EXECUTION COPY
EXHIBIT 10.22
ASSIGNMENT, ASSUMPTION AND LIQUIDATION AGREEMENT
ASSIGNMENT, ASSUMPTION AND LIQUIDATION AGREEMENT, dated as of
May 20, 2003 (this "Agreement"), among CDRJ Investments (Lux) S.A., a Luxembourg
societe anonyme ("Parent"), CDRJ North Atlantic (Lux), S.ar.l., a Luxembourg
societe a responsabilite limitee ("North Atlantic" and together with Parent,
"Assignors"), and Jafra Worldwide Holdings (Lux) S.ar.l., a Luxembourg societe a
responsabilite limitee ("Liquidator").
Recitals:
A. North Atlantic is the wholly-owned subsidiary of Parent and
Liquidator is the wholly-owned subsidiary of North Atlantic.
B. Assignors and Liquidator, with certain of their other
affiliates, have initiated a corporate restructuring (the "Restructuring"),
whereby, among other things: (i) certain direct and indirect subsidiaries of
North Atlantic will borrow funds in order to repay certain outstanding
consolidated indebtedness of Parent and North Atlantic, the excess proceeds of
which borrowings will be distributed to North Atlantic and then to Parent; (ii)
after receipt of such proceeds, Parent desires to begin liquidation proceedings
under Luxembourg law in order to liquidate and distribute all of its assets to
its shareholders (the "Liquidation"); (iii) in connection with the Restructuring
and the Liquidation, Parent and North Atlantic desire North Atlantic to
contribute all of its assets and liabilities to Liquidator and Liquidator has
determined to accept such contribution, and (iv) Parent's shareholders desire to
appoint Liquidator to act as the liquidator for the Liquidation and Liquidator
has determined to accept such appointment as provided herein, and, in such
capacity Liquidator will assume all of Parent's contingent and unknown
liabilities that are not satisfied in the Liquidation.
NOW, THEREFORE, to implement the foregoing and in consideration of the
mutual agreements contained herein, the parties hereto agree as follows:
1. Appointment of Liquidator. (a) Parent hereby appoints Liquidator,
effective as of the Effective Time (as defined in Section 4), to act as
the liquidator of Parent in the Liquidation in accordance with
Luxembourg law, and Liquidator hereby accepts such appointment and
agrees to devote such time and attention to providing such services as
is necessary to consummate the Liquidation as promptly as practicable.
Each of Parent and Liquidator acknowledges that the appointment
hereunder and the consummation of the Liquidation is subject to the
approval of Parent's shareholders in accordance with applicable law.
(b) Liquidator shall have the broadest powers to carry out its
mandate, and in particular all the powers provided for by article 144
and following of the law of August 10, 1915 relating to commercial
companies, as amended, without having to ask for authorization of the
general meeting of shareholders in the cases provided for by law. In
particular and without limitation, Liquidator shall have
the power and authority in its sole discretion (i) to assign or
transfer contracts to which Parent is a party to other related or
unrelated companies, (ii) to settle Parent's debts and make provision
therefor, (iii) to declare and pay one or more liquidating
distributions to Parent's shareholders of Parent's projected assets in
excess of projected liabilities prior to the consummation of the
Liquidation, and (iv) to call, adjourn and postpone general meetings of
the Parent's shareholders as Liquidator may deem necessary. There shall
be no obligation for Liquidator to draw up an inventory; and Liquidator
may, as it deems necessary or expedient in its sole discretion,
delegate to one or several agents such powers and for such period as it
determines. Notwithstanding anything to the contrary herein, nothing
herein shall be deemed to have granted to the Liquidator the right to
vote the shares of Parent at any general or extraordinary meeting of
Parents' shareholders. The Liquidator hereby agrees to call one or more
meetings of such shareholders at the request of the holders of 20% or
more of the outstanding voting stock of Parent.
2. Transfer of North Atlantic Assets. In accordance with applicable law,
North Atlantic hereby assigns and will transfer at the Effective Time,
and Liquidator hereby accepts from North Atlantic, and at the Effective
Time will receive, all of the right, title and interest of North
Atlantic in and to all of its assets, known and unknown, wherever
located, including, without limitation, its right, title and interest
in and to the following: (a) 1,000 shares of common stock of Jafra -
Cosmetics International, Inc., par value $0.01 per share, constituting
all of the issued and outstanding shares of Jafra US, (b) 40 shares of
common stock of CDRJ Latin American Holding Company B.V., (c) all of
the registered trademarks and other intellectual property of North
Atlantic, and (d) all of the cash on hand in the bank accounts of North
Atlantic (estimated at the Effective Time to be approximately
$30,000). The assignment and assumption hereunder will be effected as a
contribution to the share premium of Liquidator in exchange for
additional shares of capital stock of Liquidator.
3. Assumption of North Atlantic and Parent Obligations and Liabilities.
Liquidator hereby assumes and agrees to pay, honor and discharge, when
due and otherwise in accordance with the relevant governing agreements
and instruments, as of the Effective Time (i) all liabilities of North
Atlantic existing as of the Effective Time, whether known or unknown,
contingent or matured and (ii) all liabilities of Parent existing as of
the termination of the Liquidation that are unknown, contingent or
otherwise unsatisfied as of the close of the Liquidation.
4. Effective Time. For purposes of this agreement, term "Effective Time"
means May 20, 2003 at 4.15 p.m., Luxembourg time, or such later date or
time immediately following the distribution of proceeds by North
Atlantic to Parent as described in clause (i) of Recital B.
5. Further Assurances. North Atlantic hereby agrees that, from time to
time at the request of Liquidator, it will execute and deliver such
further instruments of
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conveyance, transfer and assignment and will take such other action as
Liquidator may reasonably request in order to more effectively convey
and transfer to Liquidator the Assets to be transferred hereunder.
6. Amendments and Waivers. This Agreement may be amended and the
observance of any provision hereof may be waived (either generally or
in a particular instance and either retroactively or prospectively)
only with the written consent of the parties affected thereby.
7. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto.
8. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly
given to any party when delivered by hand, when delivered by telecopier
and confirmed, when delivered by overnight courier or when mailed,
first-class postage prepaid, (a) if to Liquidator, to Liquidator at the
address set forth below Liquidator's signature, or to such other
address as Liquidator shall have furnished to the Assignors in writing,
and (b) if to an Assignor, to such Assignor at the address set forth
below such Assignor's signature, or to such other address as such
Assignor shall have furnished to the Liquidator in writing.
9. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE LUXEMBOURG.
10. Descriptive Headings. The descriptive headings in this Agreement are
for convenience of reference only and shall not be deemed to alter or
affect the meaning or interpretation of any provision of this
Agreement.
11. Entire Agreement. This Agreement contains the entire agreement of the
parties with respect to the subject matter of this Agreement, and there
are no representations, covenants or other agreements except as stated
or referred to herein.
12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of
which shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the Assignors and Liquidator have caused
this Agreement to be executed by its authorized representative effective as of
the date first above written.
ASSIGNORS:
CDRJ INVESTMENTS (LUX) S.A.
By: /s/ Xxxxxxx X. XxXxxxxxxx
-----------------------------
Name: Xxxxxxx X. XxXxxxxxxx
Title: Chief Financial Officer
Address:
CDRJ NORTH ATLANTIC (LUX) S.aR.L.
By: /s/ Xxxxxxx X. XxXxxxxxxx
------------------------------
Name: Xxxxxxx X. XxXxxxxxxx
Title: Chief Financial Officer
Address:
LIQUIDATOR:
JAFRA WORLDWIDE HOLDINGS (LUX)
S.aR.L.
By: /s/ Xxxx Xxxxxxxx
-----------------------------
Name: Xxxx Xxxxxxxx
Title: Treasurer, fonde de pouvoir
Address:
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