EXHIBIT 10.30
ADVANCED AESTHETICS, INC.
REGISTRATION RIGHTS AGREEMENT
June 30, 2003
The parties to this agreement are Advanced Aesthetics, Inc., a
Delaware corporation (the "Company"), and each of the other individuals or
entities executing a signature page to this agreement (collectively, the
"Stockholders").
Simultaneously with the execution and delivery of this
agreement, the Stockholders are acquiring shares of the Company's Series A
Preferred Stock, par value $0.01 per share ("Series A Preferred Stock"), which
are convertible into the Company's common stock, par value $0.01 per share
("Common Stock").
The shares of Common Stock that any Stockholder may hereafter
acquire upon conversion of his, her or its shares of Series A Preferred Stock
are the only shares of capital stock of the Company entitled to the rights and
benefits, and subject to the terms and conditions, of this agreement, and are
collectively referred to as, the "Shares."
Subject to the terms and conditions set forth in that certain
stockholders agreement dated this date among the parties, (the "Stockholders
Agreement"), the Company desires to provide the Stockholders with certain rights
regarding the registration of the Shares, all upon the terms and conditions set
forth below.
The parties agree as follows:
1. Piggyback Registrations.
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1.1 Right to Include Registrable Securities. If at any time
following the consummation of the Company's initial public offering, the Company
shall propose to register any Common Stock, whether or not for sale for its own
account, under the Securities Act of 1933 or any subsequent similar federal
statute and the rules and regulations thereunder (the "Securities Act"), by
registration on Form XX-0, X-0, X-0 or S-3 (but not Form S-4 or S-8) or any
successor or similar forms (except for any registrations in connection with (x)
an employee benefit plan or dividend reinvestment plan or a merger,
consolidation or other business combination or (y) debt securities that are not
convertible into Common Stock) it shall give written notice to the holders of
Shares that (i) have not been previously registered pursuant to a registration
statement that shall have become effective under the Securities Act and (ii) may
not be disposed of as permitted by, and in compliance with, Rule 144 or Rule 145
(or successor provisions) under the Securities Act (the foregoing Shares,
together with any additional shares of Common Stock issued in a stock split or
stock dividend, are referred to, collectively, as "Registrable Securities")
(such holders of Registrable Securities are referred to herein as "Holders") of
its intention to do so and of the Holders' rights under this Section 1 at least
15 days prior to the filing of a registration statement with respect to such
registration with the Securities and Exchange Commission (the "SEC"). Upon the
written request of any Holder made within 10 days after the receipt of that
notice, which request shall specify the Registrable Securities intended to be
registered and disposed of by such Holder, the Company shall, subject to the
provisions hereof, use its
commercially reasonable efforts to include in such registration statement all
Registrable Securities that the Company has been so requested to register by
such Holder.
1.2 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.
2. Demand Registration.
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2.1 Right to Demand Registration.
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(a) If, at any time after the first anniversary of the date of
the consummation of the Company's initial public offering of Common Stock, the
Company shall receive a written request from Holders to register at least
two-thirds of the shares of Common Stock issued or issuable upon conversion of
Series A Preferred Stock (of which not less then one-third of such shares will
be Registrable Securities originally subject to this agreement), all of which
are at such time eligible for registration hereunder (a "Demand Notice"), the
Company shall promptly give written notice of such proposed registration to all
other Holders and shall offer to include in such proposed registration any
Registrable Securities requested to be included in such proposed registration by
the Holders who shall respond in writing to the Company's notice within 10 days
after receipt by the Holders in question of such notice (which response shall
specify the number of Registrable Securities proposed to be included in such
registration); provided, however, that in the event the number of Registrable
Securities included in the registration is reduced pursuant to Section 4.1, the
registration shall not be counted as the demand for registration by any Holder
for purposes of Section 2.1(c) unless at least two-thirds of the Registrable
Securities and all other shares of Common Stock issued or issuable upon
conversion of Series A Preferred Stock and registered to be included in the
proposed registration shall be so included.
(b) A registration requested pursuant to this Section 2.1
shall be deemed to have been effected following such time as the registration
statement with respect thereto has become effective.
(c) The Company shall not be obligated to file a registration
statement and cause it to become effective more than once under this Section
2.1.
2.3 Limits on Demand Rights.
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(a) The Company shall not be obligated to file a registration
statement and cause it to become effective if at the time the Company receives a
Demand Notice the Company is engaged in an underwritten public offering.
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(b) The Company may, on one occasion, delay the filing of any
registration statement pursuant to a Demand Notice for a period of up to 90 days
after the date of delivery of the Demand Notice by giving the Holders sending
the Demand Notice written notice of such delay.
(c) If, while a registration request is pending pursuant to
Section 2.1, the Company has been advised by legal counsel that (i) the filing
of a registration statement would require the disclosure of a material
transaction or other factor that the Company reasonably determines in good faith
would have a material adverse effect on the Company or (ii) the Company then is
unable to comply with SEC 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 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 requirements of the
SEC, as the case may be, and (y) 60 days after the Company has been so advised
by legal counsel.
3. Registration Procedures; Listing.
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3.1 Obligations of the Company. In connection with the
registration of any Registrable Securities under the Securities Act as provided
in Section 1 or Section 2, the Company shall:
(a) use its commercially reasonable efforts to prepare and
file with the SEC the requisite registration statement to effect such
registration and thereafter use its commercially reasonable efforts to cause
such registration statement to become and remain effective (subject to clause
(b) below); provided, however, that the Company may discontinue any registration
of its securities that are not Registrable Securities at any time prior to the
effective date of the registration statement relating thereto;
(b) use its commercially reasonable efforts to prepare and
file with the Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary to
keep such registration statement effective and to comply with the provisions of
the Securities Act with respect to the disposition of all Registrable Securities
covered by such registration statement for such period as shall be required for
the disposition of all of such Registrable Securities; provided, however, that
such period need not exceed 90 days;
(c) furnish to the Holders such number of conformed copies of
such registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such number of copies of the prospectus
contained in such registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed under Rule 424 under
the Securities Act, in conformity, with the requirements of the Securities Act,
and such other documents, as the Holders may reasonably request;
(d) use its commercially reasonable efforts (x) to register or
qualify all Registrable Securities and other securities covered by such
registration statement under such other securities or blue sky laws of such
states of the United States of America where an exemption is not available and
as the Holders shall reasonably request, (y) to keep such registration or
qualification in effect for so long as such registration statement remains in
effect,
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and (z) to take any other action that may reasonably be necessary or advisable
to enable the Holders to consummate the disposition in such jurisdictions of the
securities to be sold by the Holders, except that the Company shall not for any
such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not, but for the requirements
of this paragraph (d), be obligated to be so qualified or to so consent to
general service of process in any such jurisdiction;
(e) notify the Holders when a prospectus relating thereto is
required to be delivered under the Securities Act, upon discovery that, or upon
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 any material fact required to be stated therein
or necessary to make the statements therein not misleading, in the light of the
circumstances under which they were made, and at the request of the Holders
promptly prepare and furnish to them a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such prospectus shall
not include an untrue statement of a material fact or omit 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 under which they were made;
(f) pay, in pro rata portions relative to their respective
holdings of Registrable Securities being registered hereunder, all expenses
incident to the Company's performance of or compliance with its obligations
hereunder, including, without limitation, all listing fees, all printing
expenses, the fees and disbursements of counsel for the Company and of its
independent public accountants; provided, however, that the foregoing obligation
of the Company shall exclude, and the Holders shall pay, underwriters fees and
underwriting discounts and commissions in respect of the Registrable Securities
being registered hereunder as well as any fees and expenses of counsel to the
Holders hereunder; and
(g) cause the Registrable Securities to be listed on a
national securities exchange or on the Nasdaq National Stock Market.
3.2 Obligations of the Holders.
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(a) The Company may require the Holders, after receipt thereby
of a written request from Holders pursuant to Section 1.1 or a Demand Notice
pursuant to Section 2.1(a), to furnish the Company such information regarding
the Holders and the distribution of the Holders' Registrable Securities as the
Company may from time to time reasonably request in writing, based on its
reasonable belief that such information is required to be disclosed in the
Registration Statement pursuant to the Securities Act and applicable state
securities laws.
(b) Upon receipt of any notice from the Company of the
happening of an event of the kind described in Section 3.1(e), the Holders shall
forthwith discontinue their disposition of Registrable Securities pursuant to
the registration statement relating to such Registrable Securities until the
Holders' receipt of the copies of the supplemented or amended prospectus
contemplated by Section 3.1(e) and, if so directed by the Company, the Holders
shall deliver to the Company all copies, other than permanent file copies, then
in the Holders' possession, of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice.
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4. Underwritten Offerings.
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4.1 Underwriter Cutbacks. If any managing underwriter for a
public offering contemplated by Section 1 or 2 advises the Company of its belief
that the number or type of Registrable Securities to be included in such
offering would adversely affect such offering, then the Company shall include in
such registration, to the extent of the number and type that the Company is so
advised can be sold in (or during the time of) such offering:
(a) first, all securities proposed by the Company to be sold
for its own account;
(b) then Registrable Securities to be sold by the holders of
Common Stock that constitute "registrable securities" that were (A) convened or
exchanged from shares of the Company's preferred stock ranking senior to the
Series A Preferred Stock, (B) held by the Company's institutional lenders or
investors or (C) were received upon exercise of warrants held by any holders of
any preferred stock or debt issued to the Company's institutional lenders or
investors;
(c) then, Registrable Securities to be sold by the Holders and
all other shares of Common Stock outstanding on the date hereof or subsequently
acquired by the holders thereof or that constitute "Registrable Securities"
under and as defined in registration rights agreements containing piggyback
registration rights intended to have the same priority as those provided in this
Section 4.1 to be sold by the holders thereof, including, without limitation,
Xxxx & Co., LLC and its affiliates in proportion to the respective numbers of
their Registrable Securities that are proposed to be sold in such offering by
the Holders and the other Holders, as the case may be; and
(d) finally, other securities to be sold by other holders of
securities in proportion to the respective numbers of securities proposed to be
sold in such offering by such holders.
4.2 Underwriting Agreement. The Holders shall become a party
to any underwriting agreement negotiated between the Company and the
underwriters in any underwritten public offering hereunder and shall make all
representations and warranties to and shall enter into all agreements with the
Company and the underwriters and shall deliver all opinions of counsel and other
documents as shall be reasonably requested of them and shall make all
representations and warranties required by law, customarily given or reasonably
requested of selling shareholders by an underwriter in an underwritten public
offering.
4.3 Holdback Agreements. If the Company, in connection with an
underwritten offering of securities for its own account, at any time shall
register shares of Common Stock under the Securities Act for sale to the public
(other than on Forms S-4 or S-8 or a shelf registration), the Holders shall not
directly or indirectly sell, transfer or otherwise dispose of or encumber any
Shares or enter into any swap or other arrangement that transfers to another all
or part of the economic consequences of ownership of the Shares (other than
those Shares included in such registration pursuant to Sections 1 or 2) without
the prior written consent of the managing underwriter 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
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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. The Company may
legend and impose stop transfer instructions on any certificate evidencing
Registrable Securities relating to the restrictions provided in this Section
4.3.
5. Indemnification.
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5.1 Indemnification by the Company. In the event of any
registration statement filed pursuant to Sections 1 or 2, the Company shall
indemnify and hold harmless the Holders and their respective directors, officers
and affiliates and each other individual or entity, if any, who controls (within
the meaning of the Securities Act) any Holder (each of the foregoing, a "Holder
Indemnitee"), insofar as losses, claims, damages, or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) ("Losses") to
a Holder Indemnitee arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any such registration
statement, any preliminary prospectus, final prospectus, or summary prospectus
contained therein, or any amendment or supplement thereto, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances in
which they were made not misleading, and the Company shall reimburse each Holder
Indemnitee for any legal or any other fees, costs and expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, liability; action or proceeding; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon an untrue statement or omission made in reliance upon
and in conformity with information furnished to the Company by or on behalf of a
Holder or such underwriter, as the case may be, for use in the preparation
thereof; and provided, further, however that the Company shall not be liable to
any Holder Indemnitee in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of such Person's failure to send or give a copy of the final prospectus, as
the same may be then supplemented or amended, to the Person asserting an untrue
statement or alleged untrue statement or omission or alleged omission at or
prior to the written confirmation of the sale of Registrable Securities to such
Person if such statement or omission was corrected in such final prospectus so
long as such final prospectus, and any amendments or supplements thereto, have
been furnished to such underwriter or any Holder, as applicable.
5.2 Indemnification by the Holders. If any Registrable
Securities are included in any registration statement, the Holders of such
Registrable Securities so registered shall, severally and not jointly, indemnify
and hold harmless the Company and each director, officer and affiliate of the
Company, and each other individual or entity, if any, who controls (within the
meaning of the Securities Act) the Company (each of the foregoing, a "Company
Indemnitee") insofar as Losses to a Company Indemnitee arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in such registration statement, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or an omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if such statement or alleged statement or omission or
alleged omission was made in reliance upon and in conformity with written
information pertaining to such Holder and furnished to the Company by such
Holder for use in the preparation of such registration statement, preliminary
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prospectus, final prospectus, summary prospectus, amendment or supplement,
provided, however that no Holder shall have any liability under this Section 5.2
for any amount in excess of the net proceeds actually received by such Holder
from the sale of the Registrable Securities included in such registration
statement.
5.3 Notice of Claims, Etc.
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(a) Promptly after receipt by an indemnified party of notice
of the commencement of any action or proceeding involving a claim referred to in
Sections 5.1 or 5.2, such indemnified party will, if a claim in respect thereof
is to be made against an indemnifying party, immediately give written notice to
the latter of the commencement of such action; provided, however that the
failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its indemnity obligations, except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
unless in the reasonable judgment of counsel for such indemnified party, a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim (in which case the indemnified party shall be entitled
to retain separate counsel as provided below), the indemnifying party shall be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified to the extent that it may wish and
at any time, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof other
than reasonable costs related to the indemnified party's cooperation with the
indemnifying party; provided, however that the indemnified party may, at its own
expense, retain separate counsel to participate in such defense
(b) No indemnifying party shall be liable for any settlement
of any action or proceeding effected without its written consent, which consent
shall not be unreasonably withheld. No indemnifying party shall, without the
consent of the indemnified party, consent to entry of any judgment or enter into
any settlement that 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.
5.4 Contribution. If indemnification shall for any reason be
held by a court to be unavailable to an indemnified party in respect of any
loss, claim, damage or liability, or any action in respect thereof, then, in
lieu of the amount paid or payable under Section 5.1 or Section 5.2, as
applicable, the indemnified party and the indemnifying party shall contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating the same), (a) in
such proportion as is appropriate to reflect the relative fault of the Company
on the one hand and the Holders on the other hand that resulted in such loss,
claim, damage or liability, or action in respect thereof, with respect to the
statements or omissions that resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations or (b) if the allocation provided by item (a) above is not
permitted by applicable law, in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Holders on the other, as determined by a court of competent jurisdiction. No
individual or entity guilty of fraudulent
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misrepresentation (within the meaning of the Securities Act) shall be entitled
to contribution from any individual or entity who was not guilty of such
fraudulent misrepresentation. In addition, no individual or entity shall be
obligated to contribute hereunder any amounts in payment for any settlement of
any action or claim, effected without such individual or entity's consent, which
consent shall not be unreasonably withheld.
6. Miscellaneous.
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6.1 Notices; Etc. All notices and other communications
required or permitted to be given pursuant to this agreement shall be in writing
signed by the sender, and shall be deemed duly given (a) on the date delivered
if personally delivered; (b) on the date sent by telecopier with automatic
confirmation by the transmitting machine showing the proper number of pages were
transmitted without error; (a) on the next business day after being sent by
Federal Express or other recognized overnight mail service for next day or next
business day delivery; or (d) five business days after mailing, if mailed by
United States postage-prepaid certified or registered mail, return receipt
requested, in each case addressed to the parties at the following addresses or
telecopier numbers (or such other address or telecopier number as may be
specified in a notice given in accordance with the provisions hereof):
If to the Company:
c/o Kidd & Company, LLC
Three Pickwick Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
with a copy to:
Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
If to a Stockholder, to the address or telecopier number of
such Stockholder set forth on a signature page below.
6.2 No Waiver. No course of dealing and no delay on the part
of any party hereto in exercising any right, power or remedy conferred by this
agreement shall operate as a waiver thereof or otherwise prejudice such party's
rights, powers and remedies conferred by this agreement or shall preclude any
other or further exercise thereof or the exercise of any other right, power and
remedy.
6.3 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. A
Stockholder may only assign his, her or its rights hereunder in accordance with
a transfer of his, her or its Shares permitted by the Stockholders Agreement and
only pursuant to a written instrument in form and substance satisfactory to the
Company in which the transferee agrees to assume the obligations of such
Stockholder hereunder.
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6.4 Severability. Any provision of this agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereby waive any provision of law which renders
any pr6visions hereof prohibited or unenforceable in any respect.
6.5 Amendment, Etc. No term or provision of this Agreement may
be amended, waived, altered, modified, rescinded or terminated except by a
written instrument signed by the Company and the holders of at least a majority
in interest of the Shares at the time such instrument is signed by such persons,
and any such amendment, waiver, alteration, modification, rescission or
termination shall be binding on all of the Stockholders, but in no event shall
the obligation of any Stockholder be materially increased, except upon the
written consent of such Stockholder; provided, however that a waiver shall, in
any event, be effective against the person who signs it. For purposes of the
foregoing, a "majority in interest" of the Shares means a majority of the
Registrable Securities (assuming conversion of the Series A Preferred Stock) and
all other shares of Common Stock issuable upon conversion of Series A Preferred
Stock, other than shares of Common Stock owned by Xxxx & Co., LLC and its
affiliates, successors and assigns. In addition, the Company may waive
performance of any obligation owing to it, as to some or all of the
Stockholders, or agree to accept alternatives to such performance, without
obtaining the consent of any Stockholder.
6.6 Law Governing. This agreement shall be governed by and
construed in accordance with the law of the state of Delaware, applicable to
agreements made and to be performed entirely in Delaware, without regard to the
principals of conflicts of law of such state.
6.7 Entire Agreement. This agreement contains, and is intended
as, a complete statement of all the terms of the arrangements between the
parties with respect to the matters provided for, supersedes any previous
agreements and understandings between the parties with respect to those matters
and cannot be changed or terminated orally.
[The next page is the signature page]
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The parties have executed and delivered this Registration
Rights Agreement as of the date first written above.
ADVANCED AESTHETICS INC.
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name:
Title:
[Stockholder signatures begin on the next page]
S-1
/s/ Xxxxx Xxxxxxxx
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Name:
Address:
0000 Xxxxxxx Xxxx Xx
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XXX, XX 00000
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Telecopier No: (____) _____- _________
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Name:
Address:
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Telecopier No: (____) _____- _________
S-2
[Advanced Aesthetics, Inc. - Registration Rights
Agreement - Stockholder Signature Page]
