EXHIBIT 10.48
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Advisory Services Agreement
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▇▇▇▇ & COMPANY, LLC
Three Pickwick ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
November 25, 2003
Advanced Aesthetics, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇-▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
This is to confirm the understanding between ▇▇▇▇ & Company,
LLC and Advanced Aesthetics, Inc., a Delaware corporation (the "Company"), with
respect to the performance by KCO of advisory services to be provided to the
Company and its direct and indirect subsidiaries. Capitalized terms used but not
defined herein have the meanings assigned to them in the Glossary attached to
the Securities Purchase Agreement dated as of November 4, 2003 between the
Company and FCPR L Capital, a fonds commun de placements a risque, represented
by L Capital Management SAS, a societe par actions simplifiee.
1. Services. KCO will perform ongoing advisory services for
the Company which shall include, but shall not be limited to, the following:
1.1 Business Plans and Budgets. KCO will advise the Company
with respect to the Company's annual business plans, will advise the Company's
management in connection with the implementation of such plans and will counsel
management with respect to the measurement and monitoring of the Company's
performance with respect to its plans. KCO will advise the Company with respect
to the preparation of other business plans or business proposals for the Company
and related Company literature to be utilized in connection with proposed
acquisitions or business combinations.
1.2 Financial Planning. KCO will counsel management with
respect to the monitoring of Company's financial affairs and initiating and
maintaining relationships with sources of financing for the Company including
banks, other lending institutions and investment banking firms.
1.3 Management Assistance. KCO will advise the Company's
management in connection with implementation of the Company's business plans.
1.4 Acquisitions and Other Business Combinations. Where
appropriate, KCO will: (a) investigate and review proposals concerning
acquisitions and other business combinations and advise the Company as to the
structure and form of any such proposal; (b) perform financial analyses of the
acquisition candidates and relevant comparable companies and
assist the Company in the determination of appropriate and desirable values to
be realized in any acquisition or business combination; (c) counsel the Company
as to strategy and tactics for initiating and continuing discussions and
negotiations with any third party in connection with an acquisition or business
combination and, if requested by the Company, participate in such discussions
and negotiations; (d) if any agreement in principle is reached with any third
party in connection with an acquisition or business combination, assist the
Company in negotiating a definitive agreement to consummate the transaction; and
(e) advise the Company with respect to the consummation of any such
transactions, including, without limitation, the preparation of any requisite or
desirable regulatory filings, the satisfaction of any closing conditions and the
performance by the Company and its affiliates of any covenants or obligations
under any acquisition agreement.
1.5 Personnel. KCO will advise the Company with respect to the
identification, interviewing and recruitment of suitable candidates for senior
management positions, and determination of appropriate compensation arrangements
for senior executives of the Company.
2. Remuneration. In consideration of the advisory and related
services to be performed by KCO for the Company hereunder, the Company shall pay
to KCO an annual advisory fee payable in quarterly installments in arrears
commencing on December 31, 2003, equal to the higher of (a) US$425,000 and (b)
1% of the Company's gross revenues for such year. For purposes of determining
the fees payable hereunder, "gross revenues" shall include all revenue generated
by the Company or any of its subsidiaries with respect to services provided by
them in any given year with respect to which the annual advisory fee is payable.
3. Expense Reimbursements. In addition to the fees pursuant to
Paragraph 2, the Company shall reimburse KCO for all reasonable out-of-pocket
costs and expenses incurred by KCO in connection with the performance of its
services hereunder.
4. Term. This agreement shall continue until the fifth
anniversary of the date hereof; provided, however, that, at the end of the
five-year term this agreement shall renew for additional one-year periods unless
either party shall provide written notice of termination to the other no later
than 30 days prior to the next expiration date; provided, further, however, that
this agreement and the Consulting Services Agreement shall both automatically
terminate upon the close of an Exit Event that is not an IPO but in no event
shall this agreement terminate prior to termination of the Consulting Services
Agreement.
5. Limitation on Assignment by KCO. KCO may not assign its
rights or duties hereunder to any party other than to Affiliates.
6. Indemnification; Limitation of Liability. The Company
shall, to the fullest extent permitted by law, indemnify KCO and each of its
agents, officers, shareholders, employees, members, representatives, and all
others acting on its behalf (collectively with KCO, the "Indemnified Parties"),
against any and all liabilities, costs, expenses (including reasonable legal
fees and expenses), settlements, judgments and losses (collectively, "Damages"),
resulting from, in connection with or arising out of any actual or threatened
claim, action, demand, dispute or proceeding of whatever kind and nature that
may be asserted against an Indemnified Party in
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any way arising from the activities of KCO pursuant to this agreement to the
same extent as if such Indemnified Party were an officer of the Company, and all
of such Damages shall be advanced to each Indemnified Party to the fullest
extent permitted under and subject to repayment in accordance with Delaware law.
In addition, the personal liability of each Indemnified Party is hereby
eliminated or limited to the fullest extent permitted by Paragraph 7 of
subsection (b) of Section 102 of the Delaware General Corporation Law, as the
same may be amended or supplemented from time to time or pursuant to any
successor provision, to the same extent as if such Indemnified Party were an
officer of the Company under Delaware law. In no event will any Indemnified
Party be liable to the Company (x) unless such Indemnified Party shall have been
grossly negligent, engaged in willful misconduct or acted in bad faith or (y)
for special, indirect, punitive or consequential damages, including, without
limitation, loss of profits or list business, even if such Indemnified Party has
been advised of the possibility of such damages.
7. Limit on Termination. The Company shall have no right to
terminate this agreement unless KCO shall have committed gross negligence or
willful misconduct in the performance of its duties hereunder. In the event of a
dispute with respect to the foregoing, the prevailing party in such dispute
shall be entitled to recover its reasonable legal fees and expenses in
connection therewith.
8. Certain Rights of the Parties. The activities of the
Company shall at all times be subject to the control and direction of its Board
of Directors and officers. The Company reserves the right to make all decisions
with regard to any matter upon which KCO has rendered its advice and
consultation. It is agreed that KCO shall devote only so much time, and shall
consult with and advise the officers and management of the Company, only to such
extent and at such times and places as may be mutually convenient to the Company
and KCO. KCO shall be free to provide similar services to such other business
enterprises or activities as KCO may deem appropriate without any limitation or
restriction.
9. Governing Law. This agreement shall be construed,
interpreted and enforced in accordance with, and shall be governed by, the laws
of the state of New York without regard to principles of conflicts of laws.
10. Jurisdiction; Venue. Each of the parties hereto hereby
irrevocably consents and submits to the exclusive jurisdiction of the United
States District Court for the Southern District of New York in connection with
any dispute arising out of or relating to this agreement or the transactions
contemplated hereby, waives any objection to venue in such District (unless such
court lacks jurisdiction with respect to such dispute, in which case, each of
the parties hereto irrevocably consents to the jurisdiction of the courts of the
State of New York located in New York County in connection with such dispute and
waives any objection to venue in the County of New York).
11. Counterparts; Effectiveness. This agreement may be
executed in one or more counterparts (including signature pages delivered by
facsimile transmission), each of which shall be deemed an original but all of
which together will constitute one and the same agreement. This agreement shall
become effective when each party hereto shall have received counterparts hereof
signed by all of the other parties hereto.
[The next page is the signature page]
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Please signify your approval of this advisory services
agreement by signing in the space provided below.
Very truly yours,
▇▇▇▇ & COMPANY, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
Agreed:
ADVANCED AESTHETICS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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