EXHIBIT 10.13
ADVANCED AESTHETICS, INC.
REGISTRATION RIGHTS AGREEMENT
December 17, 2003
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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 E
Preferred Stock, par value $0.01 per share ("Series E 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 E Preferred Stock or
otherwise 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.
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 ▇▇-▇, ▇-▇, ▇-▇ 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 (the
"Holders") of the 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(k) 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 "Registrable
Securities") of its intention to do so and of the Holders' rights under this
Section 1 at least 30 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 20 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. If a Holder decides
not to include all of its Registrable Securities in any registration statement
thereafter filed by the Company, such Holder shall nevertheless continue to have
the right pursuant to this Section 1.1 to include any Registrable Securities in
any subsequent registration statement or registration statements as may be filed
by the Company with respect to offerings of its securities, upon all the terms
and conditions set forth herein.
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.
1.3 Expenses. All expenses incurred in connection with a
registration statement pursuant to this Section 1 (excluding underwriters' and
brokers' discounts and commissions relating to shares sold by the Holders and
legal fees of counsel for the Holders), including, without limitation, all
federal and "blue sky_ registration , filing and qualification fees, printer's
and accounting fees, and fees and disbursements of counsel for the Company,
shall be borne by the Company.
2. Demand Registration.
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2.1 Right to Demand Registration.
(a) If, at any time commencing 180 days after the effective
date of the Company's initial public offering of Common Stock, the Company shall
receive a written request from Holders to register at least a majority of the
shares of Common Stock issued or issuable upon conversion of Series E Preferred
Stock on Form S-1 or any similar long form registration, or on Form S-3 or any
similar short form registration, if available (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 for purposes of
Section 2.1(c) until it has become effective and remains effective for at least
nine months (or less if all Registrable Securities included therein are sooner
sold) and only if the Holders are able to register and sell at least 75% of the
Registrable Securities and all other shares of Common Stock issued or issuable
upon conversion of Series E Preferred Stock requested to be included in the
proposed registration.
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(b) 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.
2.2 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.
(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.
(d) The Company will not include in any demand registration
under this Section 2 any securities which are not Registrable Securities without
the prior written consent of the holders of at least a majority of the
Registrable Securities requesting such registration.
2.3 Expenses. All reasonable expenses incurred in connection
with a registration statement pursuant to this Section 2 (excluding
underwriters' and brokers' discounts and commissions relating to shares sold by
the Holders and legal fees of counsel for the Holders), including, without
limitation, all federal and "blue sky" registration , filing and qualification
fees, printer's and accounting fees, and fees and disbursements of counsel for
the Company, shall be borne by the Company. Each Holder participating in a
registration pursuant to this Section 2.1 shall bear such Holder's proportionate
share (based on the total number of shares sold in such registration other than
for the account of the Company) of all discounts, commissions or other amounts
payable to underwriters or brokers, and the Holders' legal fees, in connection
with such offering by the Holders. Notwithstanding the foregoing, the Company
shall not be required to pay for any expenses of any registration proceeding
begun pursuant to this Section 2.1 if the registration request is subsequently
withdrawn at the request of the Holders of a majority of the Registrable
Securities to be registered, unless the Holders of a majority of the Registrable
Securities then outstanding agree that such registration consitutes the use by
the Holders of one demand registration pursuant to this Section 2 (in which case
such registration shall also constitute the use by all Holders of Registrable
Securities of one such demand registration); provided further, however that if
at the time of such withdrawal, the Holders have learned of a material adverse
change in the condition, business or prospects of the Company not known to
Holders at the time of their request for such registration and have withdrawn
their
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request for registration with reasonable promptness after learning of such
material adverse change, then the Holders shall not be required to pay any of
such expenses and such registration shall not constitute the use of a demand
registration pursuant hereto.
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, 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
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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.
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;
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(b) then Registrable Securities to be sold by the holders of
Common Stock that constitute "registrable securities" that were (i) converted or
exchanged from shares of the Company's preferred stock ranking senior to the
Series E Preferred Stock, (ii) held by the Company's institutional lenders or
investors or (iii) 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,
▇▇▇▇ & 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 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
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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
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,
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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 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. Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the SEC which may permit the sale
of the Registrable Securities to the public without registration, after such
time as a public market exists for the Common Stock of the Company, the Company
agrees to:
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(a) make and keep public information available, as defined for
purposes of Rule 144(c) under the Securities Act;
(b) use its best efforts to file with the SEC in a timely
manner all reports and other documents required of the Company to be filed under
the Securities Act and the Exchange Act (at any time after it has become subject
to such reporting requirements); and
(c) so long as a holder owns any Registrable Securities,
furnish to the holder forthwith upon request, a written statement by the Company
as to its compliance with the reporting requirements of Rule 144 (at any time
after 90 days following the close of the first sale of securities by the Company
pursuant to a registration statement), and of the Securities Act and the
Exchange Act (at any time after it has become subject to the reporting
requirements of the Exchange Act), a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents of the Company as
such holder may reasonably request in availing itself of any rule or regulation
of the Commission allowing a holder to sell any such securities without
registration (at any time after the Company has become subject to the reporting
requirements of the Exchange Act).
7. Mergers, Etc. The Company shall not, directly or
indirectly, enter into any merger, consolidation, or reorganization in which the
Company shall not be the surviving corporation unless the proposed surviving
corporation shall, prior to such merger, consolidation, or reorganization, agree
in writing to assume the obligations of the Company under this Agreement, and
for that purpose references hereunder to "Registrable Securities" shall be
deemed to be references to the securities that the Stockholders would be
entitled to receive in exchange for Registrable Securities under any such
merger, consolidation, or reorganization; provided, however, that the provisions
of this Agreement shall not apply in the event of any merger, consolidation, or
reorganization in which the Company is not the surviving corporation if all
Holders holding Registrable Securities are entitled to receive in exchange for
their Registrable Securities consideration consisting solely of (i) cash, (ii)
securities of the acquiring corporation that may be immediately sold to the
public without registration under the Securities Act, or (iii) securities of the
acquiring corporation that the acquiring corporation has agreed to register
within 120 days of completion of the transaction for resale to the public
pursuant to the Securities Act.
8. Miscellaneous.
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8.1 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):
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If to the Company:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Jenkens & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
If to a Stockholder, to the address or telecopier number of
such Stockholder set forth on a signature page below.
8.2 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.
8.3 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.
8.4 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.
8.5 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
(i) the obligation of any Stockholder be materially increased, except upon the
written consent of such Stockholder, or (ii) the rights of any Stockholder under
Sections 1 and/or 2 hereof be terminated 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
-10-
(assuming conversion of the Series E Preferred Stock) and all other shares of
Common Stock issuable upon conversion of Series E Preferred Stock, other than
shares of Common Stock owned by ▇▇▇▇ & 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.
8.6 No Inconsistent Agreements. The Company will not hereafter
enter into any agreement with respect to its securities that is inconsistent
with or violates any of the rights granted to the Holders in this Agreement.
8.7 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.
8.8 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.
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 reasonable
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.
[The next page is the signature page]
-11-
The parties have executed and delivered this Registration
Rights Agreement as of the date first written above.
ADVANCED AESTHETICS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
[Stockholder signatures begin on the next page]
S-1
[Advanced Aesthetics, Inc. -- Registration Rights Agreement --
Stockholder Signature Page]
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. -- Registration Rights Agreement --
Stockholder Signature Page]
