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EXHIBIT 10.12
STOCK REPURCHASE AGREEMENT
STOCK REPURCHASE AGREEMENT made and entered into as of the 26th day of
October, 1996, by and between STYLING TECHNOLOGY CORPORATION, a Delaware
corporation (the "Company"), and XXXXXXX X. XXXXXXXXX ("Xxxxxxxxx").
RECITALS
X. Xxxxxxxxx currently holds an aggregate of 807,851 shares (the
"Shares") of the Company's common stock, par value $.0001 per share (the "Common
Stock").
B. The Company is in the process of effecting an initial public
offering of its common stock (the "IPO") pursuant to a registration statement
filed with the Securities and Exchange Commission on September 20, 1996 (the
"Registration Statement").
C. The Company and Xxxxxxxxx have determined that it would be in their
mutual best interests for Xxxxxxxxx to sell the Shares to the Company and
terminate his involvement with the Company.
D. The Agreement shall take effect on the closing date of the IPO (the
"Effective Date").
E. To assure the consummation of the transactions contemplated hereby,
the parties are delivering this Agreement, the Promissory Note identified below,
and the Stock Certificates for the Shares pursuant to an Escrow Agreement with
an escrow agent (the "Escrow Agent") of even date.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. PURCHASE OF STOCK. On the Effective Date, the Company shall
purchase from Xxxxxxxxx, and Xxxxxxxxx shall sell to the Company, the Shares.
Contemporaneously with the execution and delivery of this Agreement, Xxxxxxxxx
shall deliver to the Escrow Agent pursuant to the Escrow Agreement the stock
certificates representing the Shares, endorsed in blank or with stock powers
endorsed in blank attached.
2. PAYMENT OF PURCHASE PRICE. In consideration of the sale of
the Shares to the Company or its designee, the Company shall pay Xxxxxxxxx the
purchase price (the "Purchase Price"), on the Effective Date as follows:
(a) PROMISSORY NOTE. Contemporaneously with the
execution of and of this Agreement, the Company has executed and delivered to
the Escrow Agent
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pursuant to the Escrow Agreement a promissory note in the original principal
amount of $4 million in the form set forth as Exhibit A hereto (the "Note").
(b) REIMBURSABLE EXPENSES. On the Effective Date, the
Company shall pay to Xxxxxxxxx an amount equal to Xxxxxxxxx'x reasonable
out-of-pocket expenses (documented to the extent documentation is reasonably
available) incurred in connection with his services to the Company (the
"Reimbursable Expenses") by wire transfer or cashier's check in such manner as
Xxxxxxxxx shall have notified the Company in writing not less than 48 hours
prior to the Effective Date. For purposes of this Section 2(b) any expenses
aggregating up to $50,000 shall be deemed to be reasonable. Xxxxxxxxx hereby
acknowledges and agrees that, upon payment by the Company of the Reimbursable
Expenses in the manner prescribed by Xxxxxxxxx, Xxxxxxxxx shall have no further
claim or rights against the Company with respect to services rendered to the
Company.
3. TERMINATION OF AGREEMENT. This Agreement shall terminate,
and be null and void, on April 30, 1997 unless the Effective Date occurs prior
to such date. Upon such termination of this Agreement, the Escrow Agent will
return the Shares to Xxxxxxxxx and the Note to the Company.
4. REPRESENTATIONS AND WARRANTIES OF XXXXXXXXX. Xxxxxxxxx
represents and warrants to the Company as follows:
(a) OWNERSHIP OF SHARES. Xxxxxxxxx has good,
marketable and unencumbered title to the Shares, and there are no restrictions
on Xxxxxxxxx'x right to transfer the Shares pursuant to this Agreement.
(b) AGREEMENT NOT IN BREACH OF OTHER INSTRUMENTS. The
execution and delivery of this Agreement, the consummation of the transactions
hereby contemplated, and the fulfillment of the terms hereof will not result in
the breach of any term or provision of, or constitute a default under, or
conflict with, or cause the acceleration of any obligation under, any agreement
or other instrument of any description to which Xxxxxxxxx is a party or by which
Xxxxxxxxx is bound, or any judgment, decree, order or award of any court,
governmental body or arbitrator, or any law, rule, or regulation applicable to
Xxxxxxxxx.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to Xxxxxxxxx as follows:
(a) POWER TO EXECUTE AGREEMENT. The Company has the
corporate power and authority to execute, deliver, and perform this Agreement,
and this Agreement is the legal and binding obligation of the Company.
(b) AGREEMENT NOT IN BREACH OF OTHER INSTRUMENTS. The
execution and delivery of this Agreement, the consummation of the transactions
hereby contemplated, and the fulfillment of the terms hereof, will not result in
the breach of any term or provision of, or constitute a default under, or
conflict with, or cause the acceleration of any obligation under,
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any agreement or other instrument of any description to which the Company is a
party or by which the Company is bound, or any judgment, decree, order, or award
of any court, governmental body, or arbitrator, or any law, rule, or regulation
applicable to the Company.
6. CONTINUATION AND SURVIVAL OF REPRESENTATIONS AND
WARRANTIES. Each of the representations and warranties contained in this
Agreement shall survive the consummation of the transactions contemplated by
this Agreement.
7. RELEASE. Effective on the Effective Date, each of the
parties hereto hereby releases and forever discharges each other party hereto,
and such other party's respective shareholders, officers, directors, employees,
agents, representatives, family members, heirs, successors, and assigns, of and
from any and all obligations, defaults, acts, actions, causes of action, suits,
proceedings, disputes, rights, claims, and demands, at law or in equity (whether
real or contingent, known or unknown), that such party ever had or now has
relating to or arising from the actions or omissions of such other party or such
other party's respective shareholders, officers, directors, employees, agents,
representatives, family members, heirs, successors and assigns other than
arising through the commission of fraud by such other party; provided, however,
that nothing set forth in this Section 7 shall release any of the parties hereto
from any breach of the covenants, representations, or warranties set forth in
this Agreement or from the performance of any of the obligations set forth in
this Agreement or any documents or instrument delivered pursuant hereto.
8. INDEMNIFICATION. Effective on the Effective Date, the
Company indemnifies and holds harmless Xxxxxxxxx against any losses, claims,
damages, or liabilities to which Xxxxxxxxx may become, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereof) arise out of any
and all of his activities on behalf of the Company and except for any losses,
claims, damages or liabilities arising from his commission of fraud.
9. OTHER OBLIGATIONS OF THE PARTIES.
(a) NON-DISPARAGEMENT. No party hereto shall publicly
disparage any other party hereto or any of their respective shareholders,
directors, officers, employees, agents, representatives, family members, heirs,
successors, or assigns, or take any action that would reasonably be expected to
cause any adverse public relations or embarrassment to any of such persons or to
otherwise injure or impair the business prospects of any of such persons.
(b) COMMUNICATIONS. Xxxxxxxxx shall refrain from
communications regarding the Company with any person, owner, director, officer,
employee, agent, or representative of any Acquired Business (as defined in the
Registration Statement) or any lender or potential lender to the Company, any
investment banking, brokerage or other financial institution, in each case
except with the specific written consent of the Company, and shall direct any
communications regarding the Company received by Xxxxxxxxx from any Acquired
Business, lender, investment banking, brokerage or other financial institution
to Xxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxx or Xxxxx Xxxxxxx.
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(c) RETURN OF BOOKS AND RECORDS. Promptly following
execution of this Agreement, Xxxxxxxxx shall deliver to the Company all
documents, records, reports, agreements, correspondence, plans, models, bank
statements, computer software or disks, or other information ("Information")
respecting the Company, the Acquired Businesses or the IPO. Xxxxxxxxx may retain
copies of any Information. The Company will provide Xxxxxxxxx with 15 copies of
the final prospectus relating to the IPO promptly upon their becoming available
and will provide him a "bound volume" of the IPO to the extent and at the same
time as they are provided to members of the IPO working group.
(d) TRANSITION OF INFORMATION. In view of Xxxxxxxxx'x
participation in negotiations, discussion, correspondences and other
communications with third parties respecting the acquisitions, financings and
other matters respecting the Company, Xxxxxxxxx agrees to provide any and all
information (whether in writing or verbally) within his knowledge regarding such
matters as may be reasonably requested by Company's Chief Financial Officer,
legal counsel, accountants or investment bankers; provided, that following the
Effective Date, Xxxxxxxxx may request and receive reasonable compensation for
providing such information.
10. FURTHER ASSURANCES. Each of the parties hereto shall
execute and deliver all other instruments and take all other actions that the
other party hereto may reasonably request from time to time to effectuate the
transactions provided for herein.
11. PROVISIONS SEVERABLE. The provisions of this Agreement are
independent of and severable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
Further, if a court of competent jurisdiction determines that any provision of
this Agreement is invalid or unenforceable as written, the court may interpret,
construe, rewrite or revise such provision, to the fullest extent allowed by
law, so as to make it valid and enforceable consistent with the intent of the
parties.
12. ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the
entire agreement and understanding between the parties hereto with respect to
the subject matter hereof and supersedes all prior and contemporaneous
agreements, understandings, inducements, and conditions, express or implied,
oral or written, of any nature whatsoever with respect to the subject matter
hereof. The express terms hereof control and supersede any course of performance
or usage of the trade inconsistent with any of the terms hereof. This Agreement
may not be modified or amended other than by an agreement in writing signed by
each of the parties hereto.
13. BINDING NATURE OF AGREEMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, personal representatives, successors, and assigns.
14. GOVERNING LAW. This Agreement shall be governed in
accordance with Delaware law, notwithstanding any Delaware or other
conflict-of-laws provision to the contrary.
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15. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
as against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories. Any photographic or facsimile copy of this Agreement, with
signatures reproduced on one or more sets of signature pages, shall be
considered for all purposes as if it were an executed counterpart of this
Agreement.
16. NOTICES. All notices required or permitted to be given
hereunder shall be in writing and shall be deemed made, given and delivered (i)
when delivered in person; (ii) if by facsimile transmission, 24 hours after
transmitter's confirmation of the receipt of such transmission; (iii) if by a
courier delivery service providing overnight or "next-day" delivery, on the next
business day after deposit with such service; or (iv) three days after being
deposited in the United States mail, postage prepaid, registered or certified
mail, in each case addressed as follows:
If to the Company:
Styling Technology Corporation
Xxx Xxxx Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxx X. Xxxxxxx
With a copy to:
X'Xxxxxx, Cavanagh, Anderson,
Xxxxxxxxxxxxx & Xxxxxxxx
Xxx Xxxx Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxx, Esq.
If to Xxxxxxxxx:
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
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with a copy to:
Xxxxxx & Xxxxxx, P.C.
Attention: Xxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Telefax: (000) 000-0000
and/or to such other respective addresses and/or addressees as may be designated
by notice given in accordance with the provisions of this paragraph.
17. NON-WAIVER. The failure in any one or more instances of a
party to insist upon performance of any of the terms, covenants, or conditions
of this Agreement, to exercise any right or privilege in this Agreement
conferred, or the waiver by said party of any breach of any of the terms,
covenants, or conditions of this Agreement, shall not be construed as a
subsequent waiver of any such terms, covenants, conditions, rights, or
privileges, but the same shall continue and remain in full force and effect as
if no such forbearance or waiver had occurred. No waiver shall be effective
unless it is in writing and signed by an authorized representative of the
waiving party. A breach of any representation, warranty, or covenant shall not
be affected by the fact that a more general or more specific representation,
warranty, or covenant was not also breached.
18. ATTORNEYS' FEES. In the event of any claim, controversy,
or dispute arising out of or relating to this Agreement, or the breach hereof,
the prevailing party shall be entitled to recover court costs and attorneys'
fees set forth by the court and not the jury.
19. REMEDIES CUMULATIVE. The remedies of the parties hereto
under this Agreement are cumulative and shall not exclude any other remedies to
which any party may be lawfully entitled.
20. TITLES NOT TO AFFECT INTERPRETATION. The titles of
paragraphs and subparagraphs contained in this Agreement are for convenience
only, and they neither form a part of this Agreement nor are they to be used in
the construction or interpretation hereof.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first set forth above.
STYLING TECHNOLOGY CORPORATION, a
Delaware corporation
By:
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Xxx X. Xxxxxxx
Its: Chief Executive Officer and
Chairman of the Board
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XXXXXXX X. XXXXXXXXX
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AMENDMENT TO STOCK REPURCHASE AGREEMENT
AMENDMENT TO STOCK PURCHASE AGREEMENT made and entered into on the 31st
day of October, 1996, by and between STYLING TECHNOLOGY CORPORATION, a Delaware
corporation (the "Company"), and XXXXXXX X. XXXXXXXXX ("Xxxxxxxxx").
RECITALS
A. The Company and Xxxxxxxxx are parties to a Stock Repurchase
Agreement dated as of October 26, 1996 (the "Agreement").
B. The Company and Xxxxxxxxx have determined that it is in their mutual
best interests to amend the Agreement as set forth herein.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein have the
meanings assigned them in the Agreement.
2. PAYMENT OF PURCHASE PRICE. Section 2 of the Agreement is
hereby amended in its entirety as follows:
In consideration of the sale of the Shares to the
Company, the Company shall pay Xxxxxxxxx $1,800,000
by wire transfer pursuant to wire transfer
instructions specified by Xxxxxxxxx in writing to the
Company no less than 48 hours prior to the Effective
Date. In addition, the Company shall reimburse
Xxxxxxxxx for his out-of-pocket expenses (the
"Reimbursable Expenses") incurred in connection with
his services to the Company in the amount of $50,000
pursuant to the same wire instructions. Xxxxxxxxx
agrees to provide such documentation relating to the
Reimbursable Expenses to the extent it is reasonably
available. Xxxxxxxxx hereby acknowledges and agrees
that, upon payment by the Company of the Reimbursable
Expenses in the manner prescribed by Xxxxxxxxx,
Xxxxxxxxx shall have no further claim or rights
against the Company with respect to services rendered
to the Company.
3. PROMISSORY NOTE. All references in the Agreement to the
Note are hereby deleted, and the Note shall be returned to the Company and
cancelled on the Effective Date.
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4. ESCROW AGREEMENT. The Escrow Agreement is hereby amended
and replaced in its entirety by the form of Escrow Agreement attached hereto.
5. AGREEMENT REMAINS IN EFFECT. Except as specifically amended
hereby, the Agreement remains in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this amendment to the Agreement on the date first written above.
STYLING TECHNOLOGY CORPORATION, a Delaware
corporation
By:_____________________________________
Xxx X. Xxxxxxx
Chief Executive Officer
________________________________________
Xxxxxxx X. Xxxxxxxxx
