EXHIBIT 10.26
ADVANCED AESTHETICS, INC.
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of March 31, 2004 (this
"Agreement"), between Technology Investment Capital Corp., a Maryland
corporation (the "Investor") and Advanced Aesthetics, Inc., a Delaware
corporation (the "Company").
R E C I T A L S
WHEREAS, the Investor has, pursuant to the terms of the Note and
Warrant Purchase Agreement, dated as of March 31, 2004, by and among the Company
and its subsidiaries and the Purchasers named therein (the "Purchase
Agreement"), agreed to purchase senior secured promissory notes and a warrant
(the "Warrant") to purchase shares of common stock ("Common Shares") of the
Company; and
WHEREAS, the Company has agreed, as a condition precedent to the
Investor's obligations under the Purchase Agreement, to grant the Investor
certain registration rights; and
WHEREAS, the Company and the Investor desire to define the registration
rights of the Investor on the terms and subject to the conditions herein set
forth.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms have the respective
meanings set forth below:
Affiliate: shall mean any Person or entity, directly or indirectly
controlling, controlled by or under common control with such Person or entity;
Commission: shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act;
Exchange Act: shall mean the Securities Exchange Act of 1934, as
amended;
Holder: shall mean any holder of Registrable Securities;
Initiating Holder: shall mean any Holder or Holders who in the
aggregate are Holders of more than 50% of the then outstanding Registrable
Securities;
Other Holders: shall mean Persons who, by virtue of agreements with the
Company or otherwise, are entitled to include the securities of the Company that
they own in a registration.
Person: shall mean an individual, partnership, joint-stock company,
corporation, trust or unincorporated organization, and a government or agency or
political subdivision thereof;
Qualified Public Offering: shall mean an underwritten public offering
pursuant to an effective registration statement under the Securities Act
covering the offer and sale of Common Shares for the account of the Company to
the public generally in which the aggregate net proceeds to the Company are not
less than $25 million at a price per Common Share at least four times the
exercise price of the Warrant in effect on the date thereof.
register, registered and registration: shall mean a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act (and any post-effective amendments filed or required to be filed)
and the declaration or ordering of effectiveness of such registration statement;
Registrable Securities: shall mean (A) Common Shares issuable upon
exercise of the Warrant, (B) any additional Common Shares acquired by the
Investor, and (C) any equity securities of the Company issued as a distribution
with respect to, or in exchange for or in replacement of, the Common Shares
referred to in clause (A) or (B).
Registration Expenses: shall mean all expenses incurred by the Company
in compliance with Sections 2(a) and (b) hereof, including, without limitation,
all registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, fees and expenses of one counsel for all the Holders in
an amount not to exceed $20,000, blue sky fees and expenses and the expense of
any special audits incident to or required by any such registration (but
excluding the compensation of regular employees of the Company, which shall be
paid in any event by the Company);
Security, Securities: shall have the meaning set forth in Section 2(1)
of the Securities Act;
Securities Act: shall mean the Securities Act of 1933, as amended; and
Selling Expenses: shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for each of the Holders other than fees and expenses of
one counsel for all the Holders in an amount not to exceed [$20,000.]
SECTION 2. REGISTRATION RIGHTS
(a) Company Registration.
(i) Inclusion in Registration. If the Company shall determine
to register any of its equity securities either for its own account or for the
account of Other Holders and such registration has an anticipated aggregate
public offering price (before any underwriting discounts and commissions) of not
less than $1,000,000, other than a registration relating solely to employee
benefit plans, or a registration relating solely to a Commission Rule 145
transaction, or a registration on any registration form which does not permit
secondary sales or does not include substantially the same information as would
be required to be included in a registration statement covering the sale of
Registrable Securities, the Company will:
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(A) promptly give to each of the Holders a written
notice thereof (which shall include a list of the
jurisdictions in which the Company intends to attempt to
qualify such securities under the applicable blue sky or other
state securities laws); and
(B) include in such registration (and any related
qualification under blue sky laws or other compliance), and in
any underwriting involved therein, all the Registrable
Securities specified in a written request or requests, made by
the Holders within fifteen (15) days after receipt of the
written notice from the Company described in Section 2(a)(i)
above, except as set forth in Section 2(a)(ii) below. Such
written request may specify all or a part of the Holders'
respective Registrable Securities.
(ii) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise each of the Holders as a part of the written notice
given pursuant to Section 2(a)(i)(A). In such event, the right of each of the
Holders to registration pursuant to this Section 2(a) shall be conditioned upon
such Holders' participation in such underwriting and the inclusion of such
Holders' Registrable Securities in the underwriting to the extent provided
herein; provided, however, that the Investor shall not be required to
participate in such underwriting if the Investor notifies the Company that it is
seeking registration of its securities solely to enable a distribution of such
securities to its partners or its Affiliates' partners. The Holders whose
securities are to be included in such registration (other than the Investor, if
the Investor elects not to participate in such underwriting) shall (together
with the Company and the Other Holders distributing their securities through
such underwriting) enter into an underwriting agreement in customary form with
the representative of the underwriter or underwriters (the "Representative")
selected for underwriting by the Company. Notwithstanding any other provision of
this Section 2(a), if the Representative determines that marketing factors
require a limitation on the number of securities to be underwritten, the number
of securities that may be included in the registration and underwriting by each
of the Holders and the Other Holders shall be reduced, on a pro rata basis
(based on the number of securities held by such Holder or Other Holder), by such
minimum number of securities as is necessary to comply with such limitation. If
any of the Holders or any officer, director or Other Holder disapproves of the
terms of any such underwriting, he may elect to withdraw therefrom by written
notice to the Company and the underwriter. Any Registrable Securities or other
securities excluded or withdrawn from such underwriting shall be withdrawn from
such registration.
(iii) Right to Abandon or Delay Registration. If, at any time
after giving written notice of its intention to register any securities and
prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
register or to delay registration of such securities, the Company may, at its
election, give written notice of such determination to each Holder and upon
giving that notice (i) in the case of a determination not to register, the
Company shall be relieved of its obligation to register any Registrable
Securities in connection with such registration without prejudice and (ii) in
the case of a determination to delay registering, the Company shall be permitted
to delay registering any Registrable Securities for the same period as the delay
in registering such other securities.
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(b) Form S-3. Following the Qualified Public Offering, the Company
shall use its best efforts to qualify for registration on Form S-3 for secondary
sales. After the Company has qualified for the use of Form S-3, the Holders
shall have the right to request unlimited registrations on Form S-3 (such
requests shall be in writing and shall state the number of Registrable
Securities to be disposed of and the intended method of disposition of such
securities by such holders), subject only to the following:
(i) The Company shall not be required to effect a registration
pursuant to this Section 2(b) unless the Holder or Holders requesting
registration (each, a "Requesting Holder") propose to dispose of Registrable
Securities having an aggregate price to the public (before deduction of
underwriting discounts and expenses of sale) of more than $1,000,000.
(ii) The Company shall not be required to effect a
registration pursuant to this Section 2(b) within 180 days of the effective date
of the most recent registration pursuant to this Section 2 in which securities
held by the Requesting Holder could have been included for sale or distribution.
(iii) The Company shall not be obligated to effect any
registration pursuant to this Section 2(b) in any particular jurisdiction in
which the Company would be required to execute a general consent to service of
process in effecting such registration, qualification or compliance, unless the
Company is already subject to service in such jurisdiction and except as may be
required by the Securities Act or applicable rules or regulations thereunder.
The Company shall give written notice to all Holders of the receipt of
a request for registration pursuant to this Section 2(b) and shall provide a
reasonable opportunity for Other Holders to participate in the registration,
provided that if the registration is for an underwritten offering, the following
terms set forth in the next paragraph shall apply to all participants in such
offering. Subject to the foregoing, the Company will use its best efforts to
effect promptly the registration of all Registrable Securities on Form S-3 to
the extent requested by the Holder or Holders thereof for purposes of
disposition.
If Other Holders request such inclusion, the Requesting Holders shall
offer to include the securities of such Other Holders in the registration and
may condition such offer on their acceptance of the further applicable
provisions of this Section 2. The Requesting Holders whose securities are to be
included in such registration and the Company shall (together with all Other
Holders proposing to distribute their securities through such underwriting)
enter into an underwriting agreement in customary form with the Representative
of the underwriter or underwriters selected for such underwriting by the
Requesting Holders and reasonably acceptable to the Company. Notwithstanding any
other provision of this Section 2(b), if the Representative advises the Holders
in writing that marketing factors require a limitation on the number of
securities to be underwritten, the securities of the Company held by Other
Holders shall be excluded from such registration to the extent so required by
such limitation. If, after the exclusion of such securities, further reductions
are still required, the number of securities included in the registration by
each Requesting Holder shall be reduced on a pro rata basis (based on the number
of securities held by such Requesting Holder), by such minimum number of
securities as is necessary to comply with such request. No Registrable
Securities or any other
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securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. If any Other Holder
who has requested inclusion in such registration as provided above disapproves
of the terms of the underwriting, such person may elect to withdraw therefrom by
written notice to the Company, the Representative and the Requesting Holders.
The securities so withdrawn shall also be withdrawn from registration. If the
Representative has not limited the number of Registrable Securities or other
securities to be underwritten, the Company and officers and directors of the
Company may include its or their securities for its or their own account, in
such registration if the representative so agrees and if the number of
Registrable Securities and other securities which would otherwise have been
included in such registration and underwriting will not thereby be limited.
(iv) The Company may, on one occasion, delay the filing of any
registration statement pursuant to this Section 2(b) for a period of up to 90
days after the date of delivery of a request for registration by giving the
Holders sending such request written notice of such delay.
(v) If, while a registration request is pending pursuant to this
Section 2(b), the Board of Directors of the Company determines in good faith,
and the Chief Executive Officer executes an officer's certificate to such
effect, that (A) it is in possession of material, non-public information
concerning an acquisition, merger, recapitalization, consolidation,
reorganization, or other material transaction by or of the Company or concerning
pending or threatened litigation and disclosure of such information would
jeopardize any such transaction or litigation and would be seriously detrimental
to the Company, or (B) the Company is unable to comply with the legal
requirements applicable to the requested registration, then in each instance the
Company shall not be required to effect a registration pursuant to this Section
2(b) until the earlier of (x) the date upon which such material information is
otherwise disclosed to the public or ceases to be material or the Company is
able to so comply with applicable legal requirements, as the case may be, and
(y) 60 days after the Board of Directors has made its determination.
(c) Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to this
Section 2 shall be borne by the Company, and all Selling Expenses shall be borne
by the Holders of the securities so registered pro rata on the basis of the
number of their securities so registered.
(d) Registration Procedures. In the case of each registration effected
by the Company pursuant to this Section 2, the Company will keep the Holders, as
applicable, advised in writing as to the initiation of each registration and as
to the completion thereof. At its expense, the Company will:
(i) use its commercially reasonable efforts to keep such
registration effective for a period of one hundred eighty (180) days or until
the Holders, as applicable, have completed the distribution described in the
registration statement relating thereto, whichever first occurs; provided,
however, that (A) such 180-day period shall be extended for a period of time
equal to the period during which the Holders, as applicable, refrain from
selling any securities included in such registration in accordance with
provisions in Section 2(h) hereof; and (B) in the case of any registration of
Registrable Securities on Form S-3 which are intended to be offered on a
continuous or delayed basis, such 180-day period shall be extended until all
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such Registrable Securities are sold, provided that Rule 415, or any successor
rule under the Securities Act, permits an offering on a continuous or delayed
basis, and provided further that applicable rules under the Securities Act
governing the obligation to file a post-effective amendment permit, in lieu of
filing a post-effective amendment which (y) includes any prospectus required by
Section 10(a) of the Securities Act or (z) reflects facts or events representing
a material or fundamental change in the information set forth in the
registration statement, the incorporation by reference of information required
to be included in (y) and (z) above to be contained in periodic reports filed
pursuant to Section 12 or 15(d) of the Exchange Act in the registration
statement;
(ii) furnish such number of prospectuses and other documents
incident thereto as each of the Holders, as applicable, from time to time may
reasonably request;
(iii) notify each Holder of Registrable Securities covered by
such registration at any time when a prospectus relating thereto is required to
be delivered under the Securities Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing; and
(iv) furnish, on the date that such Registrable Securities are
delivered to the underwriters for sale, if such securities are being sold
through underwriters or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (1) an opinion, dated as of such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering and reasonably satisfactory to a majority in interest of the Holders
participating in such registration, addressed to the underwriters, if any, and
to the Holders participating in such registration and (2) a letter, dated as of
such date, from the independent certified public accountants of the Company, in
form and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering and reasonably
satisfactory to a majority in interest of the Holders participating in such
registration, addressed to the underwriters, if any, and if permitted by
applicable accounting standards, to the Holders participating in such
registration.
(e) Indemnification.
(i) The Company will indemnify each of the Holders, as
applicable, each of its officers, directors and partners, and each person
controlling each of the Holders, with respect to each registration which has
been effected pursuant to this Section 2, and each underwriter, if any, and each
person who controls any underwriter, against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Company of the Securities Act or the
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Exchange Act or any rule or regulation thereunder applicable to the Company and
relating to action or inaction required of the Company in connection with any
such registration, qualification or compliance, and will reimburse each of the
Holders, each of its officers, directors and partners, and each person
controlling each of the Holders, each such underwriter and each person who
controls any such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating and defending any such claim, loss,
damage, liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission based upon written information furnished to the Company by the Holders
or underwriter and stated to be specifically for use therein.
(ii) Each of the Holders will, if Registrable Securities held
by it are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers and each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company or such underwriter, each Other Holder and each of their officers,
directors, and partners, and each person controlling such Other Holder against
all claims, losses, damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any such registration statement, prospectus,
offering circular or other document made by such Holder in writing, or any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements by such Holder therein not
misleading, and will reimburse the Company and such Other Holders, directors,
officers, partners, persons, underwriters or control persons for any legal or
any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to the Company by such Holder
and stated to be specifically for use therein; provided, however, that the
obligations of each of the Holders hereunder shall be limited to an amount equal
to the net proceeds to such Holder of securities sold as contemplated herein.
(iii) Each party entitled to indemnification under this
Section 2(e) (the "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld) and the Indemnified Party
may participate in such defense at such party's expense (unless the Indemnified
Party shall have reasonably concluded that there may be a conflict of interest
between the Indemnifying Party and the Indemnified Party in such action, in
which case the fees and expenses of counsel shall be at the expense of the
Indemnifying Party), and provided further that the failure of any Indemnified
Party to give notice as provided herein shall not relieve the Indemnifying Party
of its obligations under this Section 2 unless the Indemnifying Party is
materially prejudiced thereby. No Indemnifying Party, in the defense of
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any such claim or litigation shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with the defense of such claim and litigation resulting therefrom.
(iv) If the indemnification provided for in this Section 2(e)
is held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, liability, claim, damage or expense referred to
herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and of the Indemnified Party on the other in
connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue (or alleged untrue) statement of a material fact or the
omission (or alleged omission) to state a material fact relates to information
supplied by the Indemnifying Party or by the Indemnified Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(v) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with any underwritten public offering
contemplated by this Agreement are in conflict with the foregoing provisions,
the provisions in such underwriting agreement shall be controlling.
(vi) The foregoing indemnity agreement of the Company and
Holders is subject to the condition that, insofar as they relate to any loss,
claim, liability or damage made in a preliminary prospectus but eliminated or
remedied in the amended prospectus on file with the Commission at the time the
registration statement in question becomes effective or the amended prospectus
filed with the Commission pursuant to Commission Rule 424(b) (the "Final
Prospectus"), such indemnity or contribution agreement shall not inure to the
benefit of any underwriter or Holder if a copy of the Final Prospectus was
furnished to the underwriter and was not furnished to the person asserting the
loss, liability, claim or damage at or prior to the time such action is required
by the Securities Act.
(f) Information by the Holders. Each of the Holders holding securities
included in any registration shall furnish to the Company such information
regarding such Holder and the distribution proposed by such Holder as the
Company may reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Section 2.
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(g) Information by the Holders.
(i) Each of the Holders shall cooperate as reasonably
requested by the Company with the Company in connection with the preparation of
the registration statement, and for so long as the Company is obligated to file
and keep effective the registration statement, shall provide to the Company, in
writing, for use in the registration statement, all such information regarding
such Holder and its plan of distribution of the Registrable Securities as may be
reasonably necessary to enable the Company to prepare the registration statement
and prospectus covering the Registrable Securities, to maintain the currency and
effectiveness thereof and otherwise to comply with all applicable requirements
of law in connection therewith.
(ii) During such time as such Holder may be engaged in a
distribution of the Registrable Securities, such seller shall comply with
Regulation M promulgated under the Exchange Act and pursuant thereto it shall,
among other things; (x) not engage in any stabilization activity in connection
with the securities of the Company in contravention of such regulation; (y)
distribute the Registrable Securities under the registration statement solely in
the manner described in the registration statement; (z) cease distribution of
such Registrable Securities pursuant to such registration statement upon receipt
of written notice from the Company that the prospectus covering the Registrable
Securities contains any untrue statement of a material fact or omits a material
fact required to be stated therein or necessary to make the statements therein
not misleading.
(g) Rule 144 Reporting.
With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of restricted securities
to the public without registration, the Company agrees to:
(i) use its best efforts to make and keep public information
available as those terms are understood and defined in Rule 144 under the
Securities Act ("Rule 144"), at all times from and after ninety (90) days
following the effective date of the first registration under the Securities Act
filed by the Company for an offering of its securities to the general public;
(ii) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act at any time after it has become subject to
such reporting requirements; and
(iii) so long as the Holder owns any Registrable Securities, furnish to
the Holder upon request, a written statement by the Company as to its compliance
with the reporting requirements of Rule 144 (at any time from and after ninety
(90) days following the effective date of the first registration statement filed
by the Company for an offering of its securities to the general public), and of
the Securities Act and the Exchange Act (at any time after it has become subject
to such reporting requirements), a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents so filed as the
Holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing the Holder to sell any such securities without
registration.
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(h) "Market Stand-off" Agreement. Each of the Holders agrees, if
requested by the Company and an underwriter of equity securities of the Company,
not to sell or otherwise transfer or dispose of any Registrable Securities held
by such Holder for a period required by the underwriters and designated by the
Company, which period shall begin not more than 30 days prior to the
effectiveness of the registration statement pursuant to which such public
offering shall be made and shall last not more than 180 days after the effective
date of such registration statement in the case of the Company's initial public
offering, or 90 days after the effective date of such registration statement in
the case of any such other offering. If requested by the underwriters, the
Holders shall execute a separate agreement to the foregoing effect. The Company
may impose stop-transfer instructions with respect to the securities subject to
the foregoing restriction until the end of the applicable period. The provisions
of this Section 2(h) shall be binding upon any transferee who acquires
Registrable Securities.
(i) Termination. The registration rights set forth in this Section 2
shall not be available to any Holder if, in the opinion of counsel to the
Company, all of the Registrable Securities then owned by such Holder could be
sold in any 90-day period pursuant to Rule 144 (without giving effect to the
provisions of Rule 144(k)).
SECTION 3. MISCELLANEOUS
(a) Directly or Indirectly. Where any provision in this Agreement
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
(b) Governing Law; Consent to Jurisdiction. This Agreement shall be
governed by and construed under the law of the State of New York (other than
those conflict of law rules that would defer to the substantive laws of another
jurisdiction). The Company hereby agrees that any suit for the enforcement of
this Agreement may be brought in the Courts of the State of New York, the courts
of the United States for the Southern District of New York, appellate courts
from any thereof and consents to the non-exclusive jurisdiction of such courts.
The Company hereby waives any objection that it may now or hereafter have to the
venue of any such suit or any such court or that such suit is brought in an
inconvenient court. Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 3(e). Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
(c) Participation in Underwritten Registrations. No person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
(d) Section Headings. The headings of the sections and subsections of
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part hereof.
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(e) Notices.
(i) All communications under this Agreement shall be in
writing and shall be delivered by hand or facsimile or mailed by overnight
courier or by registered or certified mail, postage prepaid:
(A) if to the Company, to Advanced Aesthetics, Inc.,
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇-▇▇▇, ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (facsimile: 561-802-4181), or at
such other address as it may have furnished in writing to the
Investor, with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Jenkens &
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, The Chrysler Building, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇;
(B) if to the Investor, at the address or facsimile
number listed on Schedule I hereto, or at such other address
or facsimile number as may have been furnished the Company in
writing, with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
(ii) Any notice so addressed shall be deemed to be given: if
delivered by hand or facsimile, on the date of such delivery; if mailed by
courier, on the first business day following the date of such mailing; and if
mailed by registered or certified mail, on the third business day after the date
of such mailing.
(f) Reproduction of Documents. This Agreement and all documents
relating thereto, including, without limitation, any consents, waivers and
modifications which may hereafter be executed may be reproduced by the Investor
by any photographic, photostatic, microfilm, microcard, miniature photographic
or other similar process and the Investor may destroy any original document so
reproduced. The parties hereto agree and stipulate that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made by the Investor in the regular course
of business) and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
(g) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties.
(h) Entire Agreement; Amendment and Waiver. This Agreement constitutes
the entire understanding of the parties hereto and supersedes all prior and
contemporaneous understandings and agreements among such parties with respect to
subject matter hereof. This Agreement may be amended, and the observance of any
term of this Agreement may be waived, with (and only with) the written consent
of the Company and the Holders holding a majority of the then outstanding
Registrable Securities.
(i) Severability. In the event that any part or parts of this Agreement
shall be held illegal or unenforceable by any court or administrative body of
competent jurisdiction, such determination shall not affect the remaining
provisions of this Agreement, which shall remain in full force and effect.
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(j) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
(k) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ITS RIGHT TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS
AGREEMENT OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF
DUTY AND ALL OTHER CLAIMS. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
ADVANCED AESTHETICS, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
INVESTOR:
TECHNOLOGY INVESTMENT CAPITAL CORP.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
By:________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Operating Officer
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SCHEDULE I
Name and Address of Investor
----------------------------
Technology Investment Capital Corp.
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇