EXHIBIT 10.29
FORM OF CONTRIBUTION AGREEMENT AND POWER OF ATTORNEY
CONTRIBUTION AGREEMENT, dated as of May ___, 2003 (this
"Contribution Agreement"), among CDRJ Investments (Lux) S.A., a Luxembourg
societe anonyme ("CDRJ"), Jafra Worldwide Holdings (Lux) S.ar.l., a Luxembourg
societe a responsabilite limitee and an indirect wholly-owned subsidiary of CDRJ
("Jafra Worldwide"), and the stockholder of CDRJ set forth on the signature page
hereof (the "Stockholder" and, together with the other Stockholders of CDRJ set
forth on Schedule 1, the "Stockholders").
RECITALS
A. CDRJ and its subsidiaries have initiated a corporate
reorganization whereby, among other things, certain CDRJ indirect subsidiaries
will borrow funds in order to repay certain outstanding consolidated
indebtedness and distribute remaining proceeds following the borrowing to their
respective parent companies and, ultimately, to CDRJ (the "Reorganization").
B. Upon the consummation of the Reorganization and the
receipt of such remaining proceeds by CDRJ, the Stockholders will vote to begin
liquidation proceedings of CDRJ under Luxembourg law and appoint Jafra Worldwide
as the liquidator of CDRJ to wind up its affairs (the "Liquidation"). In
connection with that appointment, the Stockholder desires to appoint Jafra
Worldwide as such Stockholder's attorney-in-fact as provided herein.
C. It is expected that following the initiation of the
Liquidation, CDRJ will make a preliminary distribution to the Stockholders of a
portion of the proceeds remaining following the Reorganization, reserving an
estimated amount thereof to satisfy outstanding liabilities of CDRJ. Upon the
conclusion of the Liquidation, and the approval of the Stockholders, CDRJ will
be liquidated and dissolved, and distribute to each Stockholder such
Stockholder's pro rata portion of any cash of CDRJ following the full
satisfaction of all of its outstanding liabilities, together with such
Stockholder's pro rata portion of an equity interest in CDRJ North Atlantic
(Lux) S.ar.l., or any successor entity that is the sole subsidiary of CDRJ.
D. In connection with the Reorganization and the
Liquidation, the Stockholders desire to provide for contribution by each of the
Stockholders in respect of any loss, claim, damage, liability (including
expenses and attorneys' fees incurred in defending against, preparing for, or
otherwise in connection with any action, claim, proceeding or investigation)
("Contribution Loss") arising out of, related to or resulting from the
Reorganization or the Liquidation that may at any time be asserted against or
incurred by the Stockholders (or any one of them), as the case may be.
NOW, THEREFORE, the parties hereto agree as follows:
1. Appointment.
Effective as of the date hereof, the Stockholder hereby
irrevocably constitutes and appoints Jafra Worldwide, with full power of
substitution, the true and lawful attorney-in-fact of the Stockholder, with full
power and authority, in the name and on behalf of the Stockholder to: (i) retain
legal counsel on behalf of the Stockholder in connection with any and all
matters related to the Reorganization, the Liquidation or referred to in this
Agreement and other agreements, documents and instruments relating thereto; (ii)
to commence, maintain, defend and settle any claim on behalf of the Stockholder
in respect of the Reorganization, the Liquidation or this Agreement; (iii) to
make, exchange, acknowledge and deliver all such other orders, receipts,
notices, requests, instructions, certificates, letters and other writings, and
in general to do all things and to take all actions that Jafra Worldwide may
consider necessary or appropriate in connection with or to carry out the
Reorganization and the Liquidation, as fully as could the Stockholder if
personally present and acting; and (iv) to do any and all other things and to
execute any and all other documents as Jafra Worldwide, in its sole judgment,
shall deem necessary or appropriate in order to consummate the Reorganization
and the Liquidation. Jafra Worldwide shall have full power to make and
substitute any one or more attorneys-in-fact in its place and stead, and the
undersigned hereby ratifies and confirms all that Jafra Worldwide or any such
substitute or substitutes shall do under this Agreement. Notwithstanding the
foregoing, Jafra Worldwide acknowledges that nothing herein shall be deemed to
constitute a proxy over the shares of CDRJ to be voted at any general or
extraordinary meeting of the Stockholders.
2. Rights to Contribution.
(a) General. If the Stockholder is or becomes obligated
to make a payment required to satisfy any judgment entered against the
Stockholders (or any one of them), or with respect to any settlement entered
into on behalf of the Stockholders by Jafra Worldwide in connection with the
Reorganization or the Liquidation, or make any other payment in respect of any
Contribution Loss, such Stockholder agrees to contribute, to the extent not
prohibited by applicable law, an amount (a "Contribution Payment") equal to that
portion of such Contribution Loss as the amount of such Stockholder's fully
diluted general ratable portion set forth opposite such Stockholder's name on
Schedule 1 hereto under the column entitled "General Ratable Portion" (the
"General Ratable Portion"), subject to a maximum contribution equal to the
aggregate value of distributions such Stockholder received in the Liquidation.
(b) Jafra Worldwide. The Stockholder hereby agrees to
release Jafra Worldwide from and against any Contribution Loss or other
obligation arising out of the performance by Jafra Worldwide of its
responsibilities as liquidator in the Liquidation
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and as such Stockholder's attorney-in-fact hereunder (other than Contribution
Losses arising out of gross negligence or willful misconduct by Jafra
Worldwide).
3. Procedures for Contribution.
(a) Promptly after receipt by the Stockholder or Jafra
Worldwide of a notice of any claim, including a third party claim, in respect of
which a claim may be made against any of Jafra Worldwide, or the Stockholders
(or any one of them), as the case may be, in respect of any Contribution Loss,
the Stockholder shall notify Jafra Worldwide, and Jafra Worldwide shall notify
the other Stockholders, in writing of such claim.
(b) Promptly upon becoming obligated, whether pursuant to
a valid judgment against the Stockholders (or any one of them) entered by a
court of competent jurisdiction, a settlement voluntarily entered into on behalf
of the Stockholders by Jafra Worldwide or otherwise, to make a payment in
respect of a Contribution Loss (a "Determination"), Jafra Worldwide shall notify
the Stockholders in writing of such Determination.
(c) As soon as practicable following the Determination,
Jafra Worldwide shall (i) calculate the amount of the payment required to be
made in respect of the Contribution Loss that is required to be made pursuant to
such Determination and the amount of the Contribution Payment (if any) of each
Stockholder required to be made pursuant to Section 2(a) and (ii) inform the
Stockholders in writing of the aggregate amount of such Contribution Loss, each
Stockholders' Contribution Payment (if any) in respect of such payment and the
date upon which such payment shall be payable (the "Payment Date"), which date
shall not be less than five business days from the date of such notice.
(d) On or prior to the Payment Date, each of the
Stockholders shall either (i) deliver to Jafra Worldwide or an administrator
named by Jafra Worldwide a certified or bank check in the amount of such
Stockholders' Contribution Payment or (ii) transfer funds to Jafra Worldwide or
the administrator in the amount of such Stockholders' Contribution Payment.
(e) If a Stockholder does not comply with the provisions
of Section 3(d), the other Stockholders may seek such remedies against such
non-complying Stockholder as are available to them to recover any amounts owed
them pursuant to this Agreement.
4. Liquidity.
The Stockholder shall endeavor to maintain such liquid assets
as are reasonably likely to be sufficient to pay his or her General Ratable
Portion of Obligations
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as they may be incurred and to make provision for such Stockholder's obligations
hereunder in such Stockholder's estate planning such that Stockholder's heirs
are reasonably likely to be able to satisfy such Stockholder's obligations
hereunder.
5. Miscellaneous.
(a) Notices. All notices, requests, demands and other
communications required to be given under this Agreement shall be in writing and
shall be deemed to have been duly given if delivered personally or mailed,
certified or registered mail with postage prepaid, return receipt requested, or
sent by telex, telegram or telecopier, to a Stockholder at such Stockholder's
address listed on Schedule 1 hereto, or to such other person or address as any
party shall specify by notice in writing to each of the parties and to the other
Stockholders. All such notices, requests, demands and communications shall be
deemed to have been received on the earlier of the date of delivery and the
third business day after the dispatch thereof.
(b) Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof.
(c) Binding Effect; Benefit. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
heirs, successors, permitted assigns and estates.
(d) Assignment. This Agreement shall not be assignable by
any party hereto without the prior written consent of the other parties hereto.
(e) Headings. The headings contained in this Agreement
are inserted for reference purposes only and shall not affect the meaning and
interpretation of this Agreement.
(f) Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to an original and all of
which together shall constitute one and the same instrument.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED IN
ALL RESPECTS BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAWS RULES THEREOF, EXCEPT TO THE EXTENT THE LAWS OF LUXEMBOURG
MANDATORILY APPLY.
(h) Third Party Benefits. Nothing in this Agreement shall
confer any rights upon any person or entity other than the parties hereto, the
other Stockholders and their respective heirs, successors and permitted assigns.
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(i) Amendment; Waivers. No amendment, modification or
discharge of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, discharge or waiver is sought. Any
such waiver shall constitute a waiver only with respect to the specific matter
described in such writing and shall in no way impair the rights of the party
granting such waiver in any other respect or at any other time. Neither the
waiver by any of the parties hereto of a breach of or a default under any of the
provisions of this Agreement, nor the failure by any of the parties, on one or
more occasions, to enforce any of the provisions of this Agreement or to
exercise any right 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 of such
provisions, rights or privileges hereunder.
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IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be executed as of the date first above written.
CDRJ INVESTMENTS (LUX) S.A.
By: ____________________________
Name: Xxxxx X. Xxxxx, III
Title: Fonde de pouvoir
JAFRA WORLWIDE HOLDINGS (LUX)
S.aR.L.
By: ____________________________
Name: Xxxxx X. Xxxxx, III
Title: Fonde de pouvoir
_________________________________
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Schedule 1
Stockholders
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Name Address General Ratable Portion
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Other Stockholders have been intentionally omitted
