EXHIBIT 10.6
AMENDED AND RESTATED STOCK PURCHASE WARRANT AGREEMENT, dated as of
September 30, 1998, by and between CDRJ Investments (Lux) S.A., a Luxembourg
societe anonyme (the "Company") and Jafra Cosmetics International, Inc., a
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Delaware corporation ("JCI").
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W I T N E S S E T H:
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WHEREAS, JCI is an indirect wholly-owned subsidiary of the Company;
WHEREAS, the Board of Directors of the Company (the "Board"), in
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consultation with the Board of Directors of JCI (the "JCI Board"), has
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determined that it is in the best interest of the Company and its shareholders
for JCI to grant options to purchase from JCI an aggregate of up to 104,282
shares of the Company's Class A voting shares, par value $2.00 per share (the
"Common Stock"), to select members of the management of the Company or its
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Subsidiaries (as defined herein) in order to motivate and align the interests of
such individuals with those of the Company's shareholders, and in connection
therewith, the JCI Board has established the Jafra Cosmetics International, Inc.
Stock Incentive Plan, as amended (as the same may be further amended from time
to time, the "Plan"); and
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WHEREAS, to enable JCI to obtain the shares of Common Stock to be
delivered pursuant to options granted under the Plan, the Company and JCI
entered into a Stock Purchase Warrant Agreement, dated as of April 30, 1998,
pursuant to which JCI may purchase an aggregate of 88,000 shares of Common Stock
from the Company and the Company and JCI desire to increase the aggregate number
of shares of Common Stock by the Warrant and to enter into this Amended and
Restated Warrant Agreement (the "Warrant" or the "Agreement") pursuant to which
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JCI may purchase an aggregate of 104,282 shares of Common Stock from the
Company;
NOW, THEREFORE, to implement the foregoing and in consideration of the
mutual promises, covenants and agreements contained herein, the parties hereto
hereby agree as follows:
1. Exercise of Warrant. (a) This Warrant may be exercised by JCI,
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in whole or in part, during normal business hours on any Business Day, by
delivery to the Company of a written form of subscription acceptable to the
Company duly executed by such Holder, delivered to the Company at its principal
office, accompanied by payment, in cash or readily available funds payable to
the order of the Company, in the amount (such amount referred to herein as the
"Exercise Price") equal to (i) the product of (A) the
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number of shares of Common Stock to be purchased as specified in such written
form of subscription (the "Exercise Shares") and (B) the Purchase Price (as
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defined herein), plus any capital or other similar tax imposed in connection
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with the issuance of the Exercise Shares, and the Company shall deliver to JCI a
certificate or certificates representing the Exercise Shares bearing such
legends as the Company shall determine appropriate. Subject to Section 2, the
cumulative maximum aggregate number of shares of Common Stock that may be
purchased by JCI pursuant to this Warrant is 104,282 shares.
(b) As used herein, the following terms shall have the following
meanings:
"Applicable Share Valuation" shall mean the annual valuation of the
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Common Stock performed as of the last day of the last Fiscal Year ending
prior to the determination date by an independent valuation firm chosen by
the Board, except that, in the case of a determination date occurring
during the fourth fiscal quarter of any Fiscal Year beginning with the
fourth quarter of the 1998 Fiscal Year, the term "Applicable Share
Valuation" shall mean the annual valuation of the Common Stock performed as
of the last day of such fourth fiscal quarter by an independent valuation
firm chosen by the Board. Such annual valuations shall be performed as
promptly as practicable following the end of each Fiscal Year, beginning
with the 1998 Fiscal Year.
"Business Day" shall mean any day other than a Saturday or a Sunday or
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a day on which commercial banking institutions in The City of New York are
authorized by law to be closed.
"Purchase Price" shall mean, as of any date of determination, the fair
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market value on such date of a share of Common Stock as determined in good
faith by the Board. In making a determination of fair market value, the
Board shall give due consideration to such factors as it deems appropriate,
including, without limitation, the earnings and certain other financial and
operating information of the Company and its subsidiaries in recent
periods, the potential value of the Company and its subsidiaries as a
whole, the future prospects of the Company and its subsidiaries and the
industries in which they compete, the history and management of the Company
and its subsidiaries, the general condition of the securities markets,
the fair market value of securities of companies engaged in businesses
similar to those of the Company and its subsidiaries and the Applicable
Share Valuation. The determination of fair market value will not give
effect to any restrictions on transfer of the shares of Common Stock or the
fact that such Common Stock would represent a minority interest in the
Company. Notwithstanding the foregoing, following a Public Offering, fair
market value shall mean the average of the high and low trading prices for
a share of Common Stock on the primary
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national exchange (including Nasdaq) on which the Common Stock is then
traded on the trading day immediately preceding the date as of which such
fair market value is determined.
"Fiscal Year" shall mean a fiscal year of the Company ending December
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31.
"Public Offering" shall mean the first day as of which sales of Common
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Stock are made to the public in the United States pursuant to an
underwritten public offering of the Common Stock led by one or more
underwriters at least one of which is an underwriter of nationally
recognized standing.
2. Adjustment of Number of Shares of Common Stock. The number and
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class of shares shall be adjusted by the Board to reflect any Common Stock
dividend, stock split or share combination or any recapitalization, merger,
consolidation, exchange of shares, liquidation, dissolution or reorganization of
the Company if and to the extent such an adjustment is called for under the
Plan.
3. Restrictions on Transfer. This Warrant may not be transferred or
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assigned except with the prior written consent of the Company.
4. Reservation of Stock, etc. The Company shall at all times reserve
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and keep available, solely for issuance and delivery upon exercise of the
Warrant, the number of shares of Common Stock from time to time issuable upon
exercise of the Warrant at the time outstanding. All shares of Common Stock
shall be duly authorized and, when issued upon such exercise and upon receipt of
the Exercise Price, shall be validly issued and, in the case of shares, fully
paid and nonassessable with no liability on the part of the holders thereof.
5. Requirements of Law. The issuance of shares of Common Stock shall
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be subject to all applicable laws, rules and regulations, and to such approvals
by any governmental agencies or national or foreign securities exchanges as may
be appropriate or required, as determined by the Board. Notwithstanding any
other provision herein or in the Plan, no share of Common Stock issued upon
exercise of this Warrant if such issuance would result in a violation of
applicable law, including the federal securities laws and any applicable state
or foreign securities laws.
6. Governing Law. THIS WARRANT SHALL BE CONSTRUED AND ENFORCED IN
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ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICT OF LAWS TO THE EXTENT SUCH
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PRINCIPLES OR RULES WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION).
7. Amendments and Waivers. This Agreement may be amended, and the
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Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of JCI.
8. Notices. All notices, requests, demands or other communications
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provided for hereunder shall be in writing and shall be deemed to have been duly
given to any party (a) when delivered personally (by courier service or
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otherwise), (b) when delivered by telex and confirmed by receipt of the proper
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telex answerback, (c) five days after being mailed by first class mail, postage
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prepaid (registered or certified mail, return receipt requested), (d) when
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receipt acknowledged, if telecopied, or (e) the next business day after timely
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delivery to the courier, if sent by overnight air courier guaranteeing next day
delivery, at the following addresses (or to such other address as such party may
have designated to the other in writing):
if to the Company, to the Company at:
▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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if to JCI, to JCI at:
Jafra Cosmetics International, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
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Copies of any notice or other communication given under the Agreement shall also
be given to:
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▇▇▇▇▇▇▇, Dubilier & Rice, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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and
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇, Esq.
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Any party may give any notice or other communication in connection herewith
using any other means (including, but not limited to, personal delivery,
messenger service, facsimile, telex or ordinary mail), but no such notice or
other communication shall be deemed to have been duly given unless and until it
is actually received by the individual for whom it is intended.
9. Term. This Agreement shall be effective as of the date hereof and
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shall continue in effect thereafter until the date that is six months after the
tenth anniversary of the date hereof.
10. Severability. If any provision of this Agreement is inoperative
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or unenforceable for any reason, such circumstances shall not have the effect of
rendering the provision in question inoperative or unenforceable in any other
case or circumstance, or of rendering any other provision or provisions herein
contained invalid, inoperative, or un enforceable to any extent whatsoever.
The invalidity of any one or more phrases, sentences, clauses, Sections or
subsections of this Agreement shall not affect the remaining portions of this
Agreement.
11. Headings. The headings contained in this Agreement are for
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purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement.
12. Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be deemed an original and all of which
together constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first written above.
CDRJ INVESTMENTS (LUX) S.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Executive Vice President, Fonde de pouvoir
JAFRA COSMETICS INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Executive Vice President
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