EXHIBIT 10.24
EXECUTION COPY
ADVANCED AESTHETICS, INC.
SECURITYHOLDERS AGREEMENT
March 31, 2004
This
SECURITYHOLDERS
AGREEMENT (this "AGREEMENT"), dated March 31, 2004,
is entered into between Advanced
Aesthetics,
Inc., a Delaware
corporation (the
"COMPANY") and Technology Investment Capital Corp., a
Maryland corporation (the
"INVESTOR").
WHEREAS,
the Investor owns a
warrant ("WARRANT")
to purchase
shares of
common stock, par value $0.01 per share, of the
Company ("COMMON
STOCK"; the
shares of Common Stock into which the Warrant is exercisable, the "WARRANT
SHARES"; and the Warrant and the Warrant Shares, collectively, the
"SECURITIES"); and
WHEREAS,
the Company and the Investor desire to promote their mutual
interests by imposing certain limitations
on the transfer of the Securities.
NOW
THEREFORE, in
consideration of the foregoing recitals and the mutual
promises hereinafter set forth, the parties
hereto agree as follows:
1. Certain
Transfer Restrictions.
(a) The Investor may
only transfer any right, title or interest in any or
all of its Securities, in compliance with the terms of in accordance with
Section 1, Section 2 or Section 3 of this
Agreement.
(b) Any
purported transfer in
violation of this
Agreement shall be
void
and of no force and effect.
(c) Any
transferee of
Securities hereunder
shall execute and
deliver to
the Company an instrument, satisfactory to the Company, that evidences such
transferee's agreement to be bound by the
provisions hereof with the same rights
and obligations as the Investor; and the Investor shall cause each such
transferee to agree to the foregoing as a
condition to such transfer.
(d) The
Investor may not transfer any Securities if such transfer would
subject the Company to the reporting
requirements of the Securities Exchange Act
of 1934, as amended.
2. Certain Rights to Cause Sales of
Securities by the Investor.
(a) In the
event that stockholders of the Company, whether or not a party
to this Agreement, who collectively own a majority of the Common
Stock (the
"SELLING STOCKHOLDERS"), including, without limitation, the Common Stock
issuable upon exercise, exchange or conversion of all
outstanding
convertible
securities and options to purchase Common
Stock (together with the Common Stock,
"COMMON SHARE EQUIVALENTS") other than options
to purchase Common Stock granted
to the Company's directors, officers, employees and consultants,
determine to
participate in or otherwise effect a Sale
Transaction (as defined below),
<PAGE>
then the Selling Stockholders shall have the right (but not the
obligation) to
require the Investor to participate in the same transaction on the same terms
and conditions as the Selling Stockholders,
subject to the right
of the Selling
Stockholders in Section 2(b)(iii). The Selling Stockholders shall give the
Company and the Investor written notice of
such determination
not less than 10
days prior to the proposed date of the Sale Transaction (a "COMPANY SALE
NOTICE").
A "SALE
TRANSACTION"
means a merger or
consolidation of the Company with
or into another corporation or other entity
(whether or not the
Company is the
surviving corporation), a reclassification,
redemption, sale or
exchange of all
or any part of the Common Stock or other
capital stock of the Company owned by
the Selling Stockholders or a sale of all or
substantially all of the assets of
the Company but only if, immediately following any of the foregoing
transactions, a party or parties other than
the Selling Stockholders and persons
who were affiliates of the Selling Stockholders immediately prior to such
transaction own a majority of the business,
stock or assets (as
applicable) of
the Company or its successor.
(b) In any
Sale Transaction, the Investor:
(i) shall be required to transfer the same percentage of Securities
as the
percentage of Common Share Equivalents transferred by the Selling
Stockholders, such
percentage to be
determined by dividing the number of
Common
Share Equivalents being transferred by the Selling Stockholders by
the
aggregate number of Common Share
Equivalents
owned by such
Selling
Stockholders;
(ii) to the extent the
Investor is
transferring
shares of Common
Stock, it
shall receive the same
consideration per
share of Common Stock
as is
being received
upon such transfer per share of Common Stock
being
transferred by the Selling Stockholders;
(iii) may exercise the Warrant into the Warrant Shares prior to the
consummation thereof
or, to the extent it does not so convert such
Warrant,
it shall receive the same consideration per share of Common
Stock
as is
being received
upon such transfer per share of Common Stock
being
transferred by the
Selling Stockholders,
minus the aggregate exercise
price of
the Warrant Shares so sold as set forth in the Warrant;
(iv) shall
make appropriate and customary representations,
warranties
and covenants and indemnifications in such sale; provided, that
the
Investor shall not be
required to make
representations,
warranties,
covenants
and indemnifications more onerous than those made by the
Selling
Stockholders in such transaction.
(c) In any
Sale Transaction,
the Company and the
Investor shall take all
action in their power necessary to cause the consummation of such Sale
Transaction, including, without limitation, exercising, converting and
exchanging any securities that are
exchangeable for, or convertible into, Common
Stock and obtaining all consents and
approvals reasonably
necessary,
desirable
or appropriate for the Investor to
consummate the Sale Transaction. Accordingly,
the Investor:
(i) agrees
to vote, or to execute and deliver written consents in respect
of, all Securities owned in connection with the
approval of a Sale
Transaction
and all related
-2-
<PAGE>
matters; and
(ii)
affirms the Investor's agreement to vote for such Sale Transaction
is
given as a condition of this Agreement and as such is coupled with an
interest
and is irrevocable.
The
above voting agreement shall not terminate with respect to any
Securities owned by the Investor until the
earlier to occur of (x) such time as
such Securities are no longer owned by
the Investor and (y) the termination of
this Agreement.
(d) With
respect to all matters
that are the subject
of the above voting
agreement, the Investor hereby:
(i) irrevocably appoints the President and Secretary of the
Company,
and each
of them, with full
power of substitution and resubstitution,
together
with their
respective
heirs, successors and assigns, as the
Investor's
attorney-in-fact
to vote and give or
withhold consent with
respect to
all Securities held by
(or subject to a proxy in favor of) the
Investor
from time to time in such manner as either of them shall
determine
in his sole and
absolute discretion,
at any meeting
(whether
annual or
special and whether or not an adjourned meeting) of the Company
or by
written consent or otherwise, giving and granting to them all
powers
the
Investor would possess if personally present and hereby ratifying
and
confirming
all that they shall
lawfully do or cause
to be done by virtue
hereof;
and
(ii) affirms that the
irrevocable proxy
granted above is coupled
with an
interest and may not, under any circumstances, be revoked.
The
Investor hereby agrees to recognize the foregoing proxy holders as
the
sole attorney and proxy for the
Investor (with respect
to all matters that are
subject to such proxy). The proxy granted in this Section 2(d) shall not
terminate with respect to any Securities
owned by the Investor until the earlier
to occur of (x) such time as such
Securities are no longer owned by the Investor
and (y) the termination of this
Agreement.
(e) In the
event of a proposed Sale Transaction, the Investor shall in all
events be required to deliver each of the
Investor's Securities
in exchange for
the payment therefor and take such other
actions as are
required to effect the
closing of such Sale Transaction regardless of whether there is any dispute
between the Company and the Investor or between the Investor and any of the
other stockholders of the Company.
Any such dispute shall
be resolved after the
closing and shall in no event delay the
closing.
(f) At the
closing of any Sale
Transaction, the
Investor shall
deliver
certificates or other instruments
evidencing the Securities to be transferred in
valid form for transfer with appropriate
duly executed assignments, stock powers
or endorsements, as the case may be, bearing any
necessary documentary
stamps
and accompanied by such certificates of
authority, consents to transfer or other
instruments or evidences of the good title of
the Investor to such
Securities,
free and clear of all liens, claims and other
