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EXHIBIT 10.24
STOCK PURCHASE AGREEMENT
DATED AS OF AUGUST 3, 1998
AMONG
STYLING TECHNOLOGY CORPORATION,
XXXXX X. XXXX,
XXXXX X. XXXX,
AND
XXXXXX X. XXXXXXXXX
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STOCK PURCHASE AGREEMENT
AGREEMENT dated August 3, 1998 ("Agreement") among STYLING TECHNOLOGY
CORPORATION, a Delaware corporation ("Buyer"); and XXXXX X. XXXX, XXXXX X. XXXX,
AND XXXXXX X. XXXXXXXXX (such individuals individually called "Shareholder" and
together called "Shareholders").
Shareholders collectively own 157,880 shares of Common Stock, no par
value, of Ft. Pitt Acquisition, Inc., a Pennsylvania corporation ("Company"),
comprising 58.6 percent of the outstanding shares of capital stock of such
company on a fully diluted basis (hereinafter sometimes called the "Stock").
Shareholders also collectively own an undivided interest in 492 shares of the
Company through ownership of partnership interests in Ft. Pitt Partners I, a
Pennsylvania general partnership (the "Partnership Interests"). Unless the
context otherwise requires, for purposes of Section 3.1 and Section 5, the term
"Company" includes Ft. Pitt Acquisition, Inc. and Ft. Pitt-Framesi, Ltd.
("Framesi of USA, Inc.") ("Subsidiary").
Buyer and Shareholders desire that Buyer acquire the Stock and the
Partnership Interests on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual covenants set forth herein, the parties, intending to be legally bound,
agree as follows:
SECTION 1
PURCHASE OF STOCK
1.1 PURCHASE OF STOCK. Each Shareholder hereby sells, conveys, transfers,
and assigns to Buyer, free and clear of all liens, pledges, claims, and
encumbrances of every kind, nature, and description, and Buyer hereby purchases
and accepts from each Shareholder, the shares of Stock set forth beside the
signature of each Shareholder to this Agreement and the Partnership Interests.
SECTION 2
PURCHASE PRICE
2.1 PURCHASE PRICE. The purchase price for the Stock and the Partnership
Interests sold pursuant to Section 1 above shall be $30.0 million of which $25.0
million shall be payable at the Closing and approximately $1.667 million shall
be payable (together with interest on the unpaid principal balance at a rate
equal to six percent per annum) on each of the first three annual anniversary
dates of the Closing, in each case payable to Shareholders pursuant to their
written instructions in accordance with their proportionate share ownerships set
forth beside their respective signatures to this Agreement.
SECTION 3
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS. Except as otherwise set
forth in Shareholders' Disclosure Schedule heretofore delivered by Shareholders
to Buyer, Shareholders jointly and severally represent and warrant to Buyer as
follows:
(a) DUE INCORPORATION, GOOD STANDING, AND QUALIFICATION. Company is a
corporation duly organized, validly existing, and in good standing under the
laws of the jurisdiction of its incorporation with all requisite corporate power
and authority to own, operate, and lease its assets and
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properties and to carry on its business as now being conducted. Company is not
subject to any material disability by reason of the failure to be duly qualified
as a foreign corporation for the transaction of business or to be in good
standing under the laws of any jurisdiction. Schedule 3.1(a) hereto constitutes
a list setting forth, as of the date of this Agreement, each jurisdiction in
which Company is qualified to do business.
(b) CAPITAL STOCK. As of the date hereof, Company has an authorized
capital stock consisting of 315,586 shares of Common Stock, no par value, of
which 255,639 shares are issued and outstanding. All of the issued and
outstanding shares of capital stock of Company have been duly authorized and
validly issued and are fully paid and nonassessable.
(c) OPTIONS, WARRANTS, AND RIGHTS. Company does not have outstanding
any options, warrants, or other rights to purchase, or securities or other
obligations convertible into or exchangeable for, or contracts, commitments,
agreements, arrangements, or understandings, to issue, any shares of its capital
stock or other securities.
(d) SUBSIDIARIES. Company owns ninety percent of the issued and
outstanding capital stock of Subsidiary free and clear of all claims, liens,
charges, and encumbrances. All of the issued and outstanding shares of capital
stock of Subsidiary have been duly authorized and validly issued and are fully
paid and nonassessable. Company does not own, directly or indirectly, any
capital stock or other equity securities of any corporation or have any direct
or indirect equity or ownership interest in any corporation or other business,
other than with respect to its subsidiary.
(e) BOOKS AND RECORDS. The books of account and other corporate
records of Company are complete and accurate in all material respects and have
been maintained in accordance with good business practices, and the matters
contained therein are appropriately reflected in Company's financial statements.
The minute books and stock records of Company previously provided to Buyer are
complete and accurate in all material respects and all signatures included
therein are the genuine signatures of the persons whose signatures are required.
Company has delivered to Buyer true and complete copies of its charter and
bylaws as currently in effect.
(f) DIRECTORS, OFFICERS, AND BANK ACCOUNTS. Schedule 3.1(f) is a
correct and complete list of all directors and officers of Company, all bank
accounts and safe deposit boxes of Company, and all persons authorized to sign
checks drawn on such accounts and to have access to such safe deposit boxes.
(g) FINANCIAL STATEMENTS. The Consolidated Balance Sheets of Company
as of December 31, 1996 and December 31, 1997 as well as the Consolidated
Statements of Earnings, the Consolidated Statements of Stockholders' Equity, and
the Consolidated Statements of Cash Flows of Company for the three years ended
December 31, 1997, and all related schedules and notes to the foregoing, have
been reported on by Deloitte & Touche LLP, independent public accountants, and
the Consolidated Balance Sheet of Company as of March 31, 1998 and the
Consolidated Statement of Earnings, the Consolidated Statement of Shareholders'
Equity, and the Consolidated Statement of Cash Flows of Company for the three
months ended March 31, 1998 have been prepared by Company without audit. All of
the foregoing financial statements have been prepared in accordance with
generally accepted accounting principles (subject, in the case of the March 31,
1998 financial statements, to normal year-end adjustments and the absence of
footnotes), which were applied on a consistent basis (except as defined therein)
and present fairly, in all material respects, the financial position, results of
operations, and changes in financial position of Company as of their respective
dates
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and for the periods indicated. Company has no material liabilities or
obligations of a type that would be included in a balance sheet prepared in
accordance with generally accepted accounting principles, except as and to the
extent disclosed or reflected in the Consolidated Balance Sheet of Company as of
March 31, 1998 ("Company's Base Balance Sheet") or incurred since the date of
that balance sheet in the ordinary course of business.
(h) ACTIONS IN THE ORDINARY COURSE OF BUSINESS. Since the date of
Company's Base Balance Sheet, Company (i) has not taken any action outside the
ordinary and usual course of business; (ii) has not borrowed any money or become
contingently liable for any obligation or liability of another; (iii) has not
failed to pay any of its debts and obligations as they become due; (iv) has not
incurred any debt, liability, or obligation of any nature to any party, except
for obligations arising from the purchase of goods or the rendition of services
in the ordinary course of business; and (v) has not failed to use its best
efforts to preserve its business organization intact, to keep available the
services of its employees and independent contractors, and to preserve its
relationships with its customers, suppliers, and others with which it deals.
(i) NO MATERIAL CHANGE. Since the date of Company's Base Balance
Sheet, there has not been and there is not threatened (i) any material adverse
change in the financial condition, business, assets, properties, or operating
results of Company other than as would affect the hair care product industry
generally, (ii) any loss or damage (whether or not covered by insurance) to any
of the assets or properties of Company, which materially affects or impairs its
ability to conduct its business, or (iii) any mortgage or pledge of any assets
or properties of Company, or any indebtedness incurred by Company, other than
indebtedness, not material in the aggregate, incurred in the ordinary course of
business.
(j) TITLE TO PROPERTIES. Company has good and marketable title to all
of its real and personal assets and properties, including all assets and
properties reflected in Company's Base Balance Sheet or acquired subsequent to
the date of Company's Base Balance Sheet, except assets or properties disposed
of subsequent to the date of Company's Base Balance Sheet in the ordinary course
of business. Such assets and properties are subject to no mortgage, indenture,
pledge, lien, claim, encumbrance, charge, security interest or title retention,
or other security arrangement, except for liens for the payment of federal,
state, and other taxes, the payment of which is neither delinquent nor subject
to penalties, and except for other liens and encumbrances incidental to the
conduct of the business of Company or the ownership of its assets or properties,
which were not incurred in connection with the borrowing of money or the
obtaining of advances and which do not in the aggregate materially detract from
the value of the assets or properties of Company or materially impair the use
thereof in the operation of its business, except in each case as disclosed in
Company's Base Balance Sheet. All leases pursuant to which Company leases any
substantial amount of real or personal property are valid and effective in
accordance with their respective terms.
(k) CONDITION OF ASSETS AND PROPERTIES. The buildings, equipment,
machinery, fixtures, furniture, furnishings, office equipment, and all other
tangible personal assets and properties of Company presently used in, or
necessary for the operation of, Company's business, do not require any repairs
other than normal maintenance and are in good operating condition and in a state
of reasonable maintenance and repair, except for ordinary wear and tear.
(l) REAL ESTATE. Company has no interest as owner, lessor, lessee, or
otherwise in any real estate, except as set forth in Schedule 3.1(l).
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(m) LITIGATION. There are no actions, suits, proceedings, or other
litigation pending or, to Shareholders' knowledge , threatened against Company,
at law or in equity, or before or by any federal, state, municipal, or other
governmental department, commission, board, bureau, agency, or instrumentality
that, if determined adversely to Company, would individually or in the aggregate
have a material adverse effect on the business, assets, properties, operations,
operating results, prospects, or condition, financial or otherwise, of Company.
(n) RIGHTS AND LICENSES. To Shareholders' knowledge, Company is not
subject to any material disability or liability by reason of its failure to
possess any patent, patent right, trademark, trademark right, trade name, trade
name right, or license. Company has all licenses, permits, approvals, and
authorizations of whatever kind and type, government or private, applied for or
pending (collectively "Licenses and Permits") necessary for the conduct of the
business conducted by it and the ownership and use of its assets and properties
and the premises occupied by it, and the conduct of its business as presently
conducted. Schedule 3.1(n) hereto contains a true, correct, and complete list of
all Licenses and Permits used in the conduct of Company's business.
(o) TAXES. Company has duly filed in correct form all Tax Returns
relating to the activities of Company required or due to be filed (with regard
to applicable extensions) on or prior to the date hereof. All such Tax Returns
are complete and accurate in all material respects, and Company has paid or made
provision for the payment of all Taxes that have been incurred or are due or
claimed to be due from Company by federal, state, or local taxing authorities
for all periods ending on or before the date hereof, other than Taxes or other
charges that are not delinquent or are being contested in good faith and have
not been finally determined and have been disclosed to Buyer. The amounts set up
as reserves for Taxes on the books of Company are sufficient in the aggregate
for the payment of all accrued and unpaid Taxes (including any interest or
penalties thereon). No claims for Taxes or assessments are being asserted) or,
to Shareholders' knowledge, threatened against Company. Company has furnished to
Buyer a list of all Tax Returns filed for it. For purposes of this Agreement,
the term "Taxes" shall mean all taxes, charges, fees, levies, or other
assessments, including, without limitation, income, gross receipts, excise,
property, sales, transfer, license, payroll, and franchise taxes, imposed by the
United States, or any state, local, or foreign government or subdivision or
agency thereof; and such term shall include any interest, penalties, or
additions to tax attributable to such assessments or to the failure to file any
Tax Return; and the term "Tax Return" shall mean any report, return, or other
information required to be supplied to a taxing authority or required by a
taxing authority to be supplied to any other person.
(p) ACCOUNTS RECEIVABLE. The accounts receivable of Company have been
acquired in the ordinary course of business, are valid and enforceable, and are
subject to no defenses, deductions, set-offs, or counterclaims, except to the
extent of the reserve reflected in Company's Base Balance Sheet (in accordance
with generally accepted accounting principles consistently applied) or in such
other amount that is not material in the aggregate.
(q) CONTRACTS. Except as disclosed in Schedule 3.1(q), Company is not
a party to (i) any plan or contract providing for bonuses, pensions, options,
stock purchases, deferred compensation, retirement payments, or profit sharing,
(ii) any collective bargaining or other contract or agreement with any labor
union, (iii) any lease, installment purchase agreement, or other contract with
respect to any real or personal property used or proposed to be used in its
operations, excepting, in each case, items included within aggregate amounts
disclosed or reflected in Company's Base Balance Sheet, (iv) any employment
agreement or other similar arrangement not terminable by it upon 30 days or less
notice without material penalty to it, (v) any contract or agreement for the
purchase of any commodity,
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material, fixed asset, or equipment in excess of $100,000, (vi) any contract or
agreement creating an obligation of $100,000 or more, (vii) any contract,
agreement, mortgage, or lease, which by its terms is not terminable by Company
without material penalty to it, (viii) any loan agreement, indenture, promissory
note, conditional sales agreement, or other similar type of arrangement, or (ix)
any material license agreement. All mortgages, leases, contracts, agreements,
and other arrangements (including any contracts, agreements, and other
arrangements with S.r.1 Framesi, an Italian company, or Xxxxxxx Xxxxxxxxx
(collectively, the "Xxxxxxxxx Agreements")) to which Company is a party are
valid and enforceable in accordance with their terms; Company and, to the
knowledge of Shareholders, all other parties to each of the foregoing have
performed all material obligations required to be performed to date; neither
Company nor, to Shareholders' knowledge, any such other party is in material
default or in material arrears under the terms of any of the foregoing; and, to
the knowledge of Shareholders, no condition exists or event has occurred that,
with the giving of notice or lapse of time or both, would constitute a material
default under any of them.
(r) COMPLIANCE WITH LAW AND OTHER REGULATIONS. Company is in
compliance in all material respects with all requirements (including those
relating to environmental matters) of federal, state, or local law and all
requirements of all governmental bodies and agencies having jurisdiction over
it, the conduct of its business, the use of its assets and properties, and all
premises occupied by it. To Shareholders' knowledge, there is no environmental
contamination, toxic waste, or other discharge, spill, construction component,
structural element or condition, adversely affecting any of the properties of
Company, nor has Company received any official notice or citation that any of
its properties in any material way contravene any federal, state, or local law
or regulation relating to environmental, health, or safety matters, including
without limitation any requirements of the Comprehensive Environmental Response
Compensation and Liability Act ("CERCLA") or OSHA requirements. Without limiting
the foregoing, Company has properly filed all reports, paid all monies, and
obtained all licenses, permits, certificates, and authorizations needed or
required for the conduct of its business and the use of its assets and
properties and the premises occupied by it in connection therewith and is, to
Shareholders' knowledge, in compliance in all material respects with all
conditions, restrictions, and provisions of all of the foregoing. Company has
not received any notice from any federal, state, or local authority or any
insurance or inspection body that any of its assets, properties, facilities,
equipment, or business procedures or practices fails to comply with any
applicable law, ordinance, regulation, building, or zoning law or requirement of
any public authority or body.
(s) EMPLOYEE BENEFIT AND EMPLOYMENT MATTERS. Company has fulfilled its
obligations, if any, under the minimum funding standards of Xxxxxxx 000 xx xxx
Xxxxxx Xxxxxx Employee Retirement Income Security Act of 1974 ("ERISA") and the
regulations and published interpretations thereunder with respect to each "plan"
(as defined in Section 3(3) of ERISA and such regulations and published
interpretations) in which employees of Company are eligible to participate and
each such plan is in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published
interpretations. Company has not incurred any unpaid liability to the Pension
Benefit Guaranty Corporation (other than for the payment of premiums in the
ordinary course) or to any such plan under Title IV of ERISA. The employment of
each employee of Company is terminable at will without material cost to Company.
Company has complied in all material respects with all other applicable federal,
state, and local laws relating to the employment of labor including, but not
limited to, the provisions thereof relative to wages, hours, collective
bargaining, working conditions, and payment of taxes of any kind, and Company is
not liable for any arrears of wages or any taxes or penalties for failure to
comply with any of the foregoing or has any obligations for any vacation, sick
leave, or other compensatory time. All officers and independent contractors of
Company are paid salaries or other compensation in accordance with the amounts
set forth in Shareholders' Disclosure
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Schedule, and Shareholders' Disclosure Schedule correctly and accurately sets
forth all salaries, expenses, and personal benefits paid to or accrued for all
directors, officers, and principal shareholders of Company as of the date of
this Agreement, all of which are reflected as appropriate in Company's Base
Balance Sheet.
(t) INSURANCE. Company maintains in full force and effect insurance
coverage on its assets, properties, premises, operations, and personnel in such
amounts as Company deems appropriate. Schedule 3.1(t) hereto contains a
description (identifying insurer, coverage, premiums, named insured,
deductibles, and expiration date) of all policies of fire, liability, and other
forms of insurance that currently are, or at any time within the past five years
have been, maintained in force by or for the account of Company with respect to
the business and assets of Company (such policies are hereinafter referred to as
the "Policies"). Company has been continuously, and is presently, insured by
insurers unaffiliated with Company with respect to its property and the conduct
of its business in such amounts and against such risks as Company has reasonably
deemed adequate to protect its business and assets, including, without
limitation, liability insurance. The insurance coverage provided by the Policies
presently in force will not in any material respect be affected by, and will not
terminate or lapse by reason of, the transactions contemplated hereby.
(u) NO PAYMENTS TO DIRECTORS, OFFICERS, SHAREHOLDERS, OR OTHERS. Since
the date of Company's Base Balance Sheet, there has not been any purchase or
redemption of any shares of capital stock of Company or any transfer,
distribution, or payment by Company, directly or indirectly, of any assets or
properties to any director, officer, shareholder, or other person other than the
payment of compensation for services actually rendered at rates not in excess of
the rates prevailing on the date of Company's Base Balance Sheet and dividend
distributions in the ordinary course of business consistent with past practices.
(v) INTELLECTUAL PROPERTY. Company owns or holds all of the rights to
use all intellectual property rights that are used in the operation of the
business of Company, including, without limitation, all patents and applications
therefor, know how, unpatented inventions, trade secrets, product formulas,
packaging styles and methods, business and marketing plans, ideas for products
or production developed or used by the Company, copyrights and applications
therefor, trademarks and applications therefor, service marks and applications
therefor, trade names and applications therefor, and all names, logos, and
slogans used by Company (collectively "Intellectual Property"), including the
Intellectual Property set forth on Schedule 3.1(v). Schedule 3.1(v) hereto sets
forth a true, complete, and correct list of all material Intellectual Property
owned or used by Company or any of its subsidiaries. Except as set forth in
Schedule 3.1(v), Company owns all rights with respect to, and has good and
marketable title to, all of the trademarks and formulas that are used in the
Business. Except as set forth in Schedule 3.1(v), Company is not, and following
the Closing, neither Buyer nor Company will be, obligated to pay any royalty or
other payment with respect to any of such formulas. To the knowledge of
Shareholders, none of the matters covered by the Intellectual Property, nor any
of the products or services sold or provided by Company, nor any of the
processes used or the business practices followed by Company, infringes or has
infringed upon any trademark, trade name, trade secret, fictitious name, service
xxxx, patent, or copyright owned by any person or entity (or any application
with respect thereto), or constitutes unfair competition. Except as set forth in
Schedule 3.1(v), Company is not, and following the Closing neither Buyer nor
Company will be, obligated to pay any royalty or other payment with respect to
any of the Intellectual Property. To the knowledge of Shareholders, except as
disclosed in Schedule 3.1(v), no person or entity is producing, providing,
selling, or using products or services that would constitute an infringement of
any of the Intellectual Property.
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(w) INVENTORIES. The Inventories are in good and merchantable
condition and are stated at not more than the lower of cost or market, with
adequate adjustments for obsolete or obsolescent items. Since the date of
Company's Base Balance Sheet, there have not been and there are not required to
be any write-downs in the value of the Company's Inventories or write-offs with
respect to such Inventories. The raw materials, work in progress, and finished
goods inventory of Company are all in good condition and are usable and
currently being used in the present production and sales activities of Company,
and Company does not have on hand or on order any raw materials, work in
progress, or finished goods inventory materially in excess of its normal
requirements (based upon sales experience for the last 12 months) for products
that are included in its current line and for which Company is now taking
orders. Without limiting the foregoing, (i) Company does not have more than a
normal supply of raw materials, work in progress or finished goods inventory,
and (ii) all work in progress and finished goods inventory are in accordance
with past practices.
(x) CONSENTS AND APPROVALS. Shareholders have obtained all necessary
consents and approvals of other persons to the performance by Shareholders of
the transactions contemplated by this Agreement, including any required consents
or approvals from S.r.1. Framesi ("Framesi Italy") and Xxxxxxx Xxxxxxxxx
("Xxxxxxxxx"). Company does not need any such consents.
(y) AGREEMENT NOT IN BREACH OF OTHER INSTRUMENTS AFFECTING COMPANY.
The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of the terms hereof, will
not violate any provision of the articles of incorporation or bylaws of Company,
nor will they result in the breach of any term or provision of, or result in the
termination or modification of, or constitute a default under, or permit any
party to modify or terminate, any loan agreement, note, debenture, indenture,
mortgage, deed of trust, lease, contract, agreement, or other material
obligation of any description (including any contracts, agreements, and other
arrangements with S.r.1. Framesi, an Italian company, or Xxxxxxx Xxxxxxxxx) to
which Company is a party or by which it is bound, or any judgment, decree,
order, or award of any court, government body, or arbitration, or any applicable
law, rule, or regulation.
(z) ACCURACY OF STATEMENTS. Neither this Agreement nor Shareholders'
Disclosure Schedule contains or will contain an untrue statement of a material
fact or omits or will omit to state a material fact necessary to make the
statements contained herein or therein, in light of circumstances in which they
are made, not misleading.
3.2 REPRESENTATIONS AND WARRANTIES OF BUYER. Except as otherwise set forth
in the Buyer Disclosure Schedule heretofore delivered by Buyer to Shareholders,
and except as disclosed in any document previously filed with the Securities and
Exchange Commission ("SEC"), Buyer represents and warrants to Shareholders as
follows:
(a) DUE INCORPORATION, GOOD STANDING, AND QUALIFICATION. Each of Buyer
and its subsidiaries is a corporation duly organized, validly existing, and in
good standing under the laws of its jurisdiction of incorporation with all
requisite corporate power and authority to own, operate, and lease its assets
and properties and to carry on its business as now being conducted. Neither
Buyer nor any of its subsidiaries is subject to any material disability by
reason of the failure to be duly qualified as a foreign corporation for the
transaction of business or to be in good standing under the laws of any
jurisdiction. As used in this Agreement with reference to Buyer, the term
"subsidiaries" shall include all direct or indirect subsidiaries of Buyer other
than Company.
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(b) CORPORATE AUTHORITY. Buyer has the corporate power and authority
to enter into this Agreement and carry out the transactions contemplated hereby.
This Agreement has been duly executed and delivered by and constitutes a legal,
valid, and binding agreement of Buyer, enforceable against it in accordance with
its terms, except that (i) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium, or other similar laws now or hereafter
in effect relating to creditors' rights, and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefore may be brought.
(c) SUBSIDIARIES. The outstanding shares of capital stock of the
subsidiaries of Buyer owned by Buyer or any of its subsidiaries are owned free
and clear of all claims, liens, charges, and encumbrances. Buyer does not own,
directly or indirectly, any capital stock or other equity securities of any
corporation or have any direct or indirect equity or ownership interest in any
corporation or other business, other than with respect to its subsidiaries.
(d) FINANCIAL STATEMENTS. The Consolidated Balance Sheet of Buyer and
its subsidiaries as of December 31, 1997, as well as the Consolidated Statements
of Income, the Consolidated Statements of Stockholders' Equity, and the
Consolidated Statements of Cash Flows of Buyer and its subsidiaries for the
period ended December 31, 1997, and all related schedules and notes to the
foregoing, have been reported on by Xxxxxx Xxxxxxxx LLP, independent public
accountants. All of the foregoing financial statements have been prepared in
accordance with generally accepted accounting principles which were applied on a
consistent basis (except as described therein), and present fairly, in all
material respects the financial position, results of operations, and changes of
financial position of Buyer and its subsidiaries as of their respective dates
and for the periods indicated. Neither Buyer nor any of its subsidiaries has any
material liabilities or obligations of a type that would be included in a
balance sheet prepared in accordance with generally accepted accounting
principles, except as and to the extent disclosed or reflected in the
Consolidated Balance Sheet of Buyer and its subsidiaries as of March 31, 1998
("Buyer's Base Balance Sheet"), or incurred since March 31, 1998 in the ordinary
course of business.
(e) NO MATERIAL CHANGE. Since the date of Buyer's Base Balance Sheet,
there has not been and there is not threatened (i) any material adverse change
in the financial condition, business, properties, assets, or operating results
of Buyer and its subsidiaries taken as a whole, or (ii) any loss or damage
(whether or not covered by insurance) to any of the assets or properties of
Buyer or its subsidiaries, which materially affects or impairs their ability to
conduct their business
(f) NO VIOLATION. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not violate or result
in a breach by Buyer or any of its subsidiaries of, or constitute a default
under, or conflict with, or cause any acceleration of any obligation with
respect to, (i) any provision or restriction of any charter, bylaw, loan,
indenture, or mortgage of Buyer or any of its subsidiaries, or (ii) any
provision or restriction of any lien, lease agreement, contract, instrument,
order, judgment, award, decree, ordinance, or regulation or any other
restriction of any kind or character to which any assets or properties of Buyer
or any of its subsidiaries is subject or by which Buyer or any of its
subsidiaries is bound.
(g) SEC REPORTS. Buyer's Form 10-K Report for the year ended December
31, 1997, and all subsequent reports and proxy statements filed by Buyer
thereafter with the SEC pursuant to Section 13(a) or 14(a) of the Securities
Exchange Act of 1934, do not contain a misstatement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
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statements therein not misleading as of the time the document was filed. No
report, proxy statement, or other document has been required to be filed by
Buyer pursuant to Section 13(a) or 14(a) of the Securities Exchange Act of 1934
that has not been filed.
(h) ACCURACY OF STATEMENTS. Neither this Agreement nor the Buyer
Disclosure Schedule contains or will contain an untrue statement of a material
fact or omits to state a material fact necessary to make the statements
contained herein or therein, in light of the circumstances in which they are
made, not misleading.
(i) NO VIEW TO DISTRIBUTION. Buyer is not purchasing the Stock or the
Partnership Interests with a view to distribution.
3.3 FURTHER REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS. Each
Shareholder represents, warrants, and acknowledges individually for such
Shareholder to Buyer as follows:
(a) OWNERSHIP OF CAPITAL STOCK OF COMPANY. Such Shareholder owns the
number of shares of Common Stock of Company set forth next to such Shareholder's
signature to this Agreement and their respective Partnership Interests. Such
Shareholder has good, marketable, and unencumbered title to such stock and their
respective Partnership Interests, and there are no restrictions on such
Shareholder's right to transfer such stock or their respective Partnership
Interests to Buyer pursuant to this Agreement.
(b) RIGHTS TO ACQUIRE SHARES. Such Shareholder does not have any
outstanding options, warrants, or other rights to purchase or subscribe to, or
contracts or commitments to sell, or any interests, instruments, evidences of
indebtedness, or other securities convertible in any manner into, shares of
Company's capital stock.
(c) POWER OF SHAREHOLDERS TO EXECUTE AGREEMENT. Such Shareholder has
the full power and authority to execute, deliver, and perform this Agreement,
and this Agreement is the legal and binding obligation of such Shareholder and
is enforceable against such Shareholder in accordance with its terms, except
that (i) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in effect
relating to creditors' rights, and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefore may be brought.
(d) AGREEMENT NOT IN BREACH OF OTHER INSTRUMENTS AFFECTING
SHAREHOLDERS. 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 such
Shareholder is a party or by which such Shareholder is bound, or any judgment,
decree, order, or award of any court, governmental body, or arbitrator, or any
applicable law, rule, or regulation.
(e) PARTICIPATION IN BUSINESS OF COMPANY. Such Shareholder is actively
involved in the business of Company; is familiar with its business, affairs, and
financial condition; and serves as an officer, director, or both of Company.
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SECTION 4
THE CLOSING
4.1 CLOSING. The closing (the "Closing") of the transactions contemplated
by this Agreement is taking place at the offices of Xxxxxxxxxxx & Xxxxxxxx LLP,
0000 Xxxxxx Xxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx on August 3, 1998 at 11:00 a.m.,
Pittsburgh time, which date is referred to herein as the "Closing Date."
4.2 DELIVERIES BY SHAREHOLDERS. At the Closing, Shareholders shall deliver:
(a) STOCK CERTIFICATES. Certificates for 157,880 shares of Company's
Common Stock endorsed in blank, or with stock powers executed in blank attached.
(b) RESIGNATION OF OFFICERS AND DIRECTORS. Their written resignations
as directors and officers of Company and Subsidiary.
(c) GENERAL RELEASES. General releases to Company and Subsidiary by
each Shareholder in the form of Schedule 4.2(c).
(d) XXXX OF SALE AND ASSIGNMENT. Bills of Sale and Assignment executed
by Shareholders to sell, assign, and set over to Buyer all of their respective
rights, title, and interests as a partner in Ft. Pitt Partners I, a Pennsylvania
general partnership.
(e) OPINION OF COUNSEL OF COMPANY AND SHAREHOLDERS. The opinion of
Xxxxxxxxxxx & Xxxxxxxx LLP covering the matters specified in Schedule 4.2(e).
All assignments, consents, certificates, and other documents delivered
by Shareholders shall be in form reasonably satisfactory to counsel for Buyer.
4.3 DELIVERIES BY BUYER. At the Closing, Buyer shall deliver:
(a) PURCHASE PRICE. Payment of the purchase price payable at the
Closing as provided for in Section 2 in immediately available funds by cashier's
check or wire transfer.
(b) CONSENTS AND APPROVALS. Written evidence of all required consents
and approvals of the transactions contemplated hereby.
(c) OPINION OF COUNSEL OF BUYER The opinion of counsel for Buyer
covering the matters specified in Schedule 4.3(c).
(d) SPECIAL INDEMNITY. The Special Indemnity of Buyer to Shareholders
in the form of Schedule 4.3(d).
(e) RELEASE. A release of Shareholders in the form of Schedule 4.3(e).
All certificates and other documents delivered by Buyer shall be in
form reasonably satisfactory to counsel for Shareholders.
4.4 DIRECTORS AND OFFICERS. At the Closing, representatives of Buyer shall
be elected as directors and officers of Company.
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4.5 FURTHER ASSURANCES. Shareholders and Buyer shall execute and deliver
all such other instruments and take all such other action as any party may
reasonably request from time to time, after the Closing, in order to effectuate
the transactions provided for herein. The parties shall cooperate with each
other and with their respective counsel and accountants in connection with any
steps to be taken as a part of their respective obligations under this
Agreement, including the preparation of financial statements. Shareholders agree
to cooperate fully with Buyer and Xxxxxx Xxxxxxxx LLP, including making any
standard representations and signing any standard audit representations letters
and agree to use their best efforts to cause Deloitte & Touche LLP to cooperate
fully with Buyer and Xxxxxx Xxxxxxxx LLP, in order to complete any audit that
may be required under applicable rules and regulations of the Securities and
Exchange Commission, as determined by Xxxxxx Xxxxxxxx LLP.
SECTION 5
NON-COMPETITION
5.1 NON-COMPETITION. Because of the importance of Shareholders to the
development and operation of the business of Company, as well as their knowledge
of and reputation in Company's industry, Buyer is unwilling to enter into and
perform this Agreement unless Shareholders all enter into the non-competition
agreement contained in this Section 5. To induce Buyer to enter into this
Agreement and for the benefit of Buyer, each Shareholder agrees as follows:
5.2 DURATION AND EXTENT OF RESTRICTION. Such Shareholder shall not, for a
period ending five years after the Closing Date, within the United States or
foreign countries, engage in a business (a) the same as, substantially similar
to, or in general competition with the business being currently conducted by
Company, at or within 12 months prior to the Closing Date or (b) pursue a
"roll-up" or "consolidation" business strategy involving salon products. The
term "engage in" shall include, but shall not be limited to, activities, whether
direct or indirect, as proprietor, partner, shareholder, principal, agent,
employee, consultant or lender; provided, however, that the ownership of not
more than 5% in the aggregate by such Shareholder of the stock of a publicly
held corporation shall not be included in such term.
5.3 RESTRICTIONS WITH RESPECT TO CUSTOMERS. In furtherance of, and without
in any way limiting the restriction in Section 5.1, for the period specified in
Section 5.2, no Shareholder shall, directly or indirectly,
(a) request any past, present, or future customers of Company to
curtail or cancel their business with Buyer or any of its subsidiaries;
(b) disclose the identity of any past, present, or future customers of
Company, Buyer, or any subsidiary of Buyer to any other person, firm or
corporation engaged in a business the same as, substantially similar to, or in
general competition with the business being conducted by Company, as defined in
the recitals of this Agreement;
(c) solicit, canvas, or accept, or authorize any other person to
solicit, canvas, or accept, from any past, present, or future customers of
Company, Buyer or any subsidiary of Buyer, any business for any other person,
firm, or corporation engaged in a business the same as, substantially similar
to, or in general competition with the business being conducted by Company, as
defined in the recitals of this Agreement; or
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(d) induce or attempt to influence any employee of Company to
terminate his or her employment with Company, Buyer, or any subsidiary of Buyer.
As used in this Section 5.3 "future customer" shall mean a customer
with whom business will have been transacted between the date hereof and the end
of the term specified in Section 5.2.
5.4 REMEDIES FOR BREACH. Each Shareholder acknowledges that the
restrictions contained in this Section 5, in view of the nature of the business
in which Company is engaged, are reasonable and necessary to protect the
legitimate interests of Buyer and that any violation of these restrictions would
result in irreparable injury to Buyer. Each Shareholder agrees that, in the
event of a violation of any of such restrictions, Buyer shall be entitled to
preliminary and permanent injunctive relief as well as an equitable accounting
of all earnings, profits, and other benefits arising from such violation, which
rights shall be cumulative and in addition to any other rights or remedies to
which Buyer may be entitled. In the event of a violation by any Shareholder (a
"Defaulting Shareholder"), such a violation in and of itself shall not
constitute a violation by any other Shareholder and Buyer may only exercise its
remedies for such a violation against a Defaulting Shareholder. In the event of
a violation by a Defaulting Shareholder, the period of non-competition referred
to in Section 5.2 for such Defaulting Shareholder shall be extended by a period
of time equal to that period beginning when such violation commenced and ending
when the activities constituting such violation shall have been finally
terminated.
SECTION 6
INDEMNIFICATION
6.1 INDEMNIFICATION BY SHAREHOLDERS. Shareholders, jointly and severally,
covenant and agree to defend, indemnify, and hold Buyer harmless for, from, and
against any and all damages, losses, liabilities (absolute and contingent),
fines, penalties, costs, and expenses (including, without limitation, reasonable
counsel fees and costs and expenses incurred in the investigation, defense, or
settlement of any claim covered by this indemnity) resulting from any demand,
claim, proceeding, action, or cause of action that Buyer may suffer or incur by
reason of (a) the material inaccuracy of any of the representations or
warranties of any Shareholder contained in this Agreement (except the
representations and warranties contained in Section 3.3, for which only the
breaching Shareholder(s) shall be obligated); or (b) the failure to comply with,
or the breach, or the default by any Shareholder of any of the covenants,
warranties, or agreements made by any Shareholder contained in this Agreement.
6.2 INDEMNIFICATION BY BUYER. Buyer covenants and agrees to defend,
indemnify, and hold Shareholders harmless for, from, and against any and all
damages, losses, liabilities (absolute and contingent), fines, penalties, costs,
and expenses (including, without limitation, reasonable counsel fees and costs
and expenses incurred in the investigation, defense or settlement of any claim
covered by this indemnity) resulting from any demand, claim, proceeding, action,
or cause of action that any Shareholder may suffer or incur by reason of (a) the
material inaccuracy of any of the representations or warranties of Buyer
contained in this Agreement; or (b) the failure to comply with, the breach or
the default by Buyer of any of the covenants, warranties, or agreements made by
Buyer in this Agreement.
6.3 NOTICE AND RIGHT TO DEFEND THIRD-PARTY CLAIMS. Promptly upon receipt of
notice of any claim, demand, or assessment or the commencement of any suit,
action, or proceeding with respect to which indemnity may be sought pursuant to
this Agreement, the party seeking to be indemnified or held harmless (the
"Indemnitee") shall notify in writing, if possible, within sufficient time to
respond to such claim or answer or otherwise plead in such action (but in any
event within ten days, the party from
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whom indemnification is sought (the "Indemnitor"). In case any claim, demand, or
assessment shall be asserted, or suit, action, or proceeding commenced against
the Indemnitee, the Indemnitor shall be entitled, at the Indemnitor's expense,
to participate therein, and, to the extent that it may wish, to assume the
defense, conduct, or settlement thereof, at its own expense, with counsel
reasonably satisfactory to the Indemnitee, whose consent to the selection of
counsel shall not be unreasonably withheld or delayed, provided that the
Indemnitor confirms to the Indemnitee that it is a claim to which its rights of
indemnification apply. The Indemnitor shall have the right to settle or
compromise monetary claims without the consent of Indemnitee; however, as to any
other claim, the Indemnitor shall first obtain the prior written consent from
the Indemnitee, which consent shall be exercised in the sole discretion of the
Indemnitee. After notice from the Indemnitor to the Indemnitee of Indemnitor's
intent so to assume the defense, conduct, settlement, or compromise of such
action, the Indemnitor shall not be liable to the Indemnitee for any legal or
other expenses (including, without limitation, settlement costs) subsequently
incurred by the Indemnitee in connection with the defense, conduct, or
settlement of such action while the Indemnitor is diligently defending,
conducting, settling, or compromising such action. The Indemnitor shall keep the
Indemnitee apprised of the status of the suit, action, or proceeding and shall
make Indemnitor's counsel available to the Indemnitee, at the Indemnitor's
expense, upon the request of the Indemnitee. The Indemnitee shall cooperate with
the Indemnitor in connection with any such claim and shall make personnel, books
and records and other information relevant to the claim available to the
Indemnitor to the extent that such personnel, books and records and other
information are in the possession and/or control of the Indemnitee. If the
Indemnitor decides not to participate, the Indemnitee shall be entitled, at the
Indemnitor's sole cost and expense, to defend, conduct, settle or compromise
such matter with counsel satisfactory to the Indemnitor, whose consent to the
selection of counsel shall not be unreasonably withheld or delayed.
6.4 LIMITATIONS RELATED TO INDEMNITY. Notwithstanding anything to the
contrary herein:
(a) Each Shareholder shall be individually responsible for
indemnification arising out of any breach of a representation and warranty made
pursuant to Section 3.3 as to such Shareholder and the other Shareholders shall
not be jointly or severally liable for such indemnification obligations;
(b) Except as set forth in Section 6.4(a) above, each Shareholder's
responsibility for any indemnification under this Section 6 shall be limited to
the result obtained by multiplying the total indemnity by the proportionate
ownership interest each Shareholder had in the Stock, as set forth beside their
respective signatures to this Agreement;
(c) Shareholders shall have no obligation to indemnify any loss by
Buyer under this Agreement, unless, and only to the extent that all such losses
in the aggregate exceed $700,000;
(d) Buyer shall have no obligation to indemnify any loss by
Shareholders under this Agreement, unless, and only to the extent that all such
losses in the aggregate exceed $700,000 (except that this Section 6.4(d) shall
not apply in the event of Buyer's failure to pay the deferred portion of the
Purchase Price in accordance with Section 2.1);
(e) In no event shall the aggregate liabilities of the Shareholders
under this Agreement exceed $12,500,000;
(f) In no event shall the aggregate liabilities of Buyer under this
Agreement exceed $12,500,000; and
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(g) Except as provided in Section 6.5 hereof, the obligations of the
Shareholders under this Section 6 shall expire on the date that their
representations and warranties shall expire, which shall be the first
anniversary of the Closing Date (the "Indemnification Period").
6.5 REMEDY FOR CORE BREACH. Notwithstanding the provisions of Sections 6.1,
6.3, and 6.4 hereof, (a) in the event that Buyer alleges a breach by
Shareholders of the representations in the last sentence of Section 3.1(q)
hereof as it relates to the Xxxxxxxxx Agreements or a breach by Shareholders of
the representations in Section 3.1(x) with respect to consents of Framesi Italy
or Xxxxxxxxx (as defined therein) (each a "Core Breach") and that as a result of
such alleged Core Breach, Buyer has sustained damages in excess of $500,000,
Buyer's sole and exclusive remedy under this Agreement shall be to notify
Shareholders of the existence of such alleged Core Breach within 30 days of the
Closing Date (the "Core Breach Notice"), which Core Breach Notice shall set
forth in detail the nature of the alleged Core Breach, the nature of the
investigation conducted by Buyer with respect to the Core Breach, and the basis
for Buyer's conclusion that a Core Breach has occurred. Shareholders shall have
a period of 30 days from actual receipt of the Core Breach Notice (the "Core
Breach Cure Period") in which to attempt to cure the alleged Core Breach
described therein, and, if such cure is effected within the Core Breach Cure
Period, the Core Breach Notice shall be deemed to be rescinded. If Shareholders
do not cure such alleged Core Breach during such Core Breach Cure Period, then
on the tenth day following the conclusion of the Core Breach Cure Period (the
"Rescission Implementation Period"), (a) Buyer shall immediately return the
Stock and Partnership Interests to Shareholders, free and clear of all liens and
encumbrances, and Buyer shall immediately cause Company and its assets to be
released from any agreements and security interests related to borrowed money
which the Company may become a party to during the period which Buyer holds the
Stock (excluding those agreements described in subparts (i), (ii), and (iii) of
the next sentence), and (b) Shareholders shall return the Purchase Price to
Buyer, whereupon this Agreement and the transactions contemplated hereby shall
be rescinded except for the provisions in the remainder of this Section 6.5. In
the case of such recission, Shareholders shall cause Company to repay to Buyer
within 90 days of the date of the last day of the Rescission Implementation
Period any loans from Buyer to Company the proceeds of which were used by
Company to repay (i) amounts owed by Company to the National Bank of Canada as
of the Closing Date, (ii) amounts owned by the Company under the Fuhrer Notes
and Fuhrer Royalty Agreement (as such terms are defined in the Disclosure
Schedules), and (iii) amounts (up to $500,000) loaned by Buyer to Company as
reasonably required to satisfy Company's short-term working capital needs. In
the event that after such rescission is completed it is determined by a court of
competent jurisdiction that Shareholders were not in breach of the
representations and warranties described in the Core Breach Notice, Buyer shall
(i) reimburse Shareholders for all fees and expenses incurred by Shareholders in
responding to the alleged Core Breach, including legal fees and expenses, and
(ii) shall pay to Shareholders the greater of (x) actual damages incurred by
Shareholders as a result of such rescission or (y) $1,000,000 (with such amount
in (y) being liquidated minimum damages and an amount agreed to among Buyer and
Shareholders as a reasonable estimation of minimum damages suffered by
Shareholders in such a case).
SECTION 7
GENERAL
7.1 INDEMNITY AGAINST FINDERS. Each party hereto shall indemnify and hold
the other parties harmless against any claim for finders' fees based on alleged
retention of a finder by it.
7.2 CONTROLLING LAW. This Agreement, and all questions relating to its
validity, interpretation, performance, and enforcement, shall be governed by and
construed in accordance with the laws of Delaware, notwithstanding any Delaware
or other conflict-of- law provisions to the contrary.
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7.3 NOTICES. Except to the extent otherwise set forth herein, all notices,
requests, demands, and other communications required or permitted under this
Agreement shall be in writing and shall be deemed to have been duly given, made
and received when personally delivered or when deposited in the United States
mails, first class postage prepaid, return receipt requested, or when sent by
overnight express delivery with a signature required upon receipt, addressed as
set forth below:
If to Buyer: If to Shareholders:
Styling Technology Company Xxxxxx X. Xxxxxxxxx
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000 5324 Xxxxxxxxx Avenue
Phoenix, Arizona 85016 Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attention: Xxx Xxxxxxx
Xxxxx X. Xxxx
000 Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy, given in with a copy, given in
the manner prescribed above, to: the manner prescribed above, to:
X'Xxxxxx, Cavanagh, Anderson, Xxxxxxxxxxx & Xxxxxxxx LLP
Xxxxxxxxxxxxx & Xxxxxxxx, P.A. 1500 Xxxxxx Building
One East Camelback, Suite 1100 Pittsburgh, Pennsylvania 15222-2312
Xxxxxxx, Xxxxxxx 00000 Phone: (000) 000-0000
Phone: (000) 000-0000 Fax: (000) 000-0000
Fax: (000) 000-0000 Attention: Xxxxxxx X. Xxxxxx, Esq.
Attention: Xxxxxx X. Xxxx, Esq.
Any party may alter the address to which communications or
copies are to be sent by giving notice to such other parties of change of
address in conformity with the provisions of this paragraph for the giving of
notice.
7.4 BINDING NATURE OF AGREEMENT; NO ASSIGNMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that no party may assign, delegate, or transfer
its rights or obligations under this Agreement without the prior written consent
of the other parties hereto. Any assignment, delegation, or transfer made in
violation of this Section 6.4 shall be null and void.
7.5 ENTIRE AGREEMENT. This Agreement, the Schedules hereto, and the
Disclosure Schedules contain the entire understanding among the parties hereto
with respect to the subject matter hereof and supersede all prior and
contemporaneous agreements and understandings, inducements or conditions,
express or implied, oral or written, except as herein contained. The express
terms hereof control and supersede any course of performance and/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.
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7.6 PARAGRAPH HEADINGS. The paragraph headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect its
interpretation.
7.7 GENDER. Words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context requires.
7.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
7.9 TIME OF THE ESSENCE. TIME IS OF THE ESSENCE IN THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
STYLING TECHNOLOGY CORPORATION
By:________________________________
NUMBER OF SHARES SHAREHOLDERS:
___________________________________
1,623.5 Xxxxx X. Xxxx
Individually
77,316.5
Jointly with Xxxxx X. Xxxx
___________________________________
0 Xxxxx X. Xxxx
Individually
77,316.5
Jointly with Xxxxx X. Xxxx
___________________________________
78,940 Xxxxxx X. Xxxxxxxxx
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