EXHIBIT 10.32
STOCK SUBSCRIPTION AGREEMENT
STOCK SUBSCRIPTION AGREEMENT, dated as of April 30, 1998, between
CDRJ Investments (Lux) S.A., a Luxembourg Company (the "Company"), and Xxxxxxx,
Dubilier & Rice Fund V Limited Partnership, a Cayman Islands exempted limited
partnership (together with any successor investment vehicle managed by Xxxxxxx,
Dubilier & Rice, Inc., the "Purchaser").
W I T N E S S E T H:
WHEREAS, pursuant to an Acquisition Agreement, dated as of January 26,
1998, as amended from time to time (the "Acquisition Agreement"), between Xxx
Xxxxxxxx Xxxxxxx, the Company, and the other parties thereto, the Company has
agreed to acquire the Jafra cosmetics business of Xxx Xxxxxxxx Xxxxxxx (such
transaction, the "Acquisition");
WHEREAS, concurrently with the closing of the Acquisition, the Company
will issue 769,600 Class A shares of its common stock, par value $2.00 per share
(the "Common Stock"), to the Purchaser and (b) up to an aggregate of 19,903
shares of Common Stock to certain executive officers or key employees of the
Company or its subsidiaries (the "Management Investors"), pursuant to stock
subscription agreements between the Company and the Management Investors;
WHEREAS, the Purchaser desires to subscribe for and purchase, and the
Company desires to sell to the Purchaser, not less than 769,600 shares of Common
Stock, at a subscription price of $100.00 per share;
NOW, THEREFORE, to implement the foregoing and in consideration of the
mutual 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
the Company shall sell to the Purchaser, 769,600 shares of Common Stock (the
"Shares"), at a subscription price of $100.00 per Share, at the Closing provided
for in Section 2(a) hereof.
(b) Consideration. Subject to all of the terms and conditions of this
Agreement, the Purchaser shall deliver to the Company at the Closing referred to
in Section 2(a) hereof (i) all of the shares of the capital stock of CDRJ Europe
Holding Company B.V., a Netherlands company ("Europe Holdco"), and all of the
shares of CDRJ Latin America
Holding Company B.V., a Netherlands Company ("Latin America Holdco"), in
consideration of which the Company shall issue to the Purchaser 769,450 Shares
and (ii) 20,000 ordinary shares, par value $2 per share, of the Company's
capital stock, in exchange for which the Company shall issue to the Purchaser
150 Shares.
2. Closing.
(a) Time and Place. Except as otherwise mutually agreed by the Company
and the Purchaser, the Closing (the "Closing") of the transaction contemplated
by this Agreement shall be held at the offices of Debevoise & Xxxxxxxx, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 7:30 a.m. (New York time) on April 30, 1998.
(b) Delivery by the Company. At the Closing, the Company shall deliver
to the Purchaser a stock certificate registered in such Purchaser's name and
representing the Shares, which certificate shall bear the legend set forth in
Section 4(b).
(c) Delivery by the Purchaser. At the Closing the Purchaser shall
deliver to the Company the consideration referred to in Section 1(b) hereof.
3. Management Rights. For so long as the Purchaser owns any shares of
the Common Stock of the Company and there has not been an underwritten public
offering of the Common Stock (other than a Special Registration, as such term is
defined in the Registration and Participation Agreement referred to in Section
4(g)):
(a) Election of Directors. The Company shall vote, or shall cause the
shares of its subsidiaries to be voted, for the election of persons designated
by the Purchaser ("Purchaser's Designees") to serve as directors of the
subsidiaries of the Company, (collectively, the "Jafra Companies"). If at any
time a vacancy is created on the Board of Directors of any of the Jafra
Companies, by reason of the death, removal or resignation of any of Purchaser's
Designees, the Company shall take such action as may be required promptly to
fill such vacancy with, and shall vote, or shall cause the shares of its
subsidiaries to be voted, for the election of, a person designated by the
Purchaser to fill such position.
(b) Right of Consultation. The Purchaser shall have the right, and the
Company shall cause each of the Jafra Companies to grant to the Purchaser the
right, to consult with and advise the management of the Company and each of the
Jafra Companies, at any time or from time to time, on all matters relating to
the operation of the Company and the Jafra Companies, including, without
limitation, significant changes in management personnel and compensation or
employee benefits, the introduction of new products or new lines of business,
important acquisitions or dispositions of plant and equipment, significant
research and development programs, the purchase or sale of important patents,
trademarks, licenses and concessions, and the proposed compromise of any
significant litigation.
(c) Observation Rights. The Purchaser shall have the right, and the
Company shall cause each of the Jafra Companies to grant to the Purchaser the
right, to have its representatives (in addition to its representatives that are
directors) attend meetings of the Boards of Directors of the Company and each of
the Jafra Companies. The Company shall give, or shall cause each of the Jafra
Companies to give, as appropriate, to the Purchaser (i) at least three days'
notice of each regular meeting of the Board of Directors of each of the Company
and the Jafra Companies, (ii) such notice as is necessary under the
circumstances to enable the Purchaser's representatives to attend
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each special or emergency meeting of the Board of Directors of each of the
Company and the Jafra Companies, (iii) on or prior to the date of each meeting
of the Board of Directors of each of the Company and the Jafra Companies, all
information given to the directors at such meeting and (iv) within 90 days
following each meeting of the Board of Directors of each of the Company and the
Jafra Companies, copies of the minutes of such meeting.
(d) Inspection and Access. The Company shall provide to the Purchaser
true and correct copies of all quarterly and annual financial reports and
budgets prepared by or on behalf of the Company and each of the Jafra Companies
and their subsidiaries, and such other documents, reports, financial data and
other information as the Purchaser may reasonably request. The Company shall
permit any authorized representatives designated by the Purchaser to visit and
inspect any of the properties of the Company or any of its subsidiaries,
including its and their books of account (and to make copies and take extracts
therefrom), and to discuss its and their affairs, finances and accounts with its
and their officers and their current and prior independent public accountants
(and by this provision the Company authorizes such accountants to discuss with
such representatives the affairs, finances and accounts of the Company and its
subsidiaries, whether or not a representative of the Company is present), all at
such reasonable times and as often as the Purchaser may reasonably request.
4. Purchaser's Representations, Warranties and Covenants.
(a) Investment Intention. The Purchaser represents and warrants that it
is acquiring the Shares solely for its own account for investment and not with a
view to or for sale in connection with any distribution thereof in any
transaction or series of transactions that would be in violation of the
securities laws of the United States or any state thereof. The Purchaser agrees
that it 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. The Purchaser further understands, acknowledges and agrees that
none of the Shares may 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, (B) the Purchaser shall have
delivered to the Company an opinion of counsel, which opinion and counsel shall
be reasonably satisfactory to the Company, 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 the Company,
shall have been obtained with respect to such disposition and (ii) such
disposition is pursuant to registration under any applicable state securities
laws or an exemption therefrom.
(b) Legend. The Purchaser acknowledges that the certificate or
certificates representing the Shares shall bear the following legend:
"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 SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS (i) (A) SUCH
DISPOSITION IS PURSUANT TO AN
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EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, (B) THE HOLDER HEREOF SHALL HAVE DELIVERED TO
THE COMPANY AN OPINION OF COUNSEL, WHICH OPINION AND COUNSEL
SHALL BE REASONABLY SATISFACTORY TO THE COMPANY, 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 THE
COMPANY, SHALL HAVE BEEN OBTAINED WITH RESPECT TO SUCH
DISPOSITION AND (ii) SUCH DISPOSITION IS PURSUANT TO REGISTRATION
UNDER ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION
THEREFROM."
"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 THE COMPANY AND CERTAIN STOCKHOLDERS OF THE COMPANY,
A COPY OF WHICH IS LOCATED AT THE PRINCIPAL OFFICE OF THE
COMPANY."
(c) Securities Law Matters. The Purchaser acknowledges receipt of advice
from the Company that (i) the Shares have not been registered under the
Securities Act or qualified under any state 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 the Shares are subsequently
registered 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 the sales of any
securities of the Company and the Company 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 can be made only in limited amounts in
accordance with the terms and conditions of such Rule, if the Purchaser is
deemed to be an "affiliate" of the Company within the meaning of Rule 144, (vi)
the Company does not plan to file reports with the Commission or make public
information concerning the Company available unless required to do so by law or
by the terms of its financing agreements, (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 the Company, (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 the Company indicating that the Shares are subject to
restrictions on transfer set forth in this Agreement and, if the Company 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 the Company 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 the Company may reasonably require to assure compliance with
Rule 144 in connection with such disposition.
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(e) Ability to Bear Risk. The Purchaser represents and warrants that (i)
the financial situation of the Purchaser is such that it 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 it's investment in the
Shares.
(f) Access to Information. The Purchaser represents and warrants that
(i) it has participated in the preparation and negotiation of the Acquisition
Agreement and has carefully reviewed all of the materials furnished to it in
connection with the transaction contemplated thereby and hereby, (ii) it has
been granted the opportunity to ask questions of, and receive answers from,
representatives of the Company concerning the terms and conditions of the
purchase of the Shares and to obtain any additional information that it deems
necessary to verify the accuracy of the information contained in such material,
(iii) its knowledge and experience in financial and business matters is such
that it is capable of evaluating the risks of the investment in the Shares.
(g) Registration and Participation Agreement. The Purchaser acknowledges
and agrees that it shall be entitled to the rights and subject to the
obligations created under the Registration and Participation Agreement, dated as
of the date hereof, among the Company and Purchaser and the other parties
thereto. The Purchaser agrees that, in the event that the Company 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 the Common Stock (other
than as part of such underwritten public offering) during the 20 days prior to
and the 180 days after the effective date of such registration statement.
5. Representations and Warranties of the Company. The Company represents
and warrants to the Purchaser that (a) the Company has been duly incorporated
and is an existing societe anonyme under the laws of Luxembourg, (b) this
Agreement has been duly authorized, executed and delivered by the Company and
constitutes a valid and legally binding obligation of the Company enforceable
against the Company in accordance with its terms, and (c) the Shares, when
issued and delivered in accordance with the terms hereof, will be duly
authorized, 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. The Company
fully anticipates that the Acquisition will be consummated promptly following
the Closing.
6. Covenants of the Company.
(a) Rule 144. The Company agrees that at all times after it has filed a
registration statement 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 the Company (other than (i)
the registration of equity securities of the Company and/or options in respect
thereof to be offered primarily to directors and members of management and
employees of the Company or its direct or indirect subsidiaries, or (ii) the
registration of equity securities and/or options 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 the Company 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), and will take such further action as the
Purchaser may reasonably request, all to the extent required from time to time
to enable the Purchaser to sell Shares without
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registration under the Securities Act within the limitation of the exemptions
provided by (x) Rule 144, as such Rule may be amended from time to time, or (y)
any successor rule or regulation hereafter adopted by the Commission.
(b) State Securities Laws. The Company agrees to use its best efforts to
comply with all state securities or "blue sky" laws applicable to the sale of
the Shares to the Purchaser.
(c) Expenses. Whether or not the Closing occurs, the Company hereby
agrees to pay all expenses relating to this Agreement, including but not limited
to (i) the cost of printing, reproducing and distributing this Agreement, the
Shares and any associated documents, (ii) the Purchaser's reasonable
out-of-pocket expenses incurred in connection with this Agreement, the Shares
and any associated documents, (iii) the reasonable fees and disbursements of
Purchaser's counsel, (iv) the cost of delivering the Shares purchased at the
Closing, insured to the satisfaction of the Purchaser, to such address as the
Purchaser shall designate, (v) all reasonable out-of-pocket expenses relating to
any amendment or modification of, or any waiver, consent or preservation of
rights under, this Agreement and (vi) all other expenses, including counsel's
fees, incurred by the Company in connection with the transactions contemplated
by this Agreement or any other agreements or documents entered into in
connection with the Acquisition.
7. 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 the Company or the Purchaser, as the case
may be, at the following addresses or to such other address as the Company or
the Purchaser, as the case may be, shall specify by notice to the others:
(i) if to the Company, to:
Jafra Cosmetics International, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: General Counsel
(ii) if to the Purchaser, to:
Xxxxxxx, Dubilier & Rice
Fund V Limited Partnership
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Partner
All such notices and communications shall be deemed to have been received on the
date of delivery 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:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Attention: Xxxxxx X. Xxxxx
and
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx, Esq.
(b) Binding Effect; Benefits. This Agreement shall be binding upon and
inure to the benefit of the parties to this Agreement and their respective
successors and assigns. Nothing in this Agreement, express or implied, is
intended or shall be construed to give any person other than the parties to this
Agreement or their respective successors or assigns any legal or equitable
right, remedy or claim under or in respect of any agreement or any provision
contained herein.
(c) Waiver; Amendment.
(i) Waiver. Either party hereto may by written notice to the
other (A) extend the time for the performance of any of the obligations
or other actions of the other under this Agreement, (B) waive compliance
with any of the conditions or covenants of the other contained in this
Agreement and (C) waive or modify performance of any of the obligations
of the other under this Agreement. Except as provided in the preceding
sentence, no action taken pursuant to this Agreement, including, without
limitation, any investigation by or on behalf of either party, shall be
deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, covenants or agreements
contained herein. The waiver by either party hereto 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 no failure by either
party to exercise any right or privilege hereunder shall be deemed a
waiver of such party's rights or privileges hereunder or shall be deemed
a waiver of such party's rights to exercise the same at any subsequent
time or times hereunder.
(ii) Amendment. This Agreement may be amended, modified or
supplemented only by a written instrument executed by the Purchaser and
the Company.
(d) Assignability. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by the Company or the Purchaser without the prior written consent of
the other party.
(e) Applicable Law. This Agreement shall be governed by and construed in
accordance with the law of the State of New York, regardless of the law that
might be applied under principles of conflict of laws.
(f) 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.
(g) 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.
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IN WITNESS WHEREOF, the Company and the Purchaser 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
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
XXXXXXX, DUBILIER & RICE
FUND V LIMITED PARTNERSHIP
By: CD&R Associates V Limited Partnership,
its general partner
By: CD&R Investment Associates II, Inc., its
managing general partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: President, Assistant Secretary
and Assistant Treasurer
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