EXHIBIT 10.12
ADVANCED AESTHETICS, INC.
STOCKHOLDERS AGREEMENT
December 17, 2003
The parties to this agreement are Advanced Aesthetics, Inc., a Delaware
corporation (the "Company"), and each of the other persons executing a signature
page to this agreement (the "Stockholders").
The Stockholders are acquiring shares of the Company's common stock, par
value $0.01 per share ("Common Stock"), and/or Series E preferred stock, par
value $0.01 per share ("Series E Preferred Stock"), which is convertible into
Common Stock. The Common Stock, the Series E Preferred Stock 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 are referred
to as "Common Equivalent Securities."
The Company and the Stockholders desire to promote their mutual interests
by imposing certain limitations on the transfer of the shares of Common Stock
and other Common Equivalent Securities now owned by any Stockholder, being
acquired by any Stockholder concurrently with this agreement, and that may be
acquired from time to time after the date of this agreement by any Stockholder,
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 Common Equivalent Securities are sometimes referred to
collectively as the "Shares"), all upon the terms and conditions set forth
below.
The parties agree as follows:
1. Certain Transfer Restrictions.
(a) No Stockholder may sell, assign, give, transfer, convey or otherwise
dispose of, pledge or otherwise encumber (collectively, "Transfer") any right,
title or interest in any or all of his, her or its Shares, except that:
(i) a Stockholder may Transfer all or part of his, her or its Shares
to:
(A) the Company or such Stockholder's spouse, children,
parents, brothers, sisters, nieces or nephews or to a trust for the
benefit of any of such persons; and
(B) a corporation, limited liability company or limited or
general partnership of which the shareholders, members or partners
consist entirely of the Stockholder and/or persons or entities to
whom the Stockholder is otherwise permitted to make Transfers under
this Section 1(a)(i) or Section 1(a)(ii);
(ii) each of ▇▇▇▇ & Company, LLC and any affiliate thereof may
Transfer all or a part of his, her or its Shares to ▇▇▇▇ & Company, LLC or
other affiliate thereof;
(iii) a Stockholder may transfer his, her or its Shares in
accordance with Section 2, Section 3 or Section 4; and
(iv) a Stockholder may transfer Shares to any affiliate (as defined
in the Securities Act of 1933, as amended).
(b) Any purported Transfer in violation of this agreement shall be void
and of no force and effect.
2. Involuntary Transfers of Shares. In the event of any Involuntary
Transfer by any Stockholder of any Shares, the following procedures shall apply:
(a) If a Stockholder (the "Transferor") is deprived or divested of Shares
by any Transfer by or in which he, she or it shall be involuntarily deprived or
involuntarily divested of any right, title or interest in or to any Shares,
including, without limitation, any levy of execution, transfer in connection
with bankruptcy, reorganization, insolvency or similar proceedings (an
"Involuntary Transfer"), he, she or it shall promptly give written notice of
such Transfer in reasonable detail to the Company (an "Involuntary Transfer
Notice"). The person or persons (the "Transferee") who take or propose to take
any interest in the Shares subject or proposed to be subject to such Involuntary
Transfer (the "Subject Shares") shall hold such interest subject to the rights
of the Company and its designees set forth below.
(b) Upon receipt of an Involuntary Transfer Notice or upon discovery of an
Involuntary Transfer, the Company (and its designees) shall have the irrevocable
option, but not the obligation, to purchase the Subject Shares by giving written
notice (specifying the number of Subject Shares to be purchased) to the
Transferor within 60 days following the receipt of such Involuntary Transfer
Notice or following discovery of such Involuntary Transfer, if later. The
Company and/or any of its designees may exercise the option for all or any part
of the Subject Shares.
(c) The closing of any such sale of Subject Shares to the Company or any
of its designees, as the case may be, shall be at the offices of the Company on
the date specified in the notice pursuant to which the Company or any of such
designees, as the case may be, exercised the option pursuant to Section 2(b),
but in no event shall such closing be more than 30 days after the date of such
notice. The purchase price per share of any Subject Shares purchased pursuant to
this Section 2 shall be the amount that is equal to the fair market value of the
Subject Shares as determined in good faith by a majority of the members of the
Board of Directors of the Company as of the proposed date of their Involuntary
Transfer, payable in immediately available funds.
(d) To the extent the Subject Shares are not purchased by the Company or
its designees pursuant to this Section 2, the Transferee shall execute and
deliver to the Company an instrument, satisfactory to the Company, which
evidences the Transferee's agreement to be bound by the provisions hereof with
the same rights and obligations as the Transferor.
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3. Certain Rights to Cause Sales of Shares by Stockholders.
(a) In the event that stockholders of the Company, whether or not a party
to this agreement, who collectively own a majority of the Common Stock (the
"Selling Stockholders"), including, without limitation, the Common Stock
issuable upon exercise, exchange or conversion of all outstanding Common
Equivalent Securities that are not Common Stock (together with the Common Stock,
"Common Share Equivalents") other than options to purchase Common Stock granted
to the Company's directors, officers, employees and consultants determine to
participate in or otherwise effect a Sale Transaction, then the Selling
Stockholders shall have the right (but not the obligation) to require each
Stockholder to participate in the same transaction on the same terms and
conditions as the Selling Stockholders, subject to the right of the Selling
Stockholders in Section 3(b)(iii). The Selling Stockholders shall give the
Company and each other Stockholder of the Company written notice of such
determination not less than 30 days prior to the proposed date of the Sale
Transaction (a "Company Sale Notice"). A "Sale Transaction" means a merger or
consolidation of the Company with or into another corporation or other entity
(whether or not the Company is the surviving corporation), a reclassification,
redemption, sale or exchange of all or substantially all of the Common Stock or
other capital stock of the Company owned by the Selling Stockholders or a sale
of all or substantially all of the assets of the Company but only if,
immediately following any of the foregoing transactions, a party or parties
other than the Selling Stockholders and persons who were affiliates of the
Selling Stockholders immediately prior to such transaction own a majority of the
business, stock or assets (as applicable) of the Company or its successor.
(b) In any Sale Transaction, each Stockholder:
(i) shall be required to Transfer the same percentage of such
Stockholder's Common Share Equivalents as the percentage of Common Share
Equivalents 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) to the extent he, she or it is Transferring shares of Common
Stock, shall receive the same consideration per share of Common Stock as
is being received upon such Transfer per share of Common Stock being
Transferred by the Selling Stockholders;
(iii) may convert any shares of Series E Preferred Stock into Common
Stock prior to the consummation thereof or, to the extent he, she or it
does not so convert such Series E Preferred Stock shall receive the full
liquidation preference and accrued but unpaid dividends thereon;
(iv) to the extent he, she or it is Transferring Shares other than
shares of Common Stock or Series E Preferred Stock shall receive the same
consideration for each share of Common Stock into which his, her, or its
Shares are then exercisable or exchangeable for, or convertible into, as
is being received upon such Transfer for each share of Common Stock being
sold by the Selling Stockholders; provided, however, that each such
Stockholder shall be required to convert, exchange or otherwise transfer
or deliver to the Company any Shares representing the right to acquire
shares of Common Stock; provided, further, however, that any per-share
consideration to be received in
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respect of such Shares shall be reduced by any amount of additional
consideration then required to be paid pursuant to the terms thereof in
order to acquire the underlying shares of Common Stock; and
(v) shall not be required to make any representations, warranties
and covenants and indemnifications in such sale except with respect to the
ownership of the Shares.
(c) In any Sale Transaction, the Company 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 exchangeable for, or convertible into, Common
Stock and obtaining all consents and approvals reasonably necessary, desirable
or appropriate for such Stockholder to consummate the Sale Transaction.
Accordingly, each Stockholder:
(i) agrees to vote, or to execute and deliver written consents in
respect of, all Shares owned in connection with the approval of a Sale
Transaction and all related matters; and
(ii) affirms that such Stockholder's agreement 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 Shares
owned by a Stockholder until the earlier to occur of (x) such time as such
Shares are no longer owned by such Stockholder and (y) termination of this
agreement.
(d) With respect to all matters that are the subject of the above voting
agreement, each Stockholder hereby:
(i) (i) irrevocably appoints the President and Secretary of the
Company, and each of them, with full power of substitution and
resubstitution, together with their respective heirs, successors and
assigns, as such Stockholder's attorney-in-fact to vote and give or
withhold consent with respect to all Shares held by (or subject to a proxy
in favor of) such Stockholder from time to time in such manner as either
of them shall determine in his sole and absolute discretion, at any
meeting (whether annual or special and whether or not an adjourned
meeting) of the Company or by written consent or otherwise, giving and
granting to them all powers such Stockholder would possess if personally
present and hereby ratifying and confirming all that they shall lawfully
do or cause to be done by virtue hereof; and
(ii)
(iii) (ii) affirms that the irrevocable proxy granted above is
coupled with an interest and may not, under any circumstances, be revoked.
Each Stockholder hereby agrees to recognize the foregoing proxy holders as
the sole attorney and proxy for such Stockholder (with respect to all matters
that are subject to such
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proxy). The proxy granted in this Section 3(d) shall not terminate with respect
to any Shares owned by a Stockholder until the earlier to occur of (x) such time
as such Shares are no longer owned by such Stockholder and (y) termination of
this Agreement.
(e) In the event of a proposed Sale Transaction, a Stockholder shall in
all events be required to deliver each of the Stockholder's Shares 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.
(f) At the closing of any Sale Transaction, each Stockholder shall deliver
certificates or other instruments evidencing the Shares 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 Shares,
free and clear of all liens, claims and other encumbrances as may reasonably be
requested by the Selling Stockholders.
4. Tag-Along Rights.
(a) Other than with respect to a Transfer of shares pursuant to Section
1(a)(i), 1(a)(ii) or 2, a Stockholder may Transfer such Stockholder's Shares
only if such Stockholder (for purposes of this Section 4, an "Initiating
Stockholder"):
(i) gives the Company written notice (a "Tag Along Notice") of the
proposed transaction, including, without limitation, the date (not less
than 30 days after the date of the Tag Along Notice), time and place of
the closing thereof, the terms and conditions thereof, the aggregate
number of shares of Common Stock that the purchaser named therein (the
"Purchaser") has agreed to purchase pursuant to Section 4(b), the number
of Shares proposed to be sold by the Initiating Stockholder and a copy of
the instrument or agreement by which the Purchaser is making the grant
referred to in Section 4(a)(ii); and
(ii) the Purchaser has firmly and irrevocably granted to each
stockholder of the Company, whether or not a party to this agreement
(collectively, the "Other Stockholders") the right (but not the
obligation) to sell to the Purchaser at the same time and upon the same
terms and conditions offered to the Initiating Stockholder by the
Purchaser, the number of shares of Common Stock to be determined in
accordance with Section 4(b).
(b) The Purchaser shall purchase, and each Other Stockholder shall sell, a
number of shares of Common Stock determined as follows:
(i) the Purchaser shall, prior to the date of the Tag Along Notice,
firmly and irrevocably agree in writing to purchase from each Other
Stockholder up to the number of shares of Common Stock equal to the total
number of Common Share Equivalents then owned by such Other Stockholder
multiplied by a fraction, the numerator of which is the number of Common
Share Equivalents proposed to be sold by
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the Initiating Stockholder and the denominator of which is the total
number of Common Share Equivalents then owned by the Initiating
Stockholder; and
(ii) if the Purchaser is unable or unwilling to purchase the
aggregate number of Common Share Equivalents that could be sold by the
Initiating Stockholder and by each of the Other Stockholders (determined
in accordance with Section 4(b)(i) above), then the Purchaser shall, prior
to the date of the Tag Along Notice, firmly and irrevocably agree in
writing to purchase a maximum number of shares of Common Stock (the "Tag
Along Maximum") that the Purchaser would be willing and able to purchase.
(c) If the number of shares to be acquired by the Purchaser is determined
under Section 4(b)(ii), then the number of Common Share Equivalents to be sold
by each Other Stockholder shall equal the number of shares that such Other
Stockholder would have sold pursuant to Section 4(b)(i) multiplied by a
fraction, the numerator of which is the Tag Along Maximum and the denominator of
which is the sum of the number of Common Share Equivalents that all of the Other
Stockholders delivering a Tag Along Election would have sold pursuant to Section
4(b)(i) plus the number of Common Share Equivalents proposed to be sold by the
Initiating Stockholder in the Tag Along Notice. The number of shares to be sold
by the Initiating Stockholder shall equal the difference between the Tag Along
Maximum and the sum of the number of shares of Common Stock to be sold by the
Other Stockholders pursuant to the preceding sentence.
(d) Promptly after receipt by the Company of a Tag Along Notice, the
Company shall give a copy thereof to each of the Other Stockholders. The right
provided to the Other Stockholders pursuant to Section 4(a) shall be exercisable
by each Other Stockholder by giving written notice (which shall specify the
number of shares of Common Stock (up to the total number of shares held by such
Other Stockholder) that such Other Stockholder desires to sell) (collectively,
the "Tag Along Elections") to the Company and to the Initiating Stockholder
within 15 days after the date of delivery of the Tag Along Notice to such Other
Stockholder. Along with the Tag Along Election, each Other Stockholder
exercising such right shall deliver to the Company, as agent for such Other
Stockholder, one or more certificates or other instruments (representing no less
than the number of Common Share Equivalents determined in accordance with the
formula set forth in the first sentence of Section 4(b)(i) above) 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 Other Stockholder to such
Shares, free and clear of all liens, claims and other encumbrances, as may
reasonably be requested by the Initiating Stockholder or the Purchaser.
(e) An Initiating Stockholder shall not consummate a Transfer pursuant to
this Section 4 unless at the closing thereof the Purchaser shall purchase from
each Other Stockholder exercising its right pursuant to the preceding sentence
the number of Common Share Equivalents determined in accordance with Section
4(b).
(f) The closing of the transaction contemplated by a Tag Along Notice
shall take place at such date, time and place as is specified in such Tag Along
Notice. At such closing, the Initiating Stockholder shall deliver to the
Purchaser certificates or instruments representing the Shares to be sold by it
in such transaction in valid form for transfer with appropriate duly executed
assignments, stock powers or endorsements, as the case may be, bearing any
necessary
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documentary stamps and accompanied by such certificates of authority, consents
to transfer or other instruments or evidences of the good title of such Other
Stockholder to such Shares, free and clear of any and all liens, claims and
other encumbrances, as may reasonably be requested by the Purchaser and the
Company shall deliver to the Purchaser the shares of Common Stock to be sold by
each Other Stockholder in such transaction.
(g) The purchase price per Common Share Equivalent purchased from any
Other Stockholder shall be equal to the aggregate consideration paid to the
Initiating Stockholder divided by the aggregate number of Common Share
Equivalents sold by the Initiating Stockholder at the closing of such sale.
(h) A Purchaser under this Section 4 shall execute and deliver to the
Company an instrument, satisfactory to the Company, which evidences the
transferee's agreement to be bound by the provisions hereof with the same rights
and obligations as the Stockholder; and any Initiating Stockholder shall cause
each such Purchaser to agree to the foregoing as a condition to such purchase.
(i) At the closing of the transaction, the Purchaser shall, and the
Initiating Stockholder shall cause the Purchaser to, remit to the Other
Stockholders selling their Shares, that portion of the sale proceeds to which
each such Other Stockholder is entitled by reason of such Other Stockholders'
participation in such transaction and, in the event that the sum of the number
of shares elected to be sold by the Other Stockholders and the number of shares
to be sold by the Initiating Stockholder exceeds the Tag Along Maximum, any
stock certificates representing their respective pro rata shares of the amount
of such excess.
5. Rights to Purchase Additional Securities.
(a) Except for Excluded Issuances, if the Company proposes to sell to any
person (the "Offeree") any shares of Common Stock or any other Common Equivalent
Security (the "Offered Securities"), the Company shall also offer (a "Preemptive
Offer") each of the Stockholders the right to purchase, at the same price and
upon the other terms as the Offered Securities are proposed to be sold to the
Offeree the percentage of Offered Securities that is equal to the percentage of
Common Share Equivalents owned by such Stockholder at the time of such
Preemptive Offer.
(b) Notice of each Stockholder's acceptance, in whole or in part, of a
Preemptive Offer shall be evidenced by a writing signed by such Stockholder and
delivered to the Company prior to the end of the 10 day period following the
date of such Preemptive Offer, setting forth such portion of the Offered
Securities as such Stockholder elects to purchase. Each such Stockholder shall
purchase such Offered Securities on the date and in the manner set forth in the
Preemptive Offer.
(c) "Excluded Issuances" means (i) all Common Equivalent Securities that
are outstanding as of the date of this agreement; (ii) all Common Equivalent
Securities issued in connection with any agreement for the acquisition by the
Company or any of its subsidiaries of all or any substantial part of the assets,
or capital stock, of any business or entity; (iii) all Common Equivalent
Securities issued to employees, consultants, officers or directors of the
Company in connection with any stock option, stock purchase or stock bonus plan,
agreement or arrangement approved by the Company's Board of Directors; (iv)
securities issued in connection
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with obtaining a lease financing, whether issued to a lessor, guarantor or other
person; (v) securities issued in connection with any stock split, stock dividend
or recapitalization of the Company; (vi) securities issued to the Company's
vendors or customers or other persons in similar commercial situations; and
(vii) any shares of Common Stock issuable upon exercise, exchange or conversion
of any Common Equivalent Securities referred to in the preceding clauses (i)
through vi).
6. Reports. The Company shall provide to each person who is a Stockholder
on the date of this agreement:
(a) as soon as available after the end of each fiscal quarter that is not
the end of the Company's fiscal year, copies of the Company's consolidated
balance sheet as of the end of such quarter and the related consolidated
statements of income for the portion of the fiscal year ended with the last day
of such quarter; and
(b) as soon as available after the end of each fiscal year, copies of the
Company's consolidated balance sheet as of the end of such fiscal year and the
related consolidated statements of income for such fiscal year.
7. Reclassification. In the event that any Shares should, as a result of a
stock split or stock dividend or combination of shares or any other change or
exchange for other securities by reclassification, reorganization,
redesignation, merger, consolidation, recapitalization, split-up, spinoff,
partial or complete liquidation, sale of assets, distribution to Stockholders,
combination of shares or otherwise, be increased or decreased or changed into or
exchanged for a different number or kind of shares of capital stock or other
securities of the Company or of another corporation, the number of Shares held
by the Stockholders shall be appropriately and proportionately adjusted to
reflect such action and the terms and provisions of this agreement shall apply
to all of the capital stock of any class of the Company now owned or that may be
issued hereafter to the Stockholders in consequence of any event.
8. Purchase for Investment; Legend on Certificate. All of the Shares held,
being acquired or to be held or acquired by each Stockholder have been, are
being, and will be acquired for investment and not with a view to the
distribution thereof and no Transfer of the Shares may be made except in
compliance with this agreement and applicable federal and state securities laws.
All the stock certificates for such Shares now or hereafter owned by the
Stockholders shall have indorsed in writing, stamped or printed, upon the back
thereof, the following legend (or a legend of similar effect):
"THIS CERTIFICATE AND THE SECURITIES REPRESENTED HEREBY ARE
SUBJECT TO AND TRANSFERABLE ONLY IN ACCORDANCE WITH THE
PROVISIONS OF A STOCKHOLDERS AGREEMENT. A COPY OF THAT AGREEMENT,
AS IT MAY BE AMENDED FROM TIME TO TIME, IS MAINTAINED WITH THE
CORPORATE RECORDS OF THE COMPANY AND IS AVAILABLE FOR INSPECTION
AT THE EXECUTIVE OFFICES OF THE COMPANY."
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE
SECURITIES OR BLUE SKY LAWS AND MAY
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NOT BE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SUCH ACT OR UNDER SUCH STATE
SECURITIES OR BLUE SKY LAWS."
9. Termination. Notwithstanding anything to the contrary contained herein,
each provision of this agreement other than the ability of the Company to place
on all stock certificates for the Shares the second legend in Section 8 (which
expressly shall survive) shall automatically and without further action
terminate upon (i) the closing of an underwritten public offering of Common
Stock pursuant to a registration statement (other than a registration of
employee benefit plan securities on form S-8 on any successor form) that has
been filed under the Securities Act of 1933 and declared effective by the
Securities and Exchange Commission and (ii) the consummation of a Sale
Transaction unless, prior to such consummation, the Company shall give the
Stockholders written notice that such Sale Transaction shall not terminate this
agreement. No Stockholder shall have any obligation under this agreement at any
time when such Stockholder is not the record or beneficial owner of any shares
of Common Stock or any other Common Equivalent Security but such obligations
shall again apply to such Stockholder when and if such Stockholder again becomes
the record or beneficial owner of any of shares of Common Stock or any other
Common Equivalent Security.
10. Miscellaneous.
10.1 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; (c) 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:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Jenkens & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
If to a Stockholder, to the address or telecopier number set forth on such
stockholder's signature page attached below.
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10.2 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.
10.3 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. This agreement
shall not be assignable by any Stockholder except as otherwise provided herein.
10.4 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 provisions hereof prohibited
or unenforceable in any respect.
10.5 Amendments, 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 owned by ▇▇▇▇ & Company, LLC and its affiliates and a
majority in interest of all other Shares, in each case 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 Common Share Equivalents that constitute
Shares (other than upon exercise of options to purchase Common Stock granted to
the Company's directors, officers, employees and consultants). 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.
10.6 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 out-of-pocket costs
and expenses and all reasonable out-of-pocket attorneys' fees associated with
the retention of such counsel shall be borne by the other parties hereto with
respect to whom the enforcing party shall have enforced its rights.
10.7 Further Assurances. The parties hereto agree to take or cause to be
taken all such corporate and other action as may be necessary to effect the
intent and purposes of this agreement.
10.8 Specific Performance. Inasmuch as the Shares cannot be readily
purchased or sold in the open market and the parties hereto desire to impose
certain restrictions on transfers of Shares, 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
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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. Such remedies and all other remedies provided for in this
agreement shall, however, be cumulative and not exclusive and shall be in
addition to any other remedies which any party may have under this agreement or
otherwise.
10.9 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 principles of
conflicts of laws of such state.
10.10 Counterparts. This agreement may be executed in one or more
counterparts each of which shall be deemed an original but all of which together
shall constitute one and the same instrument, and all signatures need not appear
on any one counterpart.
10.11 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]
The parties have executed and delivered this Stockholders Agreement as of
the date first written above.
ADVANCED AESTHETICS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
[Stockholder signatures begin on the next page]
S-1
THE ▇▇▇▇▇ ▇▇▇▇▇▇▇ HEALTH SYSTEM
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
THE ▇▇▇▇▇ ▇▇▇▇▇▇▇ UNIVERSITY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Address for both of the above Stockholders:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
with a copy to:
The ▇▇▇▇▇ ▇▇▇▇▇▇▇ Health System Corporation
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
and
The ▇▇▇▇▇ ▇▇▇▇▇▇▇ University
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
S-2
[Advanced Aesthetics, Inc. -- Stockholders Agreement -- Stockholder
Signature Page]
