EXHIBIT 10.43
ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT
ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT, dated as of February 6,
2004 (this "Agreement"), among (i) Xxxxxxx XxXxxxxxxx ("Assignor"), (ii) Xxxx X.
Xxxxxx, Xx., as trustee (together with his successor trustees, if any, the
"Trustee") of each of the following sub-trusts of the XxXxxxxxxx Permanent Trust
of 2000 # 2 created under Declaration of Trust signed by the Trustee on November
17, 2000: (a) sub-trust for the benefit of Xxxxxxx XxXxxxxxxx (the "Daniela
Sub-Trust"), and (b) sub-trust for the benefit of Xxxxx XxXxxxxxxx (the "Carlo
Sub-Trust") (each of the Daniela Sub-Trust and the Carlo Sub-Trust, an
"Assignee" and, together, the "Assignees"), and (iii) CDRJ Investments (Lux)
S.A., a Luxembourg societe anonyme (in liquidation) ("Parent") here represented
by Jafra Worldwide Holdings (Lux) S.ar.l in its capacity as liquidator of Parent
("Liquidator").
WHEREAS (i) Assignor and Parent are parties to (x) a Management Stock
Subscription Agreement, dated as of September 30, 1998 (the "1998 Subscription
Agreement"), and (y) a Management Stock Subscription Agreement, dated as of
August 9, 2000 (the "2000 Subscription Agreement," and, together with the 1998
Subscription Agreement, both attached hereto as Exhibit A, the "Subscription
Agreements"); (ii) Assignor is a beneficiary of, and bound by, certain
provisions of the Registration and Participation Agreement, dated as of April
30, 1998, between Parent and Xxxxxxx, Dubilier & Rice Fund V Limited
Partnership, a Cayman Islands exempted limited partnership ("CD&R Fund V"), a
copy of which is attached hereto as Exhibit B (the "Registration Agreement"), as
a Management Purchaser (as defined therein); and (iii) Assignor and Jafra
Cosmetics International, Inc., a Delaware corporation and an indirect wholly
owned subsidiary of Parent ("JCI"), are party to the Master Bailment Agreement,
dated as of September 30, 1998, a copy of which is attached hereto as Exhibit C
(the "Bailment Agreement" and, together with the Subscription Agreement and the
Registration Agreement, the "Share Agreements").
WHEREAS, (i) pursuant to the 1998 Subscription Agreement, Assignor
purchased from Parent 1,738 Class A voting shares, par value $2.00 per share, of
Parent (the "1998 Shares"), and (ii) pursuant to the 2000 Subscription
Agreement, Assignor purchased from Parent, 632 Class A voting shares, par value
$2.00 per share, of Parent (the "2000 Shares" and, together with the 1998
Shares, the "Shares");
WHEREAS, (i) on December 20, 2000, Assignor gave 80 Shares to each
Assignee pursuant to an Assignment, Assumption, and Consent Agreement dated as
of December 20, 2000, among Assignor, the Trustee, the Assignees, and Parent and
consented to by CD&R Fund V, (ii) on February 23, 2001, Assignor gave an
additional 80 Shares to each Assignee pursuant to an Assignment, Assumption, and
Consent Agreement dated as of February 23, 2001, among Assignor, the Trustee,
the Assignees, and Parent and consented to by CD&R Fund V, (iii) on February 1,
2002, Assignor gave
an additional 60 Shares to each Assignee pursuant to an Assignment, Assumption,
and Consent Agreement dated as of February 1, 2002, among Assignor, the Trustee,
the Assignees, and Parent and consented to by CD&R Fund V, and (iv) on October
19, 2003, Assignor gave an additional 130 shares to each Assignee pursuant to an
Assignment, Assumption and Consent Agreement dated as of October 19, 2003 among
the Assignor, the Trustee, the Assignees and Parent and consented to by CD&R
Fund V, so that Assignor now owns, in the aggregate, 1,670 Shares and the
Assignees hold, in the aggregate, 700 Shares (such 700 Shares, the "Prior
Transfer Shares");
WHEREAS, Assignor now wishes to give to each Assignee, and each Assignee
wishes to accept from Assignor, in addition to the Prior Transfer Shares, the
number of Shares set forth opposite such Assignee's name on Schedule I hereto
(the "Transfer Shares"), and all rights and obligations with respect thereto
under the Share Agreements;
WHEREAS, Assignor has requested that Parent consent to his transfer of
the Transfer Shares to Assignees; and
WHEREAS, Parent is willing to grant such consent (i) in reliance upon
the representations, warranties and acknowledgments of Assignor and each
Assignee in this Agreement and (ii) subject to the terms and conditions
contained in this Agreement.
Now, THEREFORE, Assignor, the Trustee, each Assignee and Parent agree as
follows:
1. Assignment. Assignor does hereby give, transfer and assign to each
Assignee the number of Transfer Shares set forth opposite such Assignee's name
on Schedule I hereto and all of Assignor's rights and obligations under the
Share Agreements with respect to the Transfer Shares transferred to such
Assignee.
2. Assumption. Each Assignee hereby accepts the Transfer Shares and
assumes all of Assignor's rights and obligations under the Share Agreements with
respect to the Shares transferred to such Assignee. This assumption by Assignees
shall not relieve Assignor of any of its rights or obligations under the Share
Agreements which shall continue in full force and effect.
3. Representations and Warranties of Assignor, the Trustee and the
Assignees. Assignor, the Trustee and each Assignee jointly and severally
represent and warrant to each other and to Parent as follows:
(a) Each Assignee is a duly formed, validly existing trust under the
laws of the State of California and the Trustee has all requisite power and
authority to execute, deliver and bind Assignees under this Agreement. The
beneficiaries of each Assignee consist solely of persons who are children,
grandchildren, parents, parents-in-law or step-parents-law, or the spouse of the
Assignor.
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(b) Parent has been provided with a true and correct copy of the trust
agreement for each Assignee. Each trust agreement contains a provision that the
Transfer Shares may not be directly or indirectly sold, transferred, assigned,
conveyed, distributed, pledged, mortgaged, encumbered, hypothecated or otherwise
disposed of ("Transfer") (including, but not limited to, by way of a Transfer of
Transfer Shares or a distribution by the Trustee of a direct or indirect
interest in the Transfer Shares), without the prior written consent of Parent
(which consent may be withheld in the sole and absolute discretion of Parent)
prior to a Public Offering (as defined in the Subscription Agreements), except
as expressly permitted by the Subscription Agreements.
(c) The Trustee is competent and capable of entering into this Agreement
and has duly executed and delivered this Agreement on behalf of himself and each
Assignee and, assuming the due execution and delivery by Parent and Assignor,
this Agreement constitutes a legal, valid and binding obligation of the Trustee
and each Assignee, enforceable against the Trustee and each Assignee in
accordance with its term.
(d) Assignor is competent and capable of entering into this Agreement
and is doing so of his free will and has duly executed and delivered this
agreement and, assuming the due execution and delivery by Parent, the Trustee
and each Assignee, this Agreement constitutes the legal, valid and binding
obligation of Assignor, enforceable against Assignor in accordance with its
terms.
(e) The execution and delivery of this Agreement by each Assignee and
the performance of its obligations hereunder will not violate or conflict with
the organizational documents or other governing documents of such Assignee
(f) The execution and delivery by Assignor, the Trustee or any Assignee
of this Agreement and the performance of their respective obligations hereunder
will not violate, conflict with or constitute a default under any agreement or
instrument or any applicable law to which any of Assignor, any Assignee or the
Trustee is subject or by which any of their respective assets are bound.
(g) The assignment and assumption made hereunder is a gift, and no
Assignee has provided, and Assignor has not received, any consideration in
conjunction with the assignment contemplated by this Agreement.
(h) The transfers of the Transfer Shares hereunder (i) are in compliance
with all applicable United States, State and foreign securities laws (including,
but not limited to, the U.S. Securities Act of 1933, as amended, "Securities
Laws") and (ii) do not require any registrations or filings by Parent, JCI or
any affiliate thereof with any governmental or regulatory authority.
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(i) The Transfer Shares which each Assignee is acquiring from Assignor
are being acquired by each Assignee for investment without a view to
distribution, within the meaning of U.S. Securities Act of 1933, as amended, or
registered or qualified under other applicable Securities Laws, and will not be
sold, transferred, assigned, pledged or hypothecated in the absence of an
effective registration statement for the Transfer Shares under Securities Laws
or an applicable exemption from the registration requirements of Securities
Laws. The Transfer Shares which each Assignee is acquiring from Assignor may not
be sold or otherwise disposed of in any manner which would constitute a
violation of any Securities Laws.
4. Acknowledgments and Covenants of Assignees. The Trustee and each
Assignee hereby expressly acknowledge, covenant and agree to the following:
(a) The Trustee, on behalf of each Assignee, has read each of the Share
Agreements.
(b) Assignees are taking the Transfer Shares subject to the terms and
conditions that would apply to the Transfer Shares if Assignor had continued to
hold them, including, but not limited to, (i) substantial contractual
restrictions on Transfer, including a right of first refusal in favor of Parent
and CD&R Fund V, (ii) successive repurchase rights of Parent and CD&R Fund V in
the event of any termination of Assignor's employment with JCI or its
affiliates, (iii) an obligation to sell its Transfer Shares to third parties
under certain circumstances, (iv) the requirement that certificates representing
the Transferred Shares be held by JCI under the Bailment Agreement, and (v) the
other terms of the Share Agreements.
(c) The Transfer Shares have not been registered under the Securities
Laws, shall bear a restrictive legend as set forth in the Subscription
Agreement, and may not be transferred except in compliance with all applicable
Securities Laws.
(d) No Transfer Share shall be directly or indirectly Transferred
(including but not limited to, by way of a Transfer of Transfer Shares or a
distribution by the Assignee of a direct or indirect interest in the Transfer
Shares), without the prior written consent of Parent (which consent may be
withheld in the sole and absolute discretion of Parent) prior to a Public
Offering, except as expressly permitted by the Subscription Agreement.
5. Consent of Parent. In reliance upon (i) the representations,
warranties, acknowledgments, covenants and agreements of Assignor, the Trustee,
and each Assignee in this Agreement and (ii) the terms and conditions agreed to
by the Trustee, Assignor and each Assignee in this Agreement, Parent consents to
the transfer of the Transfer Shares from Assignor to each Assignee in the
amounts set forth on Schedule I hereto (the "Approved Transfer"). Section 4 of
each Subscription Agreement is hereby amended to the extent necessary to permit
the Approved Transfer on the terms and
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conditions set forth herein. The Subscription Agreements shall otherwise
continue in full force and effect.
6. 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.
7. Successors and Assigns; Benefits. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the parties to this
Agreement and their respective successors and assigns. Except as provided in
subsection 4(b) of this Agreement, nothing in this Agreement, express or
implied, shall be construed to give any person other than the parties to this
Agreement or their successors or assigns any legal or equitable right, remedy or
claim under or in respect of any agreement or provisions contained herein.
Neither this Agreement nor any right, remedy, obligation or liability hereunder
or by reason of this Agreement may be assigned by Assignor, the Trustee or any
Assignee without the prior written consent of Parent.
8. Further Assurances. At any time or from time to time after the date
hereof, Assignor, the Trustee and each Assignee shall execute, acknowledge and
deliver any further assignments, assumptions, consents and other instruments or
documents and take all such further action as any other party may reasonably
request in order to evidence the consummation of the transactions contemplated
hereby.
9. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
CDRJ INVESTMENTS (LUX) S.A.(In Liquidation)
By: /s/ XXXXX X. XXXXX, III
-----------------------------------------
Liquidator
Here represented by
Name: Xxxxx X. Xxxxx, III
Title: Fonde de Pouvior
ASSIGNOR:
By: /s/ Xxxxxxx XxXxxxxxxx
----------------------------------------
Name: Xxxxxxx XxXxxxxxxx
ASSIGNEES:
Sub-trust of the XxXxxxxxxx Permanent Trust
of 2000 No. 2 created under Declaration of
Trust dated November 17, 2000, for the
benefit of Xxxxxxx XxXxxxxxxx
By: /s/ Xxxx X. Xxxxxx, Xx.
---------------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Trustee
Sub-trust of the XxXxxxxxxx Permanent Trust
of 2000 # 2 created under Declaration of
Trust dated November 17, 2000, for the
benefit of Xxxxx XxXxxxxxxx:
By: /s/ Xxxx X. Xxxxxx, Xx.
---------------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Trustee
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ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges and consents to the assignment and
assumption set forth above.
XXXXXXX, DUBILIER & RICE FUND V
LIMITED PARTNERSHIP
By: CD&R Associates V Limited Partnership,
its general partner
By: CD&R Investment Associates, Inc.
its managing general partner
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Treasurer and Assistant
Secretary
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Schedule I
Assignee Number of Transfer Shares Assigned
-------- ----------------------------------
Sub-trust of the XxXxxxxxxx Permanent Trust
of 2000 # 2 created under Declaration of
Trust dated November 17, 2000, for the
benefit of Xxxxxxx XxXxxxxxxx: 130
Sub-trust of the XxXxxxxxxx Permanent Trust
of 2000 # 2 created under Declaration of
Trust dated November 17, 2000, for the
benefit of Xxxxx XxXxxxxxxx: 130
Total Number of Transfer Shares Assigned: 260
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Exhibit A
(Management Stock Subscription Agreements, dated as of
September 30, 1998 and August 9, 2000.)
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Exhibit B
(Registration and Participation Agreement, dated as of April 30, 1998.)
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Exhibit C
(Master Bailment Agreement, dated as of September 30, 1998.)
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