, (y) to purchase shares of Jafra
Mexico preferred stock from shareholders of Jafra Mexico and (z) pay
fees and expenses in respect of the Restructuring, including a
guarantee fee to Jafra Mexico in consideration for a guarantee by Jafra
Mexico of all of the outstanding indebtedness of Jafra Distribution
(Mexico) under the New Senior Secured Credit Facilities and the New
Senior Subordinated Notes;
(v) Jafra Mexico will use the proceeds from its issuance
of preferred stock to Jafra Distribution (Mexico), among other things,
to repay its outstanding indebtedness under the Old Senior Secured
Credit Facilities and the Old Senior Subordinated Notes;
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(vi) the shareholders of Jafra Mexico will distribute to
North Atlantic, their ultimate parent company, the proceeds from the
sale of preferred stock of Jafra Mexico received from Jafra
Distribution (Mexico), and North Atlantic, in turn, will distribute
such proceeds to CDRJ;
(vii) CDRJ will commence liquidation proceedings (the
"Liquidation"), enabling it to make a series of liquidating
distributions to its shareholders, consisting of the cash it received
as dividend distributions from North Atlantic and, at the conclusion of
the Liquidation, shares of North Atlantic common stock, whereupon CDRJ
will liquidate;
(viii) Jafra Worldwide will act as liquidator with respect
to the liquidation of CDRJ and assume all contingent and unknown
liabilities of CDRJ that remain unsatisfied following its liquidation;
and
(ix) it is contemplated that Jafra US and Jafra
Distribution (Mexico) will offer (the "New Note Exchange Offer") to
exchange the New Senior Subordinated Notes for substantially identical
notes to be registered on Form S-4 with the Commission.
E. CDRJ, Jafra US, Jafra Mexico and CD&R have entered into the
Consulting Agreement, pursuant to which CD&R has performed and continues to
perform financial, management advisory and other services for CDRJ, North
Atlantic, Jafra Worldwide, Jafra US, Jafra Mexico, Jafra Distribution (Mexico)
and their Subsidiaries, including but not limited to assistance in connection
with (i) the evaluation, negotiation, documentation and execution of strategic
initiatives for such companies, and (ii) the retention of legal, accounting,
insurance, investment banking, financial and other advisors and consultants in
connection with such strategic initiatives.
F. CDRJ or one or more of its Subsidiaries from time to time
prior to the date hereof has offered and sold, or caused to be offered and sold,
equity or debt securities (such offerings, the "Prior Offerings"), including
without limitation (x) offerings of shares of CDRJ and/or options to purchase
such shares to employees, directors, managers and consultants of and to CDRJ or
any Subsidiary and (y) one or more offerings of debt securities for the purpose
of financing the Acquisition and other corporate purposes.
G. North Atlantic or one or more of its respective Subsidiaries
from time to time in the future (i) may offer and sell or cause to be offered
and sold equity or debt securities (such offerings, together with the New Note
Exchange Offer, being collectively referred to as the "Subsequent Offerings"),
including without limitation (x) offerings of shares of North Atlantic, and/or
options to purchase such shares to employees, directors, managers and
consultants of and to North Atlantic or any Subsidiary (a "Management
Offering"), and (y) one or more offerings of debt securities for the purpose of
refinancing
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any indebtedness of Jafra US or Jafra Distribution (Mexico) or any Subsidiary or
for other corporate purposes, and (ii) may repurchase, redeem or otherwise
acquire certain securities of CDRJ or one or more of its Subsidiaries (any such
repurchase or redemption being referred to herein as a "Redemption").
H. The parties hereto recognize the possibility that claims might
be made against and liabilities incurred by CD&R, CD&R Fund, CD&R Associates,
Associates Inc. or related persons or affiliates under applicable securities
laws or otherwise in connection with the Transactions or the Securities
Offerings, or relating to other actions or omissions of or by members of the
Company Group, or relating to the provision by CD&R of management consulting,
monitoring and financial advisory services to the Company Group, and CDRJ, Jafra
US and Jafra Mexico are party to the Indemnification Agreement, dated as of
April 30, 1998 (the "Original Agreement"), which provides CD&R, CD&R Fund, CD&R
Associates, and Associates Inc. and related persons and affiliates to be
indemnified in respect of any such claims and liabilities, which the parties
hereto desire to amend and restate to take into account the Restructuring.
I. The parties hereto recognize that claims might be made against
and liabilities incurred by directors and officers of the Company Group in
connection with their acting in such capacity, and accordingly wish to provide
for such directors and officers to be indemnified to the fullest extent
permitted by law in respect of any such claims and liabilities.
NOW, THEREFORE, in consideration of the foregoing premises, and the
mutual agreements and covenants and provisions herein set forth, the parties
hereto hereby agree as follows:
1. Definitions.
(a) "CD&R Subsidiary" means each corporation or other person or
entity in which CD&R owns, directly or indirectly, capital stock or other equity
interests representing sufficient voting, appointment or designation power for
the selection of a majority of the governing body of such corporation, other
person or entity, excluding, for the avoidance of doubt, any corporation or
other person or entity owned directly or indirectly by an investment vehicle
managed by CD&R.
(b) "Claim" means, with respect to any Indemnitee, any claim
against such Indemnitee involving any Obligation with respect to which such
Indemnitee may be entitled to be defended and indemnified by CDRJ, North
Atlantic, Jafra Worldwide, Jafra Distribution (Mexico), Jafra US or Jafra Mexico
under this Agreement.
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(c) "Company Group" means, collectively, CDRJ, North Atlantic,
Jafra Worldwide, Jafra Distribution (Mexico), Jafra US, Jafra Mexico, and the
Jafra Subsidiaries.
(d) "Consulting Agreement" means the Second Amended and Restated
Consulting Agreement, dated as of May 20, 2003, among CDRJ, North Atlantic,
Jafra Worldwide, Jafra Distribution (Mexico), Jafra US, Jafra Mexico and CD&R,
as the same may be amended, amended and restated, waived, modified or
supplemented from time to time, as well as its precedessor agreements.
(e) "Financings" means the financings provided for by the Old
Senior Secured Credit Facilities, the New Senior Secured Credit Facilities, the
Old Senior Subordinated Notes and the New Senior Subordinated Notes and any
Redemption.
(f) "Indemnitee" means each of CD&R, the CD&R Subsidiaries, CD&R
Fund, CD&R Associates, Associates Inc., their respective successors and assigns,
and the respective directors, officers, partners, members, employees, agents,
advisors, representatives and controlling persons (within the meaning of the
Securities Act of 1933, as amended (the "Securities Act")) of each of them and
each other person who is or becomes a director or an officer of the Company
Group, in each case irrespective of the capacity in which such person acts.
(g) "Jafra Subsidiary" means each corporation or other person or
entity in which CDRJ, North Atlantic, Jafra Worldwide, Jafra US, Jafra
Distribution (Mexico) or Jafra Mexico owns or controls, directly or indirectly,
capital stock or other equity interests representing at least 25% of the
outstanding voting stock or other equity interests.
(h) "Obligations" means, collectively, any and all claims,
obligations, liabilities, causes of actions, actions, suits, proceedings,
investigations, judgments, decrees, losses, damages, fees, costs and expenses
(including without limitation interest, penalties and fees and disbursements of
attorneys, accountants, investment bankers and other professional advisors), in
each case whether incurred, arising or existing with respect to third parties or
otherwise at any time or from time to time.
(i) "Related Document" means any agreement, certificate,
instrument or other document to which any member of the Company Group may be a
party or by which it or any of its properties or assets may be bound or affected
from time to time relating in any way to the Transactions or any Securities
Offering or any of the transactions contemplated thereby, including without
limitation, in each case as the same may be amended, modified, waived or
supplemented from time to time, (i) any registration statement filed by or on
behalf of any member of the Company Group with the Commission in connection with
the Transactions or any Securities Offering, including all
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exhibits, financial statements and schedules appended thereto, and any
submissions to the Commission in connection therewith, (ii) any prospectus,
preliminary or otherwise, included in such registration statements or otherwise
filed by or on behalf of any member of the Company Group in connection with the
Transactions or any Securities Offering or used to offer or confirm sales of
their respective securities in any Securities Offering, (iii) any private
placement or offering memorandum or circular, information statement or other
information or materials distributed by or on behalf of any member of the
Company Group or any placement agent or underwriter in connection with the
Transactions or any Securities Offering, (iv) any federal, state or foreign
securities law or other governmental or regulatory filings or applications made
in connection with any Securities Offering, the Transactions or any of the
transactions contemplated thereby, (v) any dealer-manager, underwriting,
subscription, purchase, stockholders, option or registration rights agreement or
plan entered into or adopted by any member of the Company Group in connection
with any Securities Offering, (vi) any purchase, repurchase, redemption or other
agreement entered into by any member of the Company Group in connection with any
Redemption, or (vii) any quarterly, annual or current reports or other filing
filed by any member of the Company Group with the Commission, including all
exhibits, financial statements and schedules appended thereto, and any
submission to the Commission in connection therewith.
(j) "Securities Offerings" means the Old Note Offering, the New
Note Offering, the Old Note Exchange Offer, the New Note Exchange Offer, the
Equity Offering, the Liquidation, any Management Offering, any Redemption, any
Prior Offering and any Subsequent Offering.
(k) "Transactions" means the Acquisition, the Equity Offerings,
the Restructuring and the Financings.
2. Indemnification.
(a) Each of CDRJ, North Atlantic, Jafra Worldwide, Jafra
Distribution (Mexico), Jafra US and Jafra Mexico (each an "Indemnifying Party"
and collectively, the "Indemnifying Parties"), jointly and severally, agrees to
indemnify, defend and hold harmless each Indemnitee:
(i) from and against any and all Obligations, whether
incurred with respect to third parties or otherwise, in any way
resulting from, arising out of or in connection with, based upon or
relating to (A) the Securities Act, the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or any other applicable
securities or other laws, in connection with any Securities Offering,
the Financings, any Related Document or any of the transactions
contemplated thereby, (B) any other action or failure to act of any
member of the Company Group or any of their predecessors, whether such
action or failure has occurred or
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is yet to occur or (C) except to the extent that any such Obligation is
found in a final judgment by a court of competent jurisdiction to have
resulted from the gross negligence or intentional misconduct of CD&R,
the performance by CD&R of management consulting, monitoring, financial
advisory or other services for any member of the Company Group (whether
performed prior to the date hereof, hereafter, pursuant to the
Consulting Agreement or otherwise); and
(ii) to the fullest extent permitted by applicable law,
from and against any and all Obligations in any way resulting from,
arising out of or in connection with, based upon or relating to (A) the
fact that such Indemnitee is or was a director or an officer of any
member of the Company Group or is or was serving at the request of such
corporation as a director, officer, employee or agent of or advisor or
consultant to another corporation, partnership, joint venture, trust or
other enterprise or (B) any breach or alleged breach by such Indemnitee
of his or her fiduciary duty as a director or an officer of any member
of the Company Group;
in each case including but not limited to any and all fees, costs and expenses
(including without limitation fees and disbursements of attorneys) incurred by
or on behalf of any Indemnitee in asserting, exercising or enforcing any of its
rights, powers, privileges or remedies in respect of this Agreement or the
Consulting Agreement.
(b) Without in any way limiting the foregoing Section 2(a), each
of the Indemnifying Parties agrees, jointly and severally, to indemnify, defend
and hold harmless each Indemnitee from and against any and all Obligations
resulting from, arising out of or in connection with, based upon or relating to
liabilities under the Securities Act, the Exchange Act or any other applicable
securities or other laws, rules or regulations in connection with (i) the
inaccuracy or breach of or default under any representation, warranty, covenant
or agreement in any Related Document, (ii) any untrue statement or alleged
untrue statement of a material fact contained in any Related Document or (iii)
any omission or alleged omission to state in any Related Document a material
fact required to be stated therein or necessary to make the statements therein
not misleading. Notwithstanding the foregoing, the Indemnifying Parties shall
not be obligated to indemnify such Indemnitee from and against any such
Obligation to the extent that such Obligation arises out of or is based upon an
untrue statement or omission made in such Related Document in reliance upon and
in conformity with written information furnished to CDRJ, Jafra US, North
Atlantic, Jafra Worldwide and Jafra Distribution (Mexico) or Jafra Mexico, as
the case may be, in an instrument duly executed by such Indemnitee and
specifically stating that it is for use in the preparation of such Related
Document.
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3. Contribution.
(a) Except to the extent that Section 3(b) is applicable, if for
any reason the indemnity provided for in Section 2(a) is unavailable or is
insufficient to hold harmless any Indemnitee from any of the Obligations covered
by such indemnity, then the Indemnifying Parties, jointly and severally, shall
contribute to the amount paid or payable by such Indemnitee as a result of such
Obligation in such proportion as is appropriate to reflect (i) the relative
fault of each member of the Company Group, on the one hand, and such Indemnitee,
on the other, in connection with the state of facts giving rise to such
Obligation, (ii) if such Obligation results from, arises out of, is based upon
or relates to the Transactions or any Securities Offering, the relative benefits
received by each member of the Company Group, on the one hand, and such
Indemnitee, on the other, from such Transaction or Securities Offering and (iii)
if required by applicable law, any other relevant equitable considerations.
(b) If for any reason the indemnity specifically provided for in
Section 2(b) is unavailable or is insufficient to hold harmless any Indemnitee
from any of the Obligations covered by such indemnity, then the Indemnifying
Parties, jointly and severally, shall contribute to the amount paid or payable
by such Indemnitee as a result of such Obligation in such proportion as is
appropriate to reflect (i) the relative fault of each of the members of the
Company Group, on the one hand, and such Indemnitee, on the other, in connection
with the information contained in or omitted from any Related Document, which
inclusion or omission resulted in the inaccuracy or breach of or default under
any representation, warranty, covenant or agreement therein, or which
information is or is alleged to be untrue, required to be stated therein or
necessary to make the statements therein not misleading, (ii) the relative
benefits received by the members of the Company Group, on the one hand, and such
Indemnitee, on the other, from such Transaction or Securities Offering and (iii)
if required by applicable law, any other relevant equitable considerations.
(c) For purposes of Section 3(a), the relative fault of each
member of the Company Group, on the one hand, and of the Indemnitee, on the
other, shall be determined by reference to, among other things, their respective
relative intent, knowledge, access to information and opportunity to correct the
state of facts giving rise to such Obligation. For purposes of Section 3(b), the
relative fault of each of the members of the Company Group, on the one hand, and
of the Indemnitee, on the other, shall be determined by reference to, among
other things, (i) whether the included or omitted information relates to
information supplied by the members of the Company Group, on the one hand, or by
such Indemnitee, on the other, and (ii) their respective relative intent,
knowledge, access to information and opportunity to correct such inaccuracy,
breach, default, untrue or alleged untrue statement, or omission or alleged
omission. For purposes of Section 3(a) or 3(b), the relative benefits received
by each member of the Company Group, on the one hand, and the Indemnitee, on the
other, shall
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be determined by weighing the direct monetary proceeds to the Company Group, on
the one hand, and such Indemnitee, on the other, from such Transaction or
Securities Offering.
(d) The parties hereto acknowledge and agree that it would not be
just and equitable if contributions pursuant to Section 3(a) or 3(b) were
determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to in such
respective Section. The Indemnifying Parties shall not be liable under Section
3(a) or 3(b), as applicable, for contribution to the amount paid or payable by
any Indemnitee except to the extent and under such circumstances any
Indemnifying Party would have been liable to indemnify, defend and hold harmless
such Indemnitee under the corresponding Section 2(a) or 2(b), as applicable, if
such indemnity were enforceable under applicable law. No Indemnitee shall be
entitled to contribution from any Indemnifying Party with respect to any
Obligation covered by the indemnity specifically provided for in Section 2(b) in
the event that such Indemnitee is finally determined to be guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) in
connection with such Obligation and the Indemnifying Parties are not guilty of
such fraudulent misrepresentation.
4. Indemnification Procedures.
(a) Whenever any Indemnitee shall have actual knowledge of the
reasonable likelihood of the assertion of a Claim, CD&R (acting on its own
behalf or, if requested by any such Indemnitee other than itself, on behalf of
such Indemnitee) or such Indemnitee shall notify the appropriate member of the
Company Group in writing of the Claim (the "Notice of Claim") with reasonable
promptness after such Indemnitee has such knowledge relating to such Claim and
has notified CD&R thereof. The Notice of Claim shall specify all material facts
known to CD&R (or if given by such Indemnitee, such Indemnitee) that may give
rise to such Claim and the monetary amount or an estimate of the monetary amount
of the Obligation involved if CD&R (or if given by such Indemnitee, such
Indemnitee) has knowledge of such amount or a reasonable basis for making such
an estimate. The failure of CD&R to give such Notice of Claim shall not relieve
any Indemnifying Party of its respective indemnification obligations under this
Agreement except to the extent that such omission results in a failure of actual
notice to it and it is materially injured as a result of the failure to give
such Notice of Claim. The Indemnifying Parties shall, at their expense,
undertake the defense of such Claim with attorneys of their own choosing
satisfactory in all respects to CD&R. CD&R may participate in such defense with
counsel of CD&R's choosing at the expense of the Indemnifying Parties. In the
event that none of the Indemnifying Parties undertake the defense of the Claim
within a reasonable time after CD&R has given the Notice of Claim, or in the
event that CD&R shall in good faith determine that the defense of any claim by
the Indemnifying Parties is inadequate or may conflict with the interest of any
Indemnitee, CD&R may, at the expense of the Indemnifying Parties and after
giving
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notice to the Indemnifying Parties of such action, undertake the defense of the
Claim and compromise or settle the Claim, all for the account of and at the risk
of the Indemnifying Parties. In the defense of any Claim, the Indemnifying
Parties shall not, except with the prior written consent of CD&R, consent to
entry of any judgment or enter into any settlement that includes any injunctive
or other non-monetary relief, or that does not include as an unconditional term
thereof the giving by the person or persons asserting such Claim to such
Indemnitee of a release from all liability with respect to such Claim. In each
case, CD&R and each other Indemnitee seeking indemnification hereunder will
cooperate with the Indemnifying Parties, so long as the Indemnifying Parties are
conducting the defense of the Claim, in the preparation for and the prosecution
of the defense of such Claim, including making available evidence within the
control of CD&R or such Indemnitee, as the case may be, and persons needed as
witnesses who are employed by CD&R or such Indemnitee, as the case may be, in
each case as reasonably needed for such defense and at cost, which cost, to the
extent reasonably incurred, shall be paid by the Indemnifying Parties.
(b) The Indemnifying Parties hereby agree to advance costs and
expenses, including attorney's fees, incurred by CD&R (acting on its own behalf
or, if requested by any such Indemnitee other than itself, on behalf of such
Indemnitee) or any Indemnitee in defending any Claim in advance of the final
disposition of such Claim upon receipt of an undertaking by or on behalf of CD&R
or such Indemnitee to repay amounts so advanced if it shall ultimately be
determined that CD&R or such Indemnitee is not entitled to be indemnified by any
Indemnifying Party as authorized by this Agreement.
(c) CD&R shall notify the Indemnifying Parties in writing of the
amount of any Claim actually paid by CD&R (the "Notice of Payment"). The amount
of any Claim actually paid by CD&R shall bear simple interest at the rate equal
to The Chase Manhattan Bank prime rate as of the date of such payment plus 2%
per annum, from the date any Indemnifying Party receives the Notice of Payment
to the date on which any Indemnifying Party shall repay the amount of such Claim
plus interest thereon to CD&R.
5. Certain Covenants. (a) North Atlantic and Jafra Worldwide each
agrees to cause Jafra US, Jafra Mexico and Jafra Distribution (Mexico) to
perform their respective obligations under this Agreement. The rights of each
Indemnitee to be indemnified under any other agreement, document, certificate or
instrument or applicable law are independent of and in addition to any rights of
such Indemnitee to be indemnified under this Agreement. The rights of each
Indemnitee and the obligations of Jafra US and Jafra Mexico, North Atlantic,
Jafra Worldwide, Jafra Distribution (Mexico) hereunder shall remain in full
force and effect regardless of any investigation made by or on behalf of such
Indemnitee. Jafra US shall maintain the State of Delaware as its state of
incorporation and shall implement and maintain in full force and effect any and
all corporate charter and by-law provisions that may be necessary or appropriate
to enable it to carry out its obligations hereunder to the fullest extent
permitted by Delaware
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corporate law, including without limitation a provision of its certificate of
incorporation eliminating liability of a director for breach of fiduciary duty
to the fullest extent permitted by Section 102(b)(7) (or any successor section
thereto) of the General Corporation Law of the State of Delaware, as it may be
amended from time to time.
(b) Jafra Worldwide hereby asumes and agreees to perform all of
the obligations of CDRJ under this Agreement from and after the Liqidation as if
such obligations were its own obligations.
6. Notices. All notices and other communications hereunder shall
be in writing and shall be delivered by certified or registered mail (first
class postage prepaid and return receipt requested), telecopier, overnight
courier or hand delivery, as follows:
(a) if to CDRJ, Jafra US, North Atlantic, Jafra
Worldwide, Jafra Distribution (Mexico) or
Jafra Mexico, to:
Jafra Cosmetics International, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx, III, Esq.
(b) if to CD&R, to:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
(c) if to the CD&R Fund, to:
Xxxxxxx, Dubilier & Rice
Fund V Limited Partnership
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Partner
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or to such other address or such other person as CDRJ, Jafra US, Jafra Mexico,
CD&R, North Atlantic, Jafra Worldwide, Jafra Distribution (Mexico) or the CD&R
Fund, as the case may be, shall have designated by notice to the other parties
hereto. All communications hereunder shall be effective upon receipt by the
party to which they are addressed. A copy of any notice or other communication
given under this Agreement shall also be given to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxx, Esq.
7. Governing Law. This Agreement shall be governed in all
respects, including validity, interpretation and effect, by the law of the State
of New York, regardless of the law that might be applied under principles of
conflict of laws.
8. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions hereof shall not in any way be
affected or impaired thereby.
9. Miscellaneous. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. This Agreement shall be binding upon and inure
to the benefit of each party hereto and its successors and permitted assigns,
and each other Indemnitee, but neither this Agreement nor any right, interest or
obligation hereunder shall be assigned, whether by operation of law or
otherwise, by CDRJ, Jafra US, North Atlantic, Jafra Worldwide, Jafra
Distribution (Mexico) or Jafra Mexico without the prior written consent of CD&R
and the CD&R Fund. This Agreement is not intended to confer any right or remedy
hereunder upon any person other than each of the parties hereto and their
respective successors and permitted assigns and each other Indemnitee. No
amendment, modification, supplement or discharge of this Agreement, and no
waiver hereunder shall be valid and binding unless set forth in writing and duly
executed by the party or other Indemnitee against whom enforcement of the
amendment, modification, supplement or discharge is sought. Neither the waiver
by any of the parties hereto or any other Indemnitee of a breach of or a default
under any of the provisions of this Agreement, nor the failure by any party
hereto or any other Indemnitee on one or more occasions, to enforce any of the
provisions of this Agreement or to exercise any right, powers or privilege
hereunder, shall be construed as a waiver of any other breach or default of a
similar nature, or as a waiver of any provisions hereof, or any rights, powers
or privileges hereunder. The rights and remedies herein provided are cumulative
and are not exclusive
12
of any rights or remedies that any party or other Indemnitee may otherwise have
at law or in equity or otherwise. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
[The remainder of this page has been left blank intentionally.]
13
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement by their authorized representatives as of the date first above
written.
CDRJ INVESTMENTS (LUX) S.A.
By: /s/ Xxxxx X. Xxxxx, III
----------------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Fonde de pouvoir
JAFRA COSMETICS INTERNATIONAL,
INC.
By: /s/ Xxxxx X. Xxxxx, III
----------------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Vice Chairman
JAFRA COSMETICS INTERNATIONAL
S.A. de C.V.
By: /s/ Xxxxx X. Xxxxx, III
----------------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Assistant Secretary
DISTRIBUIDORA COMERCIAL JAFRA
S.A. de C.V.
By: /s/ Xxxxx X. Xxxxx, III
----------------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Assistant Secretary
JAFRA WORLDWIDE HOLDINGS (LUX)
S.aR.L.
By: /s/ Xxxxx X. Xxxxx, III
----------------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Executive Vice President
00
XXXX XXXXX XXXXXXXX (LUX), S.aR.L.
By: /s/ Xxxxx X. Xxxxx, III
----------------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Fonde de pouvoir
XXXXXXX, DUBILIER & RICE, INC.
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President, Treasurer, and
Assistant Secretary
XXXXXXX, DUBILIER & RICE FUND V
LIMITED PARTNERSHIP
By: CD&R Associates V Limited
Partnership, the General Partner
By: CD&R Investment Associates II,
Inc., its managing general
partner
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President and Treasurer
15
