EXHIBIT 4.17
TRUE COPY
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of the deed of:
PLEDGE
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in the capital of:
CDRJ Europe Holding Company B.V. and
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CDRJ Latin America Holding Company B.V.
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Deed of: 30 April 1998.
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DEED OF PLEDGE
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On this, the thirtieth day of April one thousand nine hundred and ninety-eight,
appeared before me, Xxxxxx Xxxxxxxx xxx Xxx, assistant civil law notary,
residing at Utrecht, hereinafter to be referred to as civil law notary, acting
as a substitute for Xxxxx Xxxxxx Xxxxxxxxx, civil law notary, practising at
Amsterdam:
1. Xxxx Xxxxxx Xxxxx, assistant civil law notary residing at 0000 XX
Xxxxxxxxx, Xxxxx Xxxxxxxxxxxxxxxxx 000 XX, born at De Bilt on the
eighteenth day of December one thousand nine hundred and seventy-one,
holder of driver's licence number 0000000000, single and non-registered
partner, acting for the purposes hereof as attorney - duly authorized in
writing - of each of:
i. CDRJ Acquisition (to be renamed in: Jaffra Cosmetics International,
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Inc.), a corporation under the laws of the State of Delaware, United
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States of America, having its registered office at c/o Corporation
Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx XX 00000, xxx Xxxxxx
Xxxxxx of America, hereinafter referred to as the "Pledgor I"; and
ii. CDRJ North Atlantic (Lux) S.aa.X.X., a limited liability company under
the laws of Luxembourg, whose registered office is at 00, Xxx Xxxxxxx
Xxxx, 0000 Xxxxxxxxxx, Xxxxxxxxxx, hereinafter referred to as the
"Pledgor II".
The Pledgor I and the Pledgor II hereinafter also collectively referred to
as: the "Pledgor".
2. Xxxxxx Xxxxx ten Have, lawyer, residing at 0000 XX Xxxxx, Xx Xxxxxx 00,
born at Leiden on the twenty-second day of March one thousand nine hundred
and sixty-eight, holder of passport number L758921, married, acting for the
purposes hereof as attorney duly- authorized in writing -of each of:
i. CDRJ Europe Holding Company B.V.,
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a private company with limited liability under the laws of The
Netherlands ("besloten vennootschap met
beperkte aansprakelijkheid"), having its corporate seat at
Amsterdam and its principal place of business at 0000 XX Xxxxxxxxx,
Xxxxxxxxxxx 000, hereinafter referred to as: "Company I"; and
ii. CDRJ Latin America Holding Company B.V., a private company with
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limited liability under the laws of The Netherlands ("besloten
vennootschap met beperkte aansprakelijkheid"), having its corporate
seat at Amsterdam and its principal place of business at 0000 XX
Xxxxxxxxx, Xxxxxxxxxxx 000, hereinafter referred to as: "Company II",
Company I and Company II hereinafter also collectively referred to as:
the "Companies
iii. Credit Suisse First Boston, a banking organization, organized and
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existing under the laws of Switzerland, having an office at Xxxxxx
Xxxxxxx Xxxxxx, Xxx Xxxx, xxx Xxxxxx Xxxxxx xx Xxxxxxx, acting as
Collateral Agent under the Credit Agreement as hereinafter defined -
hereinafter referred to as: the "Pledgee".
The persons appearing, acting in said capacities declared and said as
follows:
WHEREAS:
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(a) by notarial deed of contribution and transfer of shares, executed on
this, the thirtieth day of April one thousand nine hundred and ninety-
eight, before the undersigned civil-law notary, Pledgor I acquired the
legal and beneficial title to all issued and outstanding shares in the
capital of Company I, such deed also containing the acknowledgement of
the above acquisition by Company I;
(b) by notarial deed of contribution and transfer of shares, executed on
this, the thirtieth day of April one thousand nine hundred and ninety-
eight, before the undersigned civil-law notary, the Pledgor II
acquired the legal and beneficial title to all issued and outstanding
shares in the capital of Company II, such deed also containing the
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acknowledgement of the above acquisition by Company II;
(c) inter alia - the Pledgor I is signatory to that certain credit
agreement dated as of this, the thirtieth day of April one thousand
nine hundred and ninety-eight - a photocopy of which is attached to
this Deed - with among other parties, the Secured Party (as the same
may be amended, supplemented or otherwise modified from time to time,
hereinafter referred to as the "Credit Agreement") under the terms of
which - inter alia -the Pledgee agreed to make available certain loans
- inter alia - to the Pledgor I, as defined in the Credit Agreement,
all of such loans on the terms and for the purposes as defined in the
Credit Agreement;
(d) inter alia - the Pledgor is signatory to that certain pledge agreement
dated as of this, the thirtieth day of April one thousand nine hundred
and ninety-eight - a photocopy of which is attached to this Deed -
with among other parties, the Pledgee (as the same may be amended,
supplemented or otherwise modified from time to time, hereinafter
referred to as the "Pledge Agreement") under the terms of which the
Pledgor agreed to execute this Deed in order to secure the Obligations
as defined in the Pledge Agreement;
NOW THEREFORE on the terms and subject to the conditions of this Deed, the
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parties hereto agree as follows:
Section 1 - Defined Terms and Related Matters
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Capitalized terms not otherwise defined in this Deed shall for all purposes
of this Deed, including the preceding recitals, have the same meaning as
the terms defined in the Credit Agreement and the Pledge Agreement.
Section 2 - Agreement to Pledge
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In order to secure the payment and performance, as the case may be, in full
of the Obligations (as defined in the Pledge Agreement) of the respective
Pledgor I or Pledgor II, as the case may be, and in pursuance of the
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provisions in the Credit Agreement and the Pledge Agreement, Pledgor I and
Pledgor II respectively and the Pledgee hereby agree to create a first
ranking right of pledge ("eerste pandrecht") in favour of the Pledgee, as
meant in Section 3:227 and following of the Netherlands' Civil Code over
twenty-four (24) ordinary shares, having a par value of one thousand Dutch
Guilders (NLG 1,000.--) each, numbered 1 up to and including 24, in the
share capital of Company I (hereinafter referred to as: the "Shares I")
and over forty (40) ordinary shares having a par value of one thousand
Dutch Guilders (NLG 1,000.--) each, numbered 1 up to and including 40, in
the share capital of Company II (hereinafter referred to as: the "Shares
II") respectively. The Shares I and the Shares II hereinafter also
collectively referred to as the "Shares". The provisions of the Credit
Agreement and the Pledge Agreement, shall - to the extent permitted under
Netherlands' law - mutatis mutandis be applicable, in so far as not
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deviated therefrom by this Deed.
Section 3 - Creation of Right of Pledge
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3.1 In pursuance of the provisions in Section 2 hereof, Pledgor I and
Pledgor II respectively hereby grant to the Pledgee a first ranking
right of pledge ("eerste pandrecht") over the Shares I and the Shares
II respectively in accordance with Section 3:236, paragraph 2, in
conjunction with Sections 3:98 and 2:196 of the Netherlands' Civil
Code, and the Pledgee hereby accepts such first ranking rights of
pledge.
3.2 In pursuance of the provisions in Section 2 hereof, Pledgor I and
Pledgor II respectively pledge by anticipation and/or undertake to
pledge any and all proceeds of the Shares I and Shares II respectively
including, without limitation, all additional shares, shares
receivable or received by virtue of a stock split, or any other shares
receivable or received in exchange for any and all of the Shares I and
the Shares II respectively, dividends, cash, instruments, warrants and
other property from time to time received, receivable or otherwise
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distributed in respect of, or in exchange for, any or all of the
Shares I and the Shares II respectively, and in as far as they are not
capable of being pledged on the date hereof, as soon as the same are
capable of being pledged in accordance with Netherlands' law to the
Pledgee, and the Pledgee hereby accepts such pledges. The above
proceeds of the Shares I and the Shares II respectively will be
pledged to the Pledgee as soon as they become eligible for pledging.
This will be effected with due observance of the specific requirements
under Netherlands' law regarding the pledge of such proceeds of the
Shares I and the Shares II respectively.
3.3.1. The Managing Board of Company I has resolved to approve of the
creation of the right of pledge over the Shares I in favour of
the Pledgee, as evidenced by Board Minutes dated the thirtieth
day of April one thousand nine hundred ninety eight, a copy of
which will be attached to this deed.
3.3.2. The Managing Board of Company II has resolved to approve of
the creation of the right of pledge over the Shares II in
favour of the Pledgee, as evidenced by Board Minutes dated the
thirtieth day of April one thousand nine hundred ninety eight,
a copy of which will be attached to this deed.
Section 4 - Acknowledgement
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Company I and Company II respectively hereby acknowledge the creation of
the pledges pursuant to this Deed and declare that they will, in so far as
it regards the creation of a right of pledge over the Shares I and the
Shares II respectively, cause these pledges to be recorded in their
respective shareholders' registers without delay.
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Section 5 - Representations and Warranties
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5.1 Pledgor I and Pledgor II respectively hereby represent and warrant
that they are, or shall be, as the case may be, entitled to pledge the
Shares I and the Shares II respectively and the proceeds referred to
in Section 3.2 to the Pledgee and that there are no or will not be any
attachments, rights of pledge in favour of third parties or any right
of retention on or against the Shares I and the Shares II respectively
and the proceeds referred to in Section 3.2, with the exception of the
security interest in and lien upon the Shares I and the Shares II
respectively granted to the Pledgee pursuant to the Credit Agreement,
the Pledge Agreement and this Deed. Pledgor I and Xxxxxxx XX
respectively further represent and warrant that they have not
previously and/or in advance transferred or created rights of pledge
on or over the Shares I and the Shares II respectively and the
proceeds referred to in Section 3.2, either in whole or in part, to or
in favour of any third parties.
5.2 Pledgor I and Pledgor II respectively furthermore represent and
warrant that no depositary receipts have been issued for the Shares I
and the Shares II respectively, that there are no outstanding claims
on Company I and Company II respectively for the issue of shares in
there respective capital, that there are no outstanding options or
other rights entitling the holder thereof to the transfer of the
Shares I and the Shares II respectively or of any part thereof, and
that no resolution to dissolve Company I and Company II respectively
has been taken.
Section 6 - Voting Rights Under the suspensive condition that Company I's
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Articles of Association and Company II's Articles of Association respectively
are amended to the effect that the voting rights attached to the Shares I and
the Shares II respectively may vest in a pledgee (hereinafter referred to as:
the "Suspensive
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Condition") the Pledgee shall have the voting rights attached to the Shares I
and the Shares II respectively. Under the Suspensive Condition the Pledgee
hereby revocably authorizes the Pledgor I and the Pledgor II respectively to
exercise the voting rights attached to the Shares I and the Shares II
respectively, which power of attorney shall be revocable only if and when an
Event of Default shall have occurred and be continuing under the Credit
Agreement, provided, however that the Pledgor I and the Pledgor II respectively
shall not vote the Shares I and the Shares II respectively if the result thereof
could materially and adversely affect the rights inuring to a holder of the
Pledged Securities or the rights and remedies of any of the Secured Parties
under the Credit Agreement, the Pledge Agreement, this Deed or any other Loan
Document or the ability of the Secured Parties to exercise the same.
Section 7 - Remedies
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Without prejudice to the rights and remedies provided to the Pledgee by law and
subject to the mandatory rules of law, the Pledgee may, upon the occurrence and
during the continuance of an Event of Default under the Credit Agreement, the
Pledge Agreement or this Deed:
(i) take all measures, whether judicial or extra-judicial, which a pledgee may
take in the event of enforcement of pledged goods and which are permitted
by law and which in its opinion are required in its interests; (ii) apply
any proceeds of the Shares without regard to the provisions of Sections
6:43 and 6:44 of the Netherlands Civil Code.
Section 8 - Release
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The provisions of this Deed and the pledges created hereby shall remain in full
force and effect until all of the Pledgor's respective Obligations shall have
been fully and finally paid and performed and all Pledgee's commitments under
the Credit Agreement and/or other Loan Documents shall have expired or been
terminated.
Section 9 - Governing law This Deed shall be interpreted and the rights and
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liabilities of the parties hereto determined in accordance with the laws of The
Netherlands.
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Section 10 - Jurisdiction
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Any dispute under this Deed shall exclusively be settled by the court of
competent jurisdiction at Amsterdam, The Netherlands, provided that the Pledgee
may seek enforcement of the obligations of Pledgor hereunder through any other
competent court in any other jurisdiction.
Section 11 - Inconsistencies In the event of any irreconcilable inconsistencies
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between any provision of the Credit Agreement, the Pledge Agreement, the Loan
Documents and this Deed, the provisions of this Deed shall prevail.
Final Part The persons appearing have been granted powers of attorney by means
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of five non-notarial instruments of attorney, photocopies of which will after
the present Deed has been executed be attached to this Deed. Sufficient
evidence has been furnished to me, the civil-law notary, of the existence of the
powers of attorney included in the authority. The persons appearing are known
to me, the civil-law notary.
WHEREOF THE PRESENT DEED,
the Original of which was executed at Amsterdam, the day and year first above
written. After the substance of this Deed had been made known to the persons
appearing, they unanimously declared that they had taken cognizance of the
contents of this Deed and that they did not wish the same to be read out to them
in full. Subsequently, after this Deed had been read out in part, the persons
appearing and I, the civil law notary, thereunto appended our signatures.
Signed: X.X. Xxxxx, R.P. ten Have, X.X. xxx Xxx
ISSUED FOR TRUE COPY
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