EXHIBIT 10.46
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Consulting Services Agreement
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L CAPITAL MANAGEMENT SAS
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November 25, 2003
Advanced Aesthetics, Inc.
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Gentlemen:
This is to confirm the understanding between L Capital
Management SAS, a societe par actions simplifiee ("L Capital"), and Advanced
Aesthetics, Inc., a Delaware corporation (the "Company"), with respect to the
performance by L Capital of consulting 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.
1. Services. L Capital will perform ongoing consulting
services for the Company which shall include, but shall not be limited to, the
following:
1.1 Business Plans and Budgets. L Capital 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. L Capital 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. L Capital will counsel management with
respect to the monitoring of the 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. L Capital 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, L Capital 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. L Capital 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 consulting and
related services to be performed by L Capital for the Company hereunder, the
Company shall pay to L Capital an annual consulting fee payable in quarterly
installments in arrears commencing on December 31, 2003, equal to the higher of
(a) US$445,000 and (b) 1% of the Company's gross revenues plus US$20,000 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 consulting fee is payable.
3. 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 Advisory 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 Advisory Services
Agreement.
4. Limitation on Assignment by L Capital. L Capital may not
assign its rights or duties hereunder to any party other than to Affiliates.
5. Indemnification; Limitation of Liability. The Company
shall, to the fullest extent permitted by law, indemnify L Capital and each of
its agents, officers, shareholders, employees, members, representatives, and all
others acting on its behalf (collectively with L Capital, 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,
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action, demand, dispute or proceeding of whatever kind and nature that may be
asserted against an Indemnified Party in any way arising from the activities of
L Capital 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.
6. Limit on Termination. The Company shall have no right to
terminate this agreement unless L Capital 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.
7. 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 L Capital has rendered its advice and
consultation. It is agreed that L Capital 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 L Capital. L Capital shall be free to provide similar services to
such other business enterprises or activities as L Capital may deem appropriate
without any limitation or restriction.
8. 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.
9. 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).
10. 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.
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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 consulting services
agreement by signing in the space provided below.
Very truly yours,
L CAPITAL MANAGEMENT SAS
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Attorney-in-fact
Agreed:
ADVANCED AESTHETICS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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