EXHIBIT 10.7
ADVANCED AESTHETICS, INC.
REGISTRATION RIGHTS AGREEMENT
November 25, 2003
The parties to this agreement are Advanced Aesthetics, 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 (the "Investor") and each of the other individuals and
entities executing a signature page to this agreement (such other individuals or
entities, the "Existing Stockholders" and, together with the Investor, the
"Stockholders"). Capitalized terms used but not defined herein have the meanings
assigned to them in the Securities Purchase Agreement dated as of November 4,
2003 between the Company and the Investor.
The Existing Stockholders own shares of Common Stock and
Warrants. The Investor owns the Convertible Note and may in the future acquire
the Investor Series D Shares, both of which are convertible into Common Stock.
The shares of Common Stock now or hereafter owned by the
Existing Stockholders, as well as the shares of Common Stock that any
Stockholder may hereafter acquire upon exercise or conversion of his, her or its
Warrants, Convertible Note or Series D Preferred Stock or otherwise are entitled
to the rights and benefits, and subject to the terms and conditions, of this
agreement, and are collectively referred to as, the "Registrable Shares."
The Company desires to provide the Stockholders with certain
rights regarding the registration of the Shares, all upon the terms and
conditions set forth below.
The parties agree as follows:
1. Piggyback Registrations.
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1.1 Right to Include Registrable Securities. If at any time
following consummation of an IPO, the Company shall propose to register any
Common Stock by means of a registration statement filed by the Company with the
SEC for sale in a public offering for its own account, or for the account of any
other Person by registration on Form XX-0, X-0, X-0 or S-3 (but not Form S-4 or
S-8) or any successor or similar forms (except for any registrations in
connection with (x) an employee benefit plan or dividend reinvestment plan or a
merger, consolidation or other business combination or (y) debt securities that
are not convertible into Common Stock) it shall give written notice to the
holders of Registrable Securities (such holders of Registrable Securities are
referred to herein as "Holders") of its intention to do so and of the Holders'
rights under this Section 1 at least 30 days prior to the filing of a
registration statement with respect to such registration with 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
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registration statement or registration statements as may be filed by the Company
with respect to offferings 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 to Holders pursuant to Section 1.1 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: (a) 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 (b) 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 No relief from Company's obligations under Section 2. No
registration effected under this Section 1 shall relieve the Company of its
obligations under Section 2 of this agreement.
2. Demand Registration.
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2.1 Right to Demand Registration.
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(a) The following Holders may give a Demand Notice: (i)
subject to Section 4.3, at any time 180 days following the Company's completion
of its first underwritten public offering on a firm commitment basis of its
Common Stock pursuant to a registration statement under the Securities Act, the
Investor or any one or more Holders of a majority of the Registrable Securities
may give a Demand Notice; (ii) Holders who are members of the Existing
Stockholder Group who collectively own a majority of the Common Share
Equivalents owned by all of the Existing Stockholder Group may give a Demand
Notice if the public offering resulting therefrom is reasonably expected to be a
Threshold Transaction; provided, however, that neither the Company nor any such
Holder shall permit a registration statement filed pursuant to such Demand
Notice to become effective unless the effectiveness of such registration
statement would be a Threshold Transaction; and (iii) at any time after the
fifth anniversary of the date hereof, the Investor may give a Demand Notice. The
Company shall not be required to effect more than one registration pursuant to
this Section 2(a)(i).
(b) Subject to Section 4.3, at any time after the Company
becomes eligible to file a registration statement on Form S-3 (or any successor
form relating to secondary offerings), any one or more Holders of a majority of
the Registrable Securities may request the Company, in writing, to effect the
registration on Form S-3 or such successor form), of all or a portion of the
Registrable Securities owned by the Holder, provided, however that the Company
shall not be required to effect more than one such registrations pursuant to
this Section 2(b) in any 12-month period, and no more than four such
registrations pursuant to this Section 2(b) in total. Upon receipt of such
written request, the Company shall, as expeditiously as possible, use all
commercially reasonable efforts to effect the registration on Form S-3, or such
successor form, of all Registrable Securities which the Company has been
requested to register.
(c) Each request for registration made by any one or more
Holders pursuant to Section 2(a) or Section 2(b) shall be referred to herein as
a "Demand Registration" and the
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number of shares requested to be registered by one or more Holders pursuant to a
Demand Registration shall be referred to herein as "Demand Shares."
(d) A registration requested pursuant to this Section 2.1
shall be deemed to have been effected following such time as the registration
statement with respect thereto has become effective.
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 "in registration" for an underwritten public
offering.
(b) 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 advised by
legal counsel that such registration may be lawfully effected.
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 pursuant to
the provisions of this agreement, the Company shall, as expeditiously as
possible:
(a) 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 SEC 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 each of 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
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the Securities Act, and such other documents, as each Holder may reasonably
request in order to facilitate the public sale or other disposition of the
Registrable Shares owned by the Holder;
(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 public sale or other
disposition in such jurisdictions of the Registrable Shares owned and 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 Section
3.1(d), be obligated to be so qualified or to so consent to general service of
process in any such jurisdiction;
(e) notify the Holders when a prospectus relating thereto is
required to be delivered under the Securities Act, upon discovery that, or upon
the happening of any event as a result of which, the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, in the light of the
circumstances under which they were made, and at the request of the Holders
promptly prepare and furnish to them a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such prospectus shall
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which they were made;
(f) pay 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, expenses and disbursements of
counsel for the Company and of its independent public accountants and all fees,
expenses and disbursements of one outside counsel to the Holders; 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 any second or other additional outside counsel to the
Holders hereunder;
(g) the Company will use a nationally recognized law firm
reasonably acceptable to the Holders in connection with any registration
pursuant to this Agreement (the Stockholders agree that the law firm of Jenkens
& Xxxxxxxxx Xxxxxx Xxxxxx LLP is deemed to be acceptable);
(h) the Holders shall have the right to select the managing
underwriter in connection with exercise of their rights pursuant to Section 2(a)
or 2(b) of this agreement where 50% or more of the shares included in the Demand
Registration are Demand Shares (in such event all underwriting expenses will be
borne by the selling shareholders in proportion to the Company's securities
owned by them which are included in the underwritten offering; provided, however
that if the Company reimburses any underwriting expenses of any person who is
participating in such underwritten offering, then the Company shall also
reimburse the expenses of the Holders to the same extent);
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(i) in connection with any registration of Registrable Shares,
the Company shall enter into all customary agreements (including in connection
with an underwritten offering, an underwriting agreement) and shall take all
other reasonable actions requested by the managing underwriter in order to
expedite or facilitate the disposition of Registrable Shares, including making
presentations at any "road shows" or analyst presentations (which are reasonable
in scope and duration and consistent with market practice for comparable
offerings and in any event not more frequent than two times in any twelve month
period), providing reasonable access to the Company, its books and records, and
its personnel and advisers and furnishing information to the Stockholders, the
underwriter(s) and their agents and representatives to enable them to undertake
due diligence and furnishing to them such opinions, comfort letters and the like
as are customary in connection with the applicable offering of securities; and
(j) cause the Registrable Securities covered by such
registration statement to be listed on a national securities exchange or on the
Nasdaq Stock Market, as applicable.
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 Section 2, 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 relevant 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. Cutbacks.
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4.1 Generally. If in the good faith judgment of the Company,
it shall determine after consultation with the managing underwriter that the
registration of the number of Registrable Securities to be included in an
offering that is registered pursuant to Section 1 would materially and adversely
affect such public offering, then the Company may reduce the number of
Registrable Shares to be included in the offering to the extent necessary to
alleviate such adverse effect. If, in accordance with the preceding sentence,
the number of shares to be included in the underwriting (pursuant to this
agreement or otherwise) is less than the total number of shares that such
holders have requested to be included, the Holder who has requested to include
such shares under this agreement and the holders of other shares who have
requested to include such shares under any other registration rights agreement
shall participate on a pro rata basis based on the relative aggregate holdings
of the Holders and other stockholders who seek to have shares registered under
such registration statement (or in any other proportion as may be agreed upon by
all stockholders seeking to exercise such rights).
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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 (which agreement
shall be in a form and contain provisions that are normal and customary) 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. Notwithstanding any other provision of this Section 4.3, none of the
Holders will, after expiration of the 180-day period following the IPO, be
subject to a hold-back under this Section 4.3 for more that one 90-day period
during any period of 12 consecutive months.
5. Indemnification.
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5.1 Indemnification by the Company. In the event of any
registration statement filed pursuant to this Agreement, the Company shall
indemnify and hold harmless the Holders, each underwriter of such Registrable
Shares 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"), against any
losses, claims, damages, or liabilities, joint or several (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, damage, 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 relating to a Holder furnished to the
Company in writing 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
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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, each seller 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 in light of the circumstances in which there were made 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 specifically 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, 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.
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(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. Information by Holders. If any information relating to a
Holder is included in any registration statement, the Holder shall furnish to
the Company such information regarding the Holder and the method of distribution
proposed by the Holder as the Company may request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in Section 1 or Section 2.
7. Rule 144 Requirements. From and after the first date that a
registration statement filed by the Company with respect to the Common Stock (or
any security into which or for which the Common Stock is hereafter exchanged) is
declared effective by the SEC, the Company agrees that it will: (a) use its best
efforts to make and keep public information available, as those terms are
understood and defined in Rule 144 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 under the Exchange Act; and (c) furnish to any holder of
Registrable Shares upon request a written statement by the Company as to its
compliance with the information requirements of said Rule 144, and of 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 to avail itself of any similar
rule or regulation of the SEC allowing it to sell any such securities without
registration.
8. Future Registration Rights Agreements. The Company hereby
covenants and agrees that it will not grant to any holder (or future holder) of
equity securities (or securities convertible into, or exercisable or
exchangeable for, equity securities) of the Company any registration rights with
respect to the registration of securities of the Company that would be
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inconsistent with, or superior to, the registration rights granted to the
Stockholders under this agreement.
9. Transfers of Certain Rights. The rights granted to any
Stockholder hereunder may only be transferred by a Stockholder in accordance
with a transfer of his, her or its Shares permitted by the Stockholders
Agreement.
10. Miscellaneous.
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10.1 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 following addresses or
facsimile numbers:
If to the Company, to:
Advanced Aesthetics, Inc.
000 X. Xxxxxxx Xxxxx, X000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: President
Telecopier No.: (000) 000-0000
with a copy to:
c/o Kidd & Company, LLC
Three Pickwick Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
and a copy to:
Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
If to a Stockholder, to the address or telecopier number of
such Stockholder set forth on a signature page below.
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.
10.2 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
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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.
10.3 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) and contains the sole and entire
agreement among the parties hereto with respect to the subject matter hereof.
10.4 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.
10.5 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 located 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.
10.6 Binding Effect. This agreement shall be binding upon and,
except as otherwise provided herein, shall inure to the benefit of the parties
hereto and their permitted successors and assigns.
10.7 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 the Company, the Investor 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 Stockholders.
10.8 No Third Party Beneficiaries. Nothing contained in this
agreement, whether express or implied, is intended, or shall be deemed, to
create or confer any right, interest or remedy for the benefit of any Person
other than as otherwise provided in this agreement.
10.9 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 void or unenforceable part had been
severed and deleted.
10.10 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
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performance, and appropriate injunctive relief may be applied for and granted in
connection therewith.
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 next page is the signature page]
-12-
The parties have executed and delivered this Registration
Rights Agreement as of the date first written above.
ADVANCED AESTHETICS, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
[Stockholder signatures begin on the next page]
S-1
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
SEAPINE INVESTMENTS, LLC
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Xxxxx X. Xxxx
Member
Address:
c/o Kidd & Company, LLC
Three Pickwick Plaza
Greenwich, CT 06830
Attn: Xxxxx X. Xxxx
Telecopier No.: (000) 000-0000
[Signatures continued on next page]
S-2
[Advanced Aesthetics, Inc. -- Registration Rights Agreement --
Stockholder Signature Page]
/s/ Xxxxxx X. Xxxxxx
------------------------------------------
Xxxxxx X. Xxxxxx
Address:
c/o Kidd & Company, LLC
Three Pickwick Xxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
/s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Xxxxxxx Xxxxxxxx
Address:
c/o Advanced Aesthetics, Inc.
000 X. Xxxxxx Xxxxx, X000
Xxxx Xxxx Xxxxx, XX 00000
Telecopier No.: (000) 000-0000
XXXXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxxxx XxXxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: GP
Address:
c/o Kidd & Company, LLC
Three Pickwick Xxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
[Signatures continued on next page]
S-3
[Advanced Aesthetics, Inc. -- Registration Rights Agreement --
Stockholder Signature Page]
/s/ Xxxxxxx Xxxx
------------------------------------------
Xxxxxxx Xxxx
Address:
c/o Kidd & Company, LLC
Three Pickwick Xxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
/s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxx, as trustee of the
Xxxxxxxxx X. Xxxx Grantor Trust
Address:
c/o Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx 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 Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
[Signatures continued on next page]
S-4
[Advanced Aesthetics, Inc. -- Registration Rights Agreement --
Stockholder Signature Page]
/s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxx, as trustee of the
Xxxxxx X. Xxxx Trust
Address:
c/o Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
SAND DOLLAR PARTNERS, L.P.
By: Sand Dollar Partners, LLC, its
general partner
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Xxxxxxx Xxxxxxx
Manager
Address:
00000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
/s/ Xxxxxxxx Xxxxxx
------------------------------------------
Xxxxxxxx Xxxxxx
Address:
c/o Kidd & Company, LLC
Three Pickwick Xxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
[Signatures continued on next page]
S-5
[Advanced Aesthetics, Inc. -- Registration Rights Agreement --
Stockholder Signature Page]
/s/ Xxxxxx Xxxxxxxx
------------------------------------------
Xxxxxx Xxxxxxxx
Address:
c/o Kidd & Company, LLC
Three Pickwick Xxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
/s/ Xxxxxxx Xxxxx
------------------------------------------
Xxxxxxx Xxxxx
Address:
c/o Kidd & Company, LLC
Three Pickwick Xxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
/s/ Xxxxxx Xxxxxxx
------------------------------------------
Xxxxxx Xxxxxxx
Address:
c/o Kidd & Company, LLC
Three Pickwick Xxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
[Signatures continued on next page]
S-6
[Advanced Aesthetics, Inc. -- Registration Rights Agreement --
Stockholder Signature Page]
/s/ Xxxxxxxx Xxxxxx
------------------------------------------
Xxxxxxxx Xxxxxx
Address:
c/o Kidd & Company, LLC
Three Pickwick Xxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
/s/ Xxxxxx Xxxxx
------------------------------------------
Xxxxxx Xxxxx
Address:
c/o Advanced Aesthetics, Inc.
000 X. Xxxxxxx Xxxxx, X000
Xxxx Xxxx Xxxxx, XX 00000
Telecopier No.: (000) 000-0000
/s/ Xxxxx Xxxxxx
------------------------------------------
Xxxxx Xxxxxx
Address:
c/o Advanced Aesthetics, Inc.
000 X. Xxxxxxx Xxxxx, X000
Xxxx Xxxx Xxxxx, XX 00000
Telecopier No.: (000) 000-0000
/s/ Xxxxx Xxxxxxx
------------------------------------------
Xxxxx Xxxxxxx
Address:
c/o Advanced Aesthetics, Inc.
000 X. Xxxxxxx Xxxxx, X000
Xxxx Xxxx Xxxxx, XX 00000
Telecopier No.: (000) 000-0000
S-7
[Advanced Aesthetics, Inc. -- Registration Rights Agreement --
Stockholder Signature Page]
