EXHIBIT 10.6
AMENDED AND RESTATED
SECURITYHOLDERS AGREEMENT
December 20, 2005
The parties to this agreement are FCPR L Capital, a fonds
commun de placements a risque, represented by L Capital Management SAS, a
societe par actions simplifiee ("L Capital"), and each of the other Persons that
owns securities of ▇▇▇▇▇▇▇.▇▇▇ Inc. (the "Company") executing a signature page
to this agreement (the "Other Stockholders" and with L Capital, the
"Stockholders").
On November 25, 2003, the Stockholders who were all
securityholders of Advanced Aesthetics, Inc. ("AAI"), entered into a
Securityholders Agreement (the "Original Agreement").
The parties hereto have entered or are entering into a Share
Exchange Agreement, pursuant to which securityholders of AAI, including the
Stockholders, have agreed to exchange their AAI securities for newly issued
securities of the Company.
In connection with the consummation of the Share Exchange
Agreement the Stockholders wish to amend and restate the Original Agreement so
that it is applicable to the new shares of Common Stock of the Company that are
being issued to the Stockholders in exchange for their AAI securities.
The Stockholders desire to promote their mutual interests by
imposing certain limitations on the Transfer of the shares of common stock, par
value $.01 per share, of the Company ("Common Stock") now owned by any
Stockholder, being acquired by any Stockholder concurrently with this agreement,
whether by purchase or grant directly from the Company, by purchase from a third
party, or pursuant to the exercise of any option (all of the foregoing shares of
Common Stock and other securities are sometimes referred to collectively as the
"Securities"), all upon the terms and conditions set forth below.
The parties agree as follows:
1. Definitions.
The following terms have the meanings indicated:
1.1. "ADDITIONAL SHARE VALUE" means the Value of the shares of Common Stock
transferred to L Capital pursuant to the Share Transfer Agreement in respect of
its investment in the Convertible Note or the Series D Shares, as the case may
be.
1.2. "AFFILIATE" has the meaning assigned to such term in Rule 12b-2 under the
Exchange Act; provided, however, that, in the case of L Capital, any investment
fund managed by an Affiliate of L Capital shall be deemed to be an Affiliate of
L Capital.
1.3. "AVERAGE DAILY TRADING VALUE" means the product of the daily trading volume
multiplied by the average of the high and low trading price for such day, each
as reported by Bloomberg Financial L.P.
1.4. "BUSINESS DAY" means a day other than Saturday, Sunday or any day on which
banks located in France or in the state of New York are authorized or obligated
to close.
1.5. "COMMON EQUIVALENT SECURITIES" means Common Stock, warrants and all other
securities of the Company that may now or at any time in the future be
authorized, issued and outstanding and that represent any other direct or
indirect rights to acquire, or constitute interests or participations in, Common
Stock or rights to acquire securities that are directly or indirectly
exercisable for, convertible into or exchangeable for Common Stock.
1.6. "COMMON SHARE EQUIVALENTS" means all shares of Common Stock and all shares
of Common Stock that are issuable upon exercise, exchange or conversion of all
Common Equivalent Securities.
1.7. "COMMON STOCK" means the Company's common stock, par value $0.0001 per
share.
1.8. "COMPANY" means ▇▇▇▇▇▇▇.▇▇▇ Inc., a Delaware corporation.
1.9. "CONVERTIBLE NOTE" means the Subordinated Convertible Promissory Note,
dated November 25, 2003, issued by AAI in the principal amount of $13,300,000
payable to the order of L Capital.
1.10. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
1.11. "EXCLUDED INDEBTEDNESS" means Indebtedness, other than (a) Indebtedness
incurred to Persons from whom the Company shall have acquired all or
substantially all of the business or voting stock, or any division, line of
business or other business unit; (b) a maximum of $5,000,000 of Indebtedness
outstanding at any one time in excess of any Indebtedness owed, as of the date
hereof, to Technology Investment Capital Corp.; and (c) obligations under real
or personal property leases.
1.12. "EXIT EVENT" means:
(a) the liquidation or dissolution of the Company;
(b) a Public Offering; or
(c) any of the following: (i) the sale, lease, exchange, transfer or
other disposition, either directly or indirectly, of assets constituting all or
substantially all of the assets of the Company and its subsidiaries taken as a
whole, to a Person or group of Persons not controlled by the Company; (ii) any
merger, consolidation or other business combination, or refinancing or
recapitalization of the Company that results in the holders of the issued and
outstanding voting securities of the Company immediately prior to such
transaction beneficially owning or controlling less than a majority of the
voting securities of the continuing or surviving entity immediately following
such transaction; or (iii) any Person or Persons acting together or which would
constitute a "group" for the purposes of Section 13(d) of the Exchange Act,
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together or with any Affiliates thereof, other than the beneficial owners of
Common Stock as of November 25, 2003, and their respective Affiliates,
beneficially owning (as defined in Rule 13d-3 of the Exchange Act) or
controlling, directly or indirectly, at least 50% of the total voting power of
all classes of capital stock entitled to vote generally in the election of
directors of the Company.
1.13. "IMMEDIATE FAMILY" of any individual means the spouse, children, parents,
siblings, nieces or nephews of such individual or a trust for the benefit of any
of the foregoing individuals.
1.14. "INDEBTEDNESS" means indebtedness for borrowed money.
1.15. "L CAPITAL" means L Capital Management SAS, a societe par actions
simplifiee.
1.16. "L CAPITAL NOTE DEBT" shall have the meaning assigned to such term in the
letter agreement, dated as of the date hereof, among L Capital, ▇▇▇▇ & Company,
LLC and AAI.
1.17. "L CAPITAL ACCRUED DIVIDENDS" shall have the meaning assigned to such term
in the letter agreement, dated as of the date hereof, among L Capital, ▇▇▇▇ &
Company, LLC and AAI.
1.18. "LIEN" means a lien, security interest, charge or other encumbrance.
1.19. "LIQUIDATION AMOUNT" means $21,500,000, plus the L Capital Note Debt plus
the L Capital Accrued Dividends.
1.20. "LVMH" means Moet ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Vuitton S.A., a societe anonyme organized
under the laws of the Republic of France.
1.21. "MARKETABLE SECURITIES" means securities of a Person that are: (a) subject
to the reporting requirements of Section 13 or 15(d) of the Exchange Act and
listed on a national securities exchange or quoted on the Nasdaq National Market
System; or (b) quoted on the London Stock Exchange, the Tokyo Stock Exchange or
Euronext.
1.22. "OFF-BALANCE SHEET LIABILITY" means, except for real property leases, an
"off-balance sheet arrangement," as such term is defined in Item 303(a)(4)(ii)
of the United States Securities and Exchange Commission Regulation S-K.
1.23. "PERSON" means an individual or a corporation, partnership, association,
trust, or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
1.24. "PUBLIC OFFERING" means an underwritten public offering of Common Stock
pursuant to a registration statement on Form ▇-▇, ▇-▇ or S-3 (or a similar form
of general application prescribed by the SEC) filed under the Securities Act for
gross proceeds of not less than $25,000,000.
1.25. "SALE TRANSACTION" means, other than with respect to a Public Offering:
(a) in the event that Other Stockholders who collectively own a majority of the
Common Share Equivalents owned by all of the Other Stockholders are the Selling
Stockholders, a Threshold Transaction;
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and (b) after November 25, 2008, in the event L Capital is the Selling
Stockholder, any Exit Event.
1.26. "SELLING STOCKHOLDERS" means:
(a) with respect to a Sale Transaction set forth in clause (a) of the
definition thereof, Other Stockholders who collectively own a majority of the
Common Share Equivalents owned by all of the Other Stockholders; and
(b) with respect to a Sale Transaction set forth in clause (b) of the
definition thereof, L Capital.
1.27. "SERIES D SHARES" means the 8,200 shares of Series D Preferred Stock of
AAI that L Capital purchased from AAI.
1.28. "SHARE EXCHANGE AGREEMENT" means the Share Exchange Agreement, dated as of
the date hereof, among AAI, the Company and the securityholders of AAI signatory
thereto.
1.29. "SHARE TRANSFER AGREEMENT" means the Amended and Restated Share Transfer
Agreement, dated as of the date hereof, among L Capital and the Other
Stockholders, as the same may be amended, modified or supplemented.
1.30. "THRESHOLD TRANSACTION" means an Exit Event that is a Public Offering or
is with (x) L Capital or its Affiliates or (y) on an arms' length basis with
non-Affiliates in which in either event, at the time of such Exit Event and
(after giving effect to the Additional Share Value that may be received by L
Capital in connection with such Exit Event with respect to its investment in the
Convertible Note and the Series D Shares) L Capital shall have received or be
entitled to receive proceeds consisting solely of cash or Marketable Securities
that (or, in a Public Offering, the Value of the Common Stock that may be
received by L Capital upon conversion of the Convertible Note and the Series D
Shares): (i) provide L Capital with an IRR (calculated pursuant to Section 3.3
of the Share Transfer Agreement) of 25% or more; and (ii) have a Value equal to
no less than $43,000,000; or
1.31. "TRADING MARKET" means the Nasdaq SmallCap Market, the Nasdaq National
Market, the American Stock Exchange or the New York Stock Exchange.
1.32. "TRANSFER" means any sale, assignment, gift, transfer, conveyance or other
disposition, and any pledge or other encumbrance.
1.33. "VALUE" shall have the meaning ascribed to such term in the Share Transfer
Agreement.
2. Certain Transfer Restrictions.
(a) Until the expiration of the Lock-Up Period (as defined in section 3
below) each Stockholder may only Transfer any right, title or interest in any or
all of his, her or its Securities, in compliance with the terms of this
agreement. Without limiting the foregoing:
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(i) a Stockholder may Transfer (if such Stockholder is an
individual, such Transfer may be inter vivos or testamentary) all or
part of his, her or its Securities to:
(A) the Company;
(B) the Immediate Family of such Stockholder;
(C) a corporation, limited liability company, limited
or general partnership or similar entity of which the
shareholders, members or partners consist entirely of the
Stockholder and Persons to whom the Stockholder is otherwise
permitted to make Transfers under Section 2(a)(i) through
(iv); or
(D) if such Stockholder is a corporation, limited
liability company, limited or general partnership or similar
entity, such Stockholder may Transfer its Securities to the
shareholders, members or partners of such Stockholder and the
members of the Immediate Family of such shareholders, members
or partners;
(ii) a Stockholder may Transfer all or a part of his, her or
its Securities to any other Stockholder or any Affiliate thereof;
(iii) a Stockholder may Transfer his, her or its Securities to
L Capital pursuant to the Share Transfer Agreement; and
(iv) a Stockholder may Transfer his, her or its Securities to
an Affiliate of such Stockholder.
(b) Notwithstanding paragraph (a) above, a Stockholder may Transfer
his, her or its Securities prior to the expiration of the Lock-Up Period (as
defined in Section 3) in accordance with Section 4.
(c) Any purported Transfer in violation of this agreement shall be void
and of no force and effect.
(d) Any Transfer of Securities pursuant to paragraph (a) above prior to
the expiration of the Lock-Up Period shall be subject to the transferee of
Securities thereunder executing and delivering to the Company an instrument,
satisfactory to the Company that evidences the transferee's agreement to be
bound by the provisions hereof with the same rights and obligations as the
Stockholder.
3. Lock-Up. (a) Each Other Stockholder agrees that he, she or it will
not sell any Common Stock until such time as L Capital has sold Common Stock in
the amount of $21, 500,000. Notwithstanding the previous sentence, the Other
Stockholders may sell Common Stock if the average Daily Trading Price of the
Common Stock during 40 trading days in any 60-day period (the "Measuring
Period") is such that if an Exit Event would have occurred on the last day of
such Measuring Period at a price per share of Common Stock equal to such average
Daily Trading Price, without taking into account any Escrow Shares: (i) L
Capital would have achieved an IRR of not less than 25% with respect to its
investment in the Convertible Note and
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(ii) L Capital would have achieved an IRR of not less than 25% with respect to
its investment in the Series D Shares;
(a) the shares of Common Stock trade on a market or exchange during the
Measuring Period (i) at an average Daily Trading Volume of 200,000 (subject to
adjustment from time to time as a result of a stock split, stock combination or
any other similar event affecting the outstanding number of shares of Common
Stock) shares or more and (ii) at an average Daily Trading Value of $500,000 or
more; and
(b) during the Measuring Period, L Capital's ability to sell the Common
Stock it owns is not prohibited by law for a period of more than 20 days in the
aggregate.
The restrictions set forth in this Section 3 may be waived by L Capital at any
time and from time to time, in accordance with Section 8.8 hereof.
Notwithstanding anything herein to the contrary, the limitations set forth in
this Section 3 shall automatically cease upon the effectiveness of a Public
Offering as defined in this agreement.
4. Certain Rights to Cause Sales of Securities by Stockholders.
(a) In the event that Selling Stockholders determine to effect a Sale
Transaction; then the Selling Stockholders shall have the option to require each
other Stockholder to participate in the same transaction on the same terms and
conditions as the Selling Stockholders. The Selling Stockholders shall give the
each other Stockholder written notice of such determination not less than 20
Business Days prior to the proposed date of the Sale Transaction (a "Sale
Transaction Notice").
(b) In any Sale Transaction, each Stockholder:
(i) shall be required to Transfer the same percentage of such
Stockholder's Common Equivalent Securities determined by dividing the
number of Common Share Equivalents being Transferred by the Selling
Stockholders by the aggregate number of Common Share Equivalents owned
by the Selling Stockholders;
(ii) shall receive the same consideration per share of Common
Stock as is being received by the Selling Stockholders; and
(iii) shall make appropriate and customary representations,
warranties and covenants and indemnifications in such sale.
(c) In any Sale Transaction, L Capital and each Stockholder shall take
all action in their power necessary to cause the consummation of such Sale
Transaction, including, without limitation, exercising, converting and
exchanging any securities that are exercisable or exchangeable for, or
convertible into, Common Stock, obtaining all consents and approvals reasonably
necessary, desirable or appropriate for such Stockholder to consummate the Sale
Transaction and exercising all rights to "drag-along" all other Stockholders.
Accordingly, each Stockholder:
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(i) agrees to vote, or to execute and deliver written consents
in respect of, all Securities (to the extent such Securities have the
right to vote) owned in connection with the approval of a Sale
Transaction and all actions necessary to consummate such Sale
Transaction; and
(ii) affirms that such Stockholder's agreement to vote all
Securities (to the extent such Securities have the right to vote) for
such Sale Transaction is given as a condition of this agreement and as
such is coupled with an interest and is irrevocable.
The above voting agreement shall not terminate with respect to any
Securities owned by a Stockholder until the earlier to occur of (x) such time as
such Securities are no longer owned by such Stockholder and (y) termination of
this agreement.
(d) In the event of a Sale Transaction, a Stockholder shall in all
events be required to deliver each of the Stockholder's Securities in exchange
for the payment therefor and take such other actions as are required to effect
the closing of such Sale Transaction regardless of whether there is any dispute
between the Company and such Stockholder or between such Stockholder and any of
the other stockholders of the Company. Any such dispute shall be resolved after
the closing and shall in no event delay the closing.
(e) At the closing of any Sale Transaction, each Stockholder shall
deliver certificates or other instruments evidencing the Securities to be
Transferred in valid form for transfer with appropriate duly executed
assignments, stock powers or endorsements, as the case may be, bearing any
necessary documentary stamps and accompanied by such certificates of authority,
consents to transfer or other instruments or evidences of the good title of such
Stockholder to such Securities, free and clear of all Liens as may reasonably be
requested by the Selling Stockholders.
5. Liquidation. In the event of a liquidation or dissolution of the
Company, to the extent that the fair market value (as determined by the Board)
of (i) the amounts and/or assets, if any, distributed to L Capital in connection
with such liquidation or dissolution, plus (ii) any consideration received by L
Capital after the date hereof from, distributions on, or the sale of, its
Securities, are, in the aggregate, less than the Liquidation Amount, then the
Other Stockholders shall ratably pay L Capital up to an amount as may be
necessary to allow L Capital to receive the Liquidation Amount; provided, that
no Other Stockholder will be required to pay L Capital under this Section 5
amounts in excess of the fair market value of the payments and/or distributions
made to such Other Stockholder in connection with such liquidation or
dissolution.
6. Composition of the Board of Directors; Governance.
6.1. Board of Directors; Committees.
(a) Each Stockholder shall at all times vote all of his, her or its
shares of Common Stock and other Common Equivalent Securities (to the extent
such Securities have the right to vote) to cause and maintain the Board to
consist of a number of individuals determined as follows:
(i) one director shall be the Company's Chief Executive
Officer;
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(ii) up to two directors shall be nominated by the holders of
a majority of the Common Share Equivalents held by the Other
Stockholders;
(iii) up to two directors shall be nominated by L Capital (the
"L Capital Designees"); and
(iv) one director nominated by ▇▇▇▇▇ ▇▇▇▇▇▇▇ University.
(b) The Board shall meet not less than four times in each calendar
year.
(c) At least one nominee of L Capital and of the Other Stockholders
shall have the right to sit on any committee of the Board.
(d) The Board shall elect the Company's Chief Executive Officer.
(e) Any individual who shall have been nominated by one or more
Stockholders of the Company pursuant to Section 6.1(a) may be removed by such
Stockholder(s) at any time for any reason or for no reason.
6.2. Governance. Until the earlier to occur of: (i) a Public Offering
and (ii) such time that the shares of Common Stock are listed for trading on a
Trading Market:
(a) The Company shall provide to each member of the Board, as soon as
available after the end of each month, copies of the same consolidated financial
statements of the Company that are made available to the Company's management.
(b) The Company shall not, without prior discussion by the Board:
(i) enter into any contracts or partnerships with a duration
of more than one year that require the Company or any subsidiary of the
Company to pay more than $250,000 per year or cause any subsidiary of
the Company to enter into any contracts or partnerships with a duration
of more than one year that require the Company or any subsidiary of the
Company to pay more than $250,000 per year; or
(ii) adopt any strategic plan of three or more years.
(c) The Company shall not, without prior discussion by the Board or its
Compensation Committee, adopt any change to the compensation of any executive
officer whose base salary exceeds $250,000 per year.
(d) The Company shall not, without prior approval by the Board:
(i) make any capital expenditure on any individual item or
project in excess of $1,000,000;
(ii) appoint any individual as an executive officer of the
Company whose base salary exceeds $250,000 per year;
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(iii) except with respect to a Sale Transaction: (A) issue
(other than upon exercise, exchange or conversion of any securities,
the issuance of which has been approved by the Board or L Capital in
accordance with Section 6.2) any shares of any class or series of
capital stock; or (B) directly or through a subsidiary cause the
formation of any subsidiary, division, line of business or other
business unit;
(iv) change the Company's auditors;
(v) acquire the assets or equity of another Person (other than
a wholly-owned Subsidiary) or, other than with respect to a Sale
Transaction, sell any asset for more than $500,000; or
(vi) pledge or hypothecate assets with a value of more than
$1,000,000.
(e) The Company shall not, without the approval of the Board including
the approval of both of the L Capital Designees:
(i) approve any decisions relating to annual capital
expenditures, purchases or acquisitions in excess of $7,000,000 per
fiscal year;
(ii) except with respect to a Sale Transaction that is a
Threshold Transaction, amend the Company's certificate of incorporation
or bylaws in any material respect;
(iii) grant options to purchase more than the greater of: (A)
3,000,000 Common Share Equivalents (subject to adjustment from time to
time as a result of a stock split, stock combination or any other
similar event affecting the outstanding number of shares of Common
Stock); and (B) 10% of the Common Share Equivalents outstanding as of
the date of such grant (computed after giving effect to the grant of
such options pursuant to this clause (iii)); provided, however, that
the Company may also grant additional options to purchase no more than
the number of shares of Common Stock determined by dividing the value
of all consideration received by the Company upon exercise of options
granted prior to the date of such determination by the fair market
value (as Determined the Board) of a share of Common Stock as of the
date of grant of such additional option;
(iv) incur any Excluded Indebtedness;
(v) incur any Off-Balance Sheet Liability in excess of
$500,000;
(vi) approve an Exit Event that is not a Threshold
Transaction;
(vii) authorize in any single transaction or series of
transactions the issuance of any Common Share Equivalents that
represent in the aggregate more than 25% of the Common Share
Equivalents outstanding as of the date of such issuance (including,
without limitation, options granted pursuant to Section 6.2(e)(iii)
above) (computed after giving effect to the authorization of such
Common Share Equivalents pursuant to this clause (vii)); provided,
however, that the Company may also authorize the issuance of a number
of Common Share Equivalents determined by dividing the value
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of all consideration received by the Company upon exercise of options
granted prior to the date of such determination by the fair market
value (as Determined by the Board) of a share of Common Stock as of the
date of grant of such additional Common Share Equivalent; or
(viii) directly or indirectly, enter into any transaction or
agreement with, or make any payment to, any Stockholder, Affiliate or
director of the Company, except for the reimbursement of reasonable
expenses incurred by members of the Board; or
(ix) authorize the sale of shares of Common Stock pursuant to
a Public Offering that is not a Threshold Transaction.
6.3. Use of the Name "LVMH." For so long as L Capital owns any
Securities and for a period of ten years thereafter, the parties shall refer in
any publicity or other documentation related to the Company or to L Capital's
investment in the Company, the Company and the Other Stockholders shall refer to
FCPR L Capital only by the words "L Capital." If the Other Stockholders decide
that it is reasonably necessary to refer to Louis Vuitton Moet ▇▇▇▇▇▇▇▇, LVMH or
the LVMH Group, they may make any such reference in the phrase "L Capital, a
private equity investment fund sponsored by LVMH." Any other reference will
require the prior written consent of LVMH. In any situation where any Other
Stockholder decides that the Company is required to make such a reference by
applicable law, he, she or it may do so, but only if the Company or such Other
Stockholder first gives L Capital a reasonable opportunity to seek an
appropriate protective order.
7. Termination. Each provision of this agreement shall automatically
and without further action terminate upon: (a) the closing of a Public Offering;
and (b) the consummation of a Sale Transaction; provided, however, that: (x)
prior to such termination, the provisions of Section 6.1 and 6.2 shall terminate
automatically and without further action as soon as L Capital shall own less
than [the equivalent of 3,000,000] Common Share Equivalents (subject to
adjustment from time to time as a result of a stock split, stock combination or
any other similar event affecting the outstanding number of shares of Common
Stock); and (y) the provisions of Section 6.3 shall terminate in accordance with
its terms.
8. Miscellaneous.
Notices, Etc. All notices, consents, demands, instructions, requests
and other communications required or permitted hereunder must be in writing and
shall be deemed to have been duly given only if delivered personally, by
facsimile transmission, by first-class mail (postage prepaid, return receipt
requested), or by delivery by a recognized international courier service (all
costs prepaid) to the address or telecopier number set forth on such
stockholder's signature page attached below. All such notices, requests and
other communications will be deemed given upon receipt thereof. Any party from
time to time may change its address, facsimile number or other information for
the purpose of notices to that party by giving like notice specifying such
change to the other party hereto.
8.1. Further Assurances. From and after the date hereof, the parties
hereto will, without further consideration, execute and deliver such further
documents and instruments
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and take such other actions as may be necessary or desirable to perfect the
transactions contemplated hereby.
8.2. No Waiver. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
8.3. Entire Agreement. This agreement supersedes all prior and/or
contemporaneous negotiations, understandings, discussions and agreements
(written or oral) between the parties with respect to the subject matter hereof
(all of which are merged herein), including, but not limited to the Original
Agreement, and contains the sole and entire agreement among the parties hereto
with respect to the subject matter hereof.
8.4. 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.
8.5. 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), and agrees that service of
any summons, complaint, notice or other process relating to such dispute may be
effected in the manner provided by Section 8.1.
8.6. Binding Effect; Assignability. This agreement shall be binding
upon and, except as otherwise provided herein, shall inure to the benefit of the
respective parties and their permitted successors and assigns. This agreement
shall not be assignable by any Stockholder except as otherwise provided herein.
8.7. No Third Party Beneficiaries. Nothing contained in this agreement,
whether express or implied, is intended, or shall be deemed, to create or confer
any right, interest or remedy for the benefit of any Person other than as
otherwise provided in this agreement.
8.8. Amendments and Waiver. No term or provision of this agreement may
be amended, waived, altered, modified, rescinded or terminated except by a
written instrument signed by L Capital and by Other Stockholders who own at
least a majority of the Common Share Equivalents owned by all of the Other
Stockholders, and any such amendment, waiver, alteration, modification,
rescission or termination shall be binding on all of the Stockholders.
8.9. Legal Fees. In the event that it becomes necessary for any of the
parties hereto to retain legal counsel to enforce such party's rights under this
agreement and such party prevails in such enforcement, all costs, fees and
expenses associated with the retention of such
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counsel shall be borne by the other parties hereto with respect to whom the
enforcing party shall have enforced its rights.
8.10. Severability. If any provision of this agreement is found to be
void or unenforceable by a court of competent jurisdiction, the remaining
provisions of this agreement shall nevertheless be binding upon the parties with
the same force and effect as though the unenforceable part had been severed and
deleted.
8.11. Specific Performance. Inasmuch as the Securities cannot be
readily purchased or sold in the open market and the parties hereto desire to
impose certain restrictions on transfers of Securities, irreparable damage will
result in the event that this agreement is not specifically enforced and the
parties hereto agree that any damages available at law for a breach of this
agreement would not be an adequate remedy. Therefore, the provisions hereof and
the obligations of the parties hereunder shall be enforceable in a court of
equity, or other tribunal having jurisdiction, by a decree of specific
performance, and appropriate injunctive relief may be applied for and granted in
connection therewith.
8.12. 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 shall 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 parties have executed and delivered this amended and Restated
Securityholders Agreement as of the date first written above.
(Signature Pages Follow)
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FCPR L CAPITAL
Represented by: L Capital Management SAS
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Attorney-in-fact
Address:
L Capital Management
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Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇ ▇▇-▇▇-▇▇-▇▇
with a copy to:
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Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇-▇▇▇▇-▇▇▇▇
(Signature Page to Amended and Restated Securityholders Agreement)
SEAPINE INVESTMENTS, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Member
Address:
c/o Kidd & Company, LLC
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Attn: ▇▇▇▇▇ ▇. ▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(Signature Page to Amended and Restated Securityholders Agreement)
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Address:
c/o Kidd & Company, LLC
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Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ FAMILY LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address:
c/o Kidd & Company, LLC
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Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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Address:
c/o Kidd & Company, LLC
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Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Address:
c/o Kidd & Company, LLC
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Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(Signature Page to Amended and Restated Securityholders Agreement)
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇
Address:
c/o Kidd & Company, LLC
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Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Address:
c/o Kidd & Company, LLC
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(Signature Page to Amended and Restated Securityholders Agreement)
/s/ ▇▇▇▇▇▇▇ Rakowsi
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Address:
c/o Advanced Aesthetics, Inc.
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Telecopier No.: (▇▇▇)-▇▇▇-▇▇▇▇
(Signature Page to Amended and Restated Securityholders Agreement)
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as trustee of the
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Grantor Trust
Address:
c/o Troutman ▇▇▇▇▇▇▇ LLP
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Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as trustee of the
▇▇▇▇ ▇. ▇▇▇▇ Trust
Address:
c/o Troutman ▇▇▇▇▇▇▇ LLP
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Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as trustee of the
▇▇▇▇▇▇ ▇. ▇▇▇▇ Trust
Address:
c/o Troutman ▇▇▇▇▇▇▇ LLP
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(Signature Page to Amended and Restated Securityholders Agreement)
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Attorney-in-fact
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:
c/o Kidd & Company, LLC
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(Signature Page to Amended and Restated Securityholders Agreement)
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address:
c/o Kidd & Company, LLC
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇▇
(Signature Page to Amended and Restated Securityholders Agreement)