EXHIBIT 10.45
AMENDED AND RESTATED
SHARE TRANSFER AGREEMENT
December 20, 2005
This Amended and Restated Share Transfer Agreement is among
XxxxXxx.xxx Inc., a Delaware corporation (the "Company"), FCPR L Capital, a
fonds commun de placements a risque, represented by L Capital Management SAS, a
societe par actions simplifiee ("L Capital"), and each of the persons (other
than L Capital) who own securities of the Company, executing a signature page to
this agreement (the "Existing Stockholders").
On November 25, 2003, L Capital purchased a Convertible Note
(as defined below) from Advanced Aesthetics, Inc. ("AAI") and on June 2, 2004, L
Capital purchased from AAI the Series D Shares (as defined below). Concurrently
therewith, AAI, L Capital and the Existing Stockholders entered into a Share
Transfer Agreement (the "Original Agreement") pursuant to which the Existing
Stockholders and L Capital agreed on certain contingent rights to the shares of
common stock of AAI owned by the Existing Stockholders if L Capital achieves an
IRR of less than 25% with respect to its investment in the Convertible Note or
the Series D Shares. In connection therewith, the Existing Stockholders
delivered to the former Escrow Agent a number of shares of common stock of AAI
pursuant to an Escrow Agreement among the parties hereto and an escrow agent.
The parties hereto have entered or are entering into a Share
Exchange Agreement, pursuant to which all security holders of AAI have agreed to
exchange their AAI securities for newly issued securities of the Company.
In connection with the consummation of the Share Exchange
Agreement L Capital and the Existing Stockholders wish to amend and restate the
Original Agreement so that it is applicable to the new shares of Common Stock of
the Company that are being issued to the Existing Stockholders in exchange for
their AAI securities.
The parties agree as follows:
1. Definitions.
The following terms have the meanings indicated:
1.1 "AFFILIATE" has the meaning assigned to such term in Rule 12b-2 under the
Exchange Act; provided, however, that, in the case of L Capital, any investment
fund managed by an Affiliate of L Capital shall be deemed to be an Affiliate of
L Capital.
1.2 "ATTRIBUTABLE VALUE" means, as of a given date:
(a) with respect to any cash, the amount of such cash;
(b) with respect to any Marketable Securities as of any date, the last
reported or quoted sales price of such Marketable Securities, or if no such sale
takes place on such day,
the average of the closing bid and asked prices, as reported by the principal
exchange or system with respect to which such Marketable Securities are listed
or admitted to trading; and
(c) with respect to the Common Stock in a Public Offering, the price
per share at which the Common Stock is sold to the public in such a Public
Offering.
1.3 "COMMON EQUIVALENT SECURITIES" means Common Stock, warrants and all other
securities of the Company that may now or at any time in the future be
authorized, issued and outstanding and that represent any other direct or
indirect rights to acquire, or constitute interests or participations in, Common
Stock or rights to acquire securities that are directly or indirectly
exercisable for, convertible into or exchangeable for Common Stock.
1.4 "COMMON SHARE EQUIVALENTS" means all shares of Common Stock and all shares
of Common Stock that are issuable upon exercise, exchange or conversion of all
Common Equivalent Securities.
1.5 "COMMON STOCK" means the Company's common stock, par value $.01 per share.
1.6 "COMPANY" means XxxxXxx.xxx Inc., a Delaware corporation.
1.7 "CONVERTIBLE NOTE" means the Subordinated Convertible Promissory Note, dated
November 25, 2003, issued by AAI in the principal amount of $13,300,000 payable
to the order of L Capital.
1.8 "DAILY TRADING PRICE" means the average of the high and low trading price of
the stock for such day, in each case as reported by Bloomberg Financial, L.P. or
other reputable source.
1.9 "DAILY TRADING VOLUME" means the trading volume of the stock for such day,
as reported by Bloomberg Financial, L.P. or other reputable source.
1.10 "DAILY TRADING VALUE" means the Daily Trading Price multiplied by the Daily
Trading Volume.
1.11 "ESCROW AGENT" is defined in the first sentence of the Escrow Agreement.
1.12 "ESCROW AGREEMENT" means the Amended and Restated Escrow Agreement, dated
as of the date hereof, among the parties hereto and Xxxxxxxx Xxxxxxx LLP as
escrow agent, as the same may be amended, modified or supplemented.
1.13 "ESCROW SHARES" means the Tranche I Escrow Shares and the Tranche II Escrow
Shares.
1.14 "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
1.15 "EXISTING STOCKHOLDER" means each Person, other than L Capital, who
executes a signature page to this Agreement.
1.16 "EXISTING STOCKHOLDER COMMON SHARES" means the Tranche I Existing
Stockholder Common Shares and the Tranche II Existing Stockholder Common Shares.
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1.17 "EXISTING STOCKHOLDER DEMAND" is defined in Section 4.1(b) of the Escrow
Agreement.
1.18 "EXISTING STOCKHOLDER GROUP" means the Existing Stockholders and their
transferees.
1.19 "EXIT EVENT" means:
(a) the liquidation or dissolution of the Company;
(b) a Public Offering; or
(c) any of the following: (i) the sale, lease, exchange, transfer or
other disposition, either directly or indirectly, of assets constituting all or
substantially all of the assets of the Company and its subsidiaries taken as a
whole, to a Person or group of Persons not controlled by the Company; (ii) any
merger, consolidation or other business combination, or refinancing or
recapitalization of the Company that results in the holders of the issued and
outstanding voting securities of the Company immediately prior to such
transaction beneficially owning or controlling less than a majority of the
voting securities of the continuing or surviving entity immediately following
such transaction; or (iii) any Person or Persons acting together or which would
constitute a "group" for the purposes of Section 13(d) of the Exchange Act,
together or with any Affiliates thereof, other than the beneficial owners of
Common Stock as of November 25, 2003, and their respective Affiliates,
beneficially owning (as defined in Rule 13d-3 of the Exchange Act) or
controlling, directly or indirectly, at least 50% of the total voting power of
all classes of capital stock entitled to vote generally in the election of
directors of the Company.
1.20 "L CAPITAL" means L Capital Management SAS, a societe par actions
simplifiee.
1.21 "LVMH" means Moet Xxxxxxxx Xxxxx Vuitton S.A., a societe anonyme organized
under the laws of the Republic of France.
1.22 "MARKETABLE SECURITIES" means securities of a Person that are: (a) subject
to the reporting requirements of Section 13 or 15(d) of the Exchange Act and
listed on a national securities exchange or quoted on the Nasdaq National Market
System or the OTC Bulletin Board; or (b) quoted on the London Stock Exchange,
the Tokyo Stock Exchange or Euronext.
1.23 "PERSON" means an individual or a corporation, partnership, association,
trust, or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
1.24 "PROCEEDS" means, with respect to any property, all dividends, earnings,
interest, payments, proceeds and other distributions made with respect to such
property. The Value of any Proceeds that are neither cash nor Marketable
Securities shall be determined in good faith by the Company's Board of
Directors.
1.25 "PUBLIC OFFERING" means an underwritten public offering of Common Stock
pursuant to a registration statement on Form X-0, X-0 or S-3 (or a similar form
of general application prescribed by the SEC) filed under the Securities Act for
gross proceeds of not less than $25,000,000.
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1.26 "PUBLIC TRANSACTION" means the closing of the transactions contemplated by
the Share Exchange Agreement.
1.27 "SEC" means the United States Securities and Exchange Commission.
1.28 "SERIES D SHARES" means the 8,200 shares of Series D Preferred Stock of AAI
that L Capital purchased from AAI.
1.29 "SECURITIES ACT" means the Securities Act of 1933, as amended.
1.30 "SECURITYHOLDERS AGREEMENT" means the Amended and Restated Securityholders
Agreement, dated as of the date hereof, among L Capital and the stockholders
signatory thereto, as the same may be amended, modified or supplemented.
1.31 "SHARE EXCHANGE AGREEMENT" means the Share Exchange Agreement, dated as of
the date hereof, among AAI, the Company and the securityholders of AAI signatory
thereto.
1.32 "TRANCHE I ESCROW SHARES" means the Tranche I Existing Stockholder Common
Shares, as adjusted pursuant to Section 6(a) hereof, and all Proceeds with
respect to such Tranche I Existing Stockholder Common Shares.
1.33 "TRANCHE I EXISTING STOCKHOLDER COMMON SHARES" is defined in Section 2
hereof.
1.34 "TRANCHE II ESCROW SHARES" means the Tranche II Existing Stockholder Common
Shares, as adjusted pursuant to Section 6(a) hereof, and all Proceeds with
respect to such Tranche II Existing Stockholder Common Shares.
1.35 "TRANCHE II EXISTING STOCKHOLDER COMMON SHARES" is defined in Section 2
hereof.
1.36 "TRANSFER" means any sale, assignment, gift, transfer, conveyance or other
disposition, and any pledge or other encumbrance.
1.37 "VALUE" means, with respect to the occurrence of an Exit Event or, if
applicable, as of any other date:
(a) with respect to the Convertible Note, the sum of:
(i) the Attributable Value, as of the date of such Exit Event,
of the consideration received or to be received by L Capital for the
Common Stock issued upon conversion of the Convertible Note (including,
without limitation, all dividends on such Common Stock); and
(ii) all interest received or to be received in respect of the
Convertible Note on or prior to (or in connection with) such Exit Event
or such other date, as the case may be; and
(b) with respect to the Series D Shares, the sum of:
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(i) the Attributable Value, as of the date of such Exit Event,
of the consideration received or to be received by L Capital for the
Common Stock issued upon the conversion of the Series D Shares
(including, without limitation, all dividends on such Common Stock);
and
(ii) all dividends received or to be received in respect of
the Series D Shares on or prior to (or in connection with) such Exit
Event or such other date, as the case may be; and
(c) with respect to any Escrow Shares, the Attributable Value, as the
date of such Exit Event, of the consideration received or to be received L
Capital for such Escrow Shares.
2. Deposit of Existing Stockholder Common Shares. Simultaneously with
the execution of this agreement and the Share Exchange Agreement: (a) in
connection with L Capital's purchase of the Convertible Note on November 25,
2003, each Existing Stockholder is delivering to the Escrow Agent one or more
certificates representing the number of shares of Common Stock set forth
opposite that Existing Stockholder's name in column (a) on Schedule A (the
"Tranche I Existing Stockholder Common Shares"), together with duly executed,
undated, blank stock transfer powers with respect thereto; and (b) in connection
with the purchase by L Capital of the Series D Shares on June 2, 2004, each
Existing Stockholder is delivering to the Escrow Agent one or more certificates
representing the number of shares of Common Stock set forth opposite such
Existing Stockholder's name in column (b) on Schedule A (the "Tranche II
Existing Stockholder Escrow Shares"). From and after the date hereof and until
the expiration or termination of the obligations of the Existing Stockholders to
transfer Existing Stockholder Common Shares hereunder, no Existing Stockholder
shall sell, transfer, assign or otherwise dispose of any of the Existing
Stockholder Common Shares or Proceeds constituting the Escrow Shares in a manner
that would interfere with the rights of L Capital hereunder.
3. Right of L Capital to Receive Accrued and Unpaid Interest
and Dividends.
(a) If an Exit Event results (prior to taking into consideration any
Tranche I Escrow Shares transferred pursuant to Section 4.1(a)) in L Capital
achieving an IRR of less than 25% with respect to its investment in the
Convertible Note, then any accrued and unpaid interest on the Convertible Note
("L Capital Note Debt") will be paid by the Company to L Capital up to an amount
allowing L Capital to achieve such 25% IRR. Any L Capital Note Debt less such
amount as may be necessary to allow L Capital to achieve a 25% IRR with respect
to its investment in the L Capital Note will then be extinguished.
(b) If an Exit Event results (prior to taking into consideration any
Tranche II Escrow Shares transferred pursuant to Section 4.1(b)) in L Capital
achieving an IRR of less than 25% with respect to its investment in the Series D
Shares, then any accrued and unpaid dividends on the Series D Shares (the "L
Capital Accrued Dividends") will be paid by the Company to L Capital up to an
amount allowing L Capital to achieve such 25% IRR. Any L Capital Accrued
Dividends less such amount as may be necessary to allow L Capital to achieve a
25% IRR with respect to its investment in the Series D Shares will then be
extinguished.
4. Contingent Transfer of Escrow Shares.
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4.1 Right of L Capital to Receive Escrow Shares.
(a) If an Exit Event results (prior to taking into consideration any
Tranche I Escrow Shares transferred pursuant to the terms of this agreement, but
after taking into account any payment of L Capital Note Debt pursuant to Section
3(a)) in L Capital achieving an IRR of less than 25% with respect to its
investment in the Convertible Note, then L Capital shall be entitled to direct
the Escrow Agent within 10 Business Days after the consummation of such Exit
Event to transfer and deliver to: (i) L Capital a number of Tranche I Escrow
Shares having an aggregate Value as of the date of such Exit Event that, when
combined with the Value of the Convertible Note as of the date of such Exit
Event, would provide L Capital with an IRR of 25%; and (ii) the Existing
Stockholders the remaining Tranche I Escrow Shares, if any. In no event shall L
Capital be entitled to receive any Tranche II Escrow Shares in respect of L
Capital's investment in the Convertible Note.
(b) If an Exit Event results (prior to taking into consideration any
Tranche II Escrow Shares transferred pursuant to the terms of this agreement,
but after taking into account any payment of L Capital Accrued Dividends
pursuant to Section 3(b)) in L Capital achieving an IRR of less than 25% with
respect to its investment in the Series D Shares, then L Capital shall be
entitled to direct the Escrow Agent within 10 Business Days after the
consummation of such Exit Event to transfer and deliver to: (i) L Capital a
number of Tranche II Escrow Shares having an aggregate Value as of the date of
such Exit Event that, when combined with the Value of the Series D Shares as of
the date of such Exit Event, would provide L Capital with an IRR of 25%; and
(ii) the Existing Stockholders the remaining Tranche II Escrow Shares, if any.
In no event shall L Capital be entitled to receive any Tranche I Escrow Shares
in respect of L Capital's investment in the Series D Shares.
(c) In no event shall L Capital be entitled to receive, or share in any
distributions in respect of, or Proceeds from, any shares owned by the Existing
Stockholders other than the Escrow Shares.
(d) At any time after the date that is the 11th Business Day following
the consummation of an Exit Event, the Existing Stockholders shall be entitled
to direct the Escrow Agent, by delivering to the Escrow Agent a written
statement, to transfer and deliver the remaining Escrow Shares to the Existing
Stockholders.
4.2 Expiration of Rights Under Section 4.1. Notwithstanding anything to
the contrary in Section 4.1, L Capital shall not be entitled to receive (i) any
Escrow Shares, (ii) any of the L Capital Note Debt and (iii) any of the L
Capital Accrued Dividends, upon the occurrence of an Exit Event if at any time
prior to the occurrence of such Exit Event:
(a) the average Daily Trading Price of the Common Stock during 40
trading days in any 60-day period (the "Measuring Period") is such that if an
Exit Event would have occurred on the last day of such Measuring Period at a
price per share of Common Stock equal to such average Daily Trading Price,
without taking into account any Escrow Shares: (i) L Capital would have achieved
an IRR of not less than 25% with respect to its investment in the Convertible
Note and (ii) L Capital would have achieved an IRR of not less than 25% with
respect to its investment in the Series D Shares;
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(b) the shares of Common Stock trade on a market or exchange during the
Measuring Period (i) at an average Daily Trading Volume of [200,000] (subject to
adjustment from time to time as a result of a stock split, stock combination or
any other similar event affecting the outstanding number of shares of Common
Stock) shares or more and (ii) at an average Daily Trading Value of $500,000 or
more; and
(c) during the Measuring Period, L Capital's ability to sell the Common
Stock it owns is not prohibited by law for a period of more than 20 days in the
aggregate.
4.3 Determination of IRR Upon the Occurrence of an Exit Event.
(a) Upon the occurrence of an Exit Event, L Capital shall have an
internal rate of return, or "IRR," of at least 25% if, at an annual rate of
interest of 25%:
(i) with respect to the Convertible Note the sum of: (A) the
discounted Value of the Convertible Note (the Value of consideration
received or to be received in connection with such Exit Event shall be
discounted at an annual rate of interest of 25% from the date of such
Exit Event to November 25, 2003, and the Value of any other Proceeds in
respect of the Convertible Note shall be discounted from the date of ,
L Capital's receipt of such Proceeds to November 25, 2003); and (B) the
Value of the Tranche I Escrow Shares discounted at an annual rate of
interest of 25% from the date of such Exit Event to November 25, 2003,
is at least equal to $13,300,000; and
(ii) with respect to the Series D Shares the sum of: (A) the
discounted sum of the Value of the Series D Shares (the Value of
consideration received or to be received in connection with such Exit
Event shall be discounted at an annual rate of interest of 25% from the
date of such Exit Event to June 2, 2004, and the Value of any other
Proceeds in respect of the Series of Shares shall be discounted from
the date of L Capital's receipt of such Proceeds to June 2, 2004); and
(B) the Attributable Value of the Tranche II Escrow Shares discounted
at an annual rate of interest of 25% from the date of such Exit Event
to June 2, 2004, is at least equal to $8,200,000.
(b) In the event of an assignment by L Capital of its rights under this
agreement to LVMH or any of its subsidiaries or Affiliates, all determinations
of the transferee's IRR shall be made as if such transferee had been the
original investor and all consideration received by L Capital had been received
by the transferee.
5. Proportional Delivery of Escrow Shares. In each case where Escrow
Shares are required to be delivered to the Existing Stockholders pursuant to
this agreement, such Escrow Shares shall be delivered in the percentages set
forth opposite each Existing Stockholder's name on Schedule A or as they may
otherwise agree.
6. Certain Provisions Relating to the Escrow Shares.
(a) The number of shares of capital stock included within the Escrow
Shares subject to this agreement shall be adjusted proportionately in the event
of any increase or decrease in the number of such shares of capital stock
resulting from a stock split, stock combination or the payment of a stock
dividend with respect to such shares or other similar
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event. Any additional shares issued as contemplated by this provision shall be
delivered to the Escrow Agent to be held pursuant to the terms hereof and the
Escrow Agreement as Escrow Shares.
(b) All Proceeds, including without limitation any Proceeds resulting
from any Exit Event or any Proceeds in respect of any other Proceeds, in respect
of the Existing Stockholder Common Shares shall be assigned and paid to the
Escrow Agent to be held pursuant to terms hereof and the Escrow Agreement.
(c) The parties hereto shall cause all of the shares held by the Escrow
Agent to bear, upon the back thereof, the following legend (or a legend of
similar effect):
"THIS CERTIFICATE AND THE SECURITIES REPRESENTED HEREBY ARE
SUBJECT TO POSSIBLE REQUIRED TRANSFER PURSUANT TO THE
PROVISIONS OF A SHARE TRANSFER 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 PRINCIPAL EXECUTIVE OFFICES OF
THE COMPANY."
7. Representations
7.1 Representations of the Existing Stockholders. Each Existing
Stockholder represents and warrants that:
(a) If such Existing Stockholder is not an individual, such Existing
Stockholder has been duly organized and is validly existing and in good standing
under the laws of its jurisdiction of organization.
(b) If such Existing Stockholder is an individual, such Existing
Stockholder has full legal capacity to execute and deliver this agreement and to
perform his obligations hereunder. If such Existing Stockholder is not an
individual, such Existing Stockholder has full power and authority to execute
and deliver this agreement and to perform its obligations hereunder.
(c) If such Existing Stockholder is not an individual, this agreement
has been duly authorized by all requisite action on the part of such Existing
Stockholder.
(d) This agreement has been duly and validly executed and delivered by
such Existing Stockholder and constitutes the legal, valid and binding
obligations of such Existing Stockholder, enforceable against such Existing
Stockholder in accordance with its terms.
(e) Such Existing Stockholder owns all right, title and interest in and
to the Escrow Shares set forth opposite such Existing Stockholder's name on
Schedule A free and clear of all liens, claims and other encumbrances, other
than those that may exist under the terms of this agreement or the
Securityholders Agreement.
7.2 Survival. The representations and warranties set forth in Section
7.1 shall survive the execution and delivery of this agreement.
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8. Specific Performance. The parties agree that irreparable damage will
result in the event that this agreement is not specifically enforced and the
parties hereto agree that any damages available at law for a breach of this
agreement would not be an adequate remedy. Therefore, the provisions hereof and
the obligations of the parties hereunder shall be enforceable in a court of
equity, or other tribunal having jurisdiction, by a decree of specific
performance, and appropriate injunctive relief may be applied for and granted in
connection therewith.
9. Termination. This agreement shall terminate upon the distribution of
all of the Escrow Shares in accordance with the terms hereof and the Escrow
Agreement.
10. Miscellaneous.
Notices, Etc. All notices, consents, demands, instructions, requests and other
communications required or permitted hereunder must be in writing and shall be
deemed to have been duly given only if delivered personally, by facsimile
transmission, by first-class mail (postage prepaid, return receipt requested),
or by delivery by a recognized international courier service (all costs prepaid)
to the parties at the address of L Capital, the Company or such Existing
Stockholder specified under their respective signatures at the end of this
agreement. All such notices, requests and other communications will be deemed
given upon receipt thereof. Any party from time to time may change its address,
facsimile number or other information for the purpose of notices to that party
by giving like notice specifying such change to the other party hereto.
10.1 Further Assurances. The parties hereto will, without further
consideration, execute and deliver such further documents and instruments and
take such other actions as may be necessary or desirable to perfect the
transactions contemplated hereby.
10.2 Existing Stockholders' Representative.
(a) By its execution and delivery of this agreement, each Existing
Stockholder hereby appoints and re-confirms Xxxxxx X. Xxxxxx as such Existing
Stockholder's representative (the "Existing Stockholders' Representative") with
full power and authority to represent each Existing Stockholder and such
Existing Stockholder's successors and assigns with respect to all matters
arising under this agreement, and all actions taken by the Existing
Stockholders' Representative hereunder shall be binding upon each such Existing
Stockholder and such Existing Stockholder's successors and assigns as if
expressly ratified and confirmed in writing by each of them. Without limiting
the generality of the foregoing, the Existing Stockholders' Representative shall
have full power and authority, on behalf of each Stockholder and such Existing
Stockholder's successors and assigns, to interpret the terms and provisions of
this agreement, to dispute or fail to dispute any liability claim hereunder, to
negotiate and compromise any dispute which may arise under this agreement, and
to sign any releases or other documents with respect to any such dispute.
(b) The Existing Stockholders' Representative, or any successor
hereafter appointed, may resign and shall be discharged of his duties hereunder
upon the appointment of a successor Existing Stockholders' Representative as
hereinafter provided. In case of such resignation, or in the event of the death
or inability to act of the Existing Stockholders' Representative, a successor
shall be named from among the Existing Stockholders by the record
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holders of a majority of the Existing Stockholder Common Shares. Each such
successor Existing Stockholders' Representative shall have all the power,
authority, rights and privileges hereby conferred upon the original Existing
Stockholders' Representative, and the term "Existing Stockholders'
Representative" as used herein shall be deemed to include such successor
Existing Stockholders' Representative. Additionally, the Existing Stockholders'
Representative may be replaced at any time and for any reason (or for no reason)
by the record holders of a majority of the Existing Stockholder Common Shares.
(c) In performing any of his duties under this agreement, or upon the
claimed failure to perform his duties hereunder, the Existing Stockholders'
Representative shall not be liable to the Existing Stockholders' for any damages
or expenses that the Existing Stockholders may incur as a result of any act, or
failure to act by the Existing Stockholders' Representative under this agreement
and the Existing Stockholders' Representative shall be indemnified and held
harmless by the Existing Stockholders for all such damages or expenses;
provided, however, that the Existing Stockholders' Representative shall not be
entitled to indemnification for such damages or expenses to the extent that a
court of competent jurisdiction has finally determined that the actions or
omissions of the Existing Stockholders' Representative both: (i) were taken or
omitted not in good faith; and (ii) constituted willful default under this
agreement. Accordingly, the Existing Stockholders' Representative shall not
incur any such liability with respect to: (x) any action taken or omitted to be
taken in good faith upon advice of his counsel given with respect to any
questions relating to the duties and responsibilities of the Existing
Stockholders' Representative hereunder; or (x) any action taken or omitted to be
taken in reliance upon any document, including any written notice or
instructions provided for in this agreement, not only as to its due execution
and to the validity and effectiveness of its provisions, but also as to the
truth and accuracy of any information contained therein, which the Existing
Stockholders' Representative shall in good faith believe to be genuine, to have
been signed or presented by the purported proper Person or Persons and to
conform with the provisions of this agreement. The limitation of liability
provisions of this Section 10.2 shall survive the termination of this agreement
and the resignation of the Existing Stockholders' Representative. It is
understood nothing in this paragraph shall in any way limit the rights of L
Capital as against the Existing Stockholders in their capacity as such.
10.3 No Waiver. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
10.4 Entire Agreement. This agreement supersedes all prior and/or
contemporaneous negotiations, understandings, discussions and agreements
(written or oral) between the parties with respect to the subject matter hereof
(all of which are merged herein and therein), including, but not limited to, the
Original Agreement, and contains the sole and entire agreement among the parties
hereto with respect to the subject matter hereof.
10.5 Governing Law. This agreement shall be construed, interpreted and
enforced in accordance with, and shall be governed by, the laws of the state of
New York without regard to principles of conflicts of laws..
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10.6 Jurisdiction; Venue. Each of the parties hereto hereby irrevocably
consents and submits to the exclusive jurisdiction of the United States District
Court for the Southern District of New York in connection with any dispute
arising out of or relating to this agreement or the transactions contemplated
hereby, waives any objection to venue in such District (unless such court lacks
jurisdiction with respect to such dispute, in which case, each of the parties
hereto irrevocably consents to the jurisdiction of the courts of the State of
New York in New York County in connection with such dispute and waives any
objection to venue in the County of New York), and agrees that service of any
summons, complaint, notice or other process relating to such dispute may be
effected in the manner provided by Section 10.1.
10.7 No Assignment. No party may assign its rights or delegate its
obligations hereunder without the prior written consent of the other parties
hereto; provided, however; that L Capital may assign its rights in whole to LVMH
or any of its subsidiaries or Affiliates.
10.8 Binding Effect. This agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
10.9 Amendment and Waiver. No term or provision of this agreement may
be amended, waived, altered, modified, rescinded or terminated except by a
written instrument signed by L Capital and the members of the Existing
Stockholder Group who own at least a majority of the Common Share Equivalents
owned by all of the Existing Stockholder Group, and any such amendment, waiver,
alteration, modification, rescission or termination shall be binding on all of
the parties; provided, that no amendment, waiver, alteration, modification,
rescission or termination that adversely affects the Company shall bind the
Company without its written consent.
10.10 Severability. If any provision of this agreement is found to be
void or unenforceable by a court of competent jurisdiction, the remaining
provisions of this agreement shall nevertheless be binding upon the parties with
the same force and effect as though the unenforceable part had been severed and
deleted.
10.11 Counterparts; Effectiveness. This agreement may be executed in
one or more counterparts (including signature pages delivered by facsimile
transmission), each of which shall be deemed an original but all of which
together will constitute one and the same agreement. This agreement shall become
effective when each party hereto shall have received counterparts hereof signed
by all of the other parties hereto.
The parties have executed and delivered this Amended and Restated Share
Transfer Agreement as of the date first written above.
[The next page is the signature page]
-11-
XxxxXxx.xxx Inc.
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
Title: President
Address:
XxxxXxx.xxx Inc.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
(Signature Page to Amended and Restated Share Transfer Agreement)
FCPR L Capital
Represented by: L Capital Management SAS
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------------
Xxxxxxxx Xxxxxxxx
Attorney-in-fact
Address:
L Capital Management
00, xxxxxx Xxxxxxxxx
00000 Xxxxx
Xxxxxx
Attention: Xxxxxxxx Xxxxxxxx
Telecopier No.: x00-0 00-00-00-00
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
00, xxxxxx Xxxxxxxx
00000 Xxxxx
Xxxxxx
Attention: Xxxxxxxx X. Xxxxxx
Telecopier No.: x00-00-0000-0000
(Signature Page to Amended and Restated Share Transfer Agreement)
SEAPINE INVESTMENTS, LLC
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Member
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxx
Telecopier No.: (000) 000-0000
(Signature Page to Amended and Restated Share Transfer Agreement)
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
XXXXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxxxx XxXxxxx
-----------------------------------------
Name: Xxxxxx XxXxxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
/s/ Xxxxxxx Xxxx
--------------------------------------------
Xxxxxxx Xxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
/s/ Xxxxxxxx Xxxxxx
--------------------------------------------
Xxxxxxxx Xxxxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
(Signature Page to Amended and Restated Share Transfer Agreement)
/s/ Xxxxxxx Xxxxx
--------------------------------------------
Xxxxxxx Xxxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
/s/ Xxxxxxxx Xxxxxx
--------------------------------------------
Xxxxxxxx Xxxxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
(Signature Page to Amended and Restated Share Transfer Agreement)
/s/ Xxxxxxx Xxxxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxxx
Address:
c/o Advanced Aesthetics, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Telecopier No.: (000)-000-0000
(Signature Page to Amended and Restated Share Transfer Agreement)
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxx, as trustee of the
Xxxxxxxxx X. Xxxx Grantor Trust
Address:
c/o Troutman Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxx, as trustee of the
Xxxx X. Xxxx Trust
Address:
c/o Troutman Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxx, as trustee of the
Xxxxxx X. Xxxx Trust
Address:
c/o Troutman Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
(Signature Page to Amended and Restated Share Transfer Agreement)
SAND DOLLAR PARTNERS, L.P.
By: Sand Dollar Partners, LLC, its general
partner
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Xxxxxxx Xxxxxxx
Manager
Address:
0000 Xxxxxxx xx xxx Xxxxx
Xx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Telecopier No.:
(Signature Page to Amended and Restated Share Transfer Agreement)
/s/ Xxxxxx X. Xxxxxxx, Attorney-in-fact
--------------------------------------------
Xxxxxx Xxxxxxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
(Signature Page to Amended and Restated Share Transfer Agreement)
/s/ Xxxxxx Xxxxxxx
--------------------------------------------
Xxxxxx Xxxxxxx
Address:
c/o Kidd & Company, LLC
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
(Signature Page to Amended and Restated Share Transfer Agreement)
/s/ Xxxxxx Xxxxx
--------------------------------------------
Xxxxxx Xxxxx
Address:
0000 Xxxxx Xxxxx Xxxxxxxxx, 000X
Xxxx Xxxxx, XX 00000
Telecopier No.: (000) 000-0000
(Signature Page to Amended and Restated Share Transfer Agreement)
/s/ Xxxxx Xxxxxx
--------------------------------------------
Xxxxx Xxxxxx
Address:
0000 Xxxxxx Xxxx Xxxx
Xxxx Xxxxx, XX 00000
Telecopier No.:
(Signature Page to Amended and Restated Share Transfer Agreement)
--------------------------------------------
Xxxxx Xxxxxxx
Address:
0000 Xxxxxxx XxxXxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telecopier No.:
(Signature Page to Amended and Restated Share Transfer Agreement)
SCHEDULE A
To Share Transfer Agreement
LIST OF STOCKHOLDERS AND ESCROW SHARES
(a) (b) Number of Number
of Tranche I Tranche II
Name Escrow Shares Escrow Shares %
---- ------------- ------------- -
Seapine Investments, LLC........................
Xxxxxx X. Xxxxxx................................
Xxxxxxx Xxxxxxxx................................
XxXxxxx Family Limited Partnership..............
Xxxxxxx Xxxx....................................
Xxxxxxxxx X. Xxxx Grantor Trust.................
Xxxx X. Xxxx Trust..............................
Xxxxxx X. Xxxx Trust............................
Sand Dollar Partners, L.P.......................
Xxxxxxxx Xxxxxx.................................
Xxxxxx Xxxxxxxx.................................
Xxxxxxx Xxxxx...................................
Xxxxxx Xxxxxxx..................................
Xxxxxxxx Xxxxxx.................................
Xxxxxx Xxxxx....................................
Xxxxx Xxxxxx....................................
Xxxxx Xxxxxxx...................................
----------------------------------------------------------
Total.........................................
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