AMENDED AND RESTATED SHARE TRANSFER AGREEMENT

 

 

                                                                   EXHIBIT 10.45

 

                              AMENDED AND RESTATED

 

                            SHARE TRANSFER AGREEMENT

 

                                December 20, 2005

 

                   This Amended and Restated   Share   Transfer   Agreement is among

TrueYou.com   Inc., a Delaware   corporation   (the "Company"),   FCPR L Capital,   a

fonds commun de placements a risque,   represented by L Capital Management SAS, a

societe par actions   simplifiee   ("L   Capital"),   and each of the persons (other

than L Capital) who own securities of the Company, executing a signature page to

this agreement (the "Existing Stockholders").

 

                  On November 25, 2003, L Capital   purchased a Convertible   Note

(as defined below) from Advanced Aesthetics, Inc. ("AAI") and on June 2, 2004, L

Capital purchased from AAI the Series D Shares (as defined below).   Concurrently

therewith,   AAI, L Capital and the   Existing   Stockholders   entered into a Share

Transfer   Agreement   (the "Original   Agreement")   pursuant to which the Existing

Stockholders and L Capital agreed on certain   contingent rights to the shares of

common stock of AAI owned by the Existing   Stockholders if L Capital achieves an

IRR of less than 25% with respect to its investment in the   Convertible   Note or

the   Series   D   Shares.   In   connection   therewith,   the   Existing   Stockholders

delivered   to the former   Escrow Agent a number of shares of common stock of AAI

pursuant to an Escrow Agreement among the parties hereto and an escrow agent.

 

                  The parties   hereto have entered or are entering   into a Share

Exchange Agreement, pursuant to which all security holders of AAI have agreed to

exchange their AAI securities for newly issued securities of the Company.

 

                  In   connection   with the   consummation   of the Share   Exchange

Agreement L Capital and the Existing   Stockholders wish to amend and restate the

Original Agreement so that it is applicable to the new shares of Common Stock of

the Company that are being issued to the Existing   Stockholders   in exchange for

their AAI securities.

 

                  The parties agree as follows:

 

1. Definitions.

 

         The following terms have the meanings indicated:

 

1.1   "AFFILIATE"   has the meaning   assigned to such term in Rule 12b-2 under the

Exchange Act; provided,   however, that, in the case of L Capital, any investment

fund managed by an Affiliate of L Capital   shall be deemed to be an Affiliate of

L Capital.

 

1.2 "ATTRIBUTABLE VALUE" means, as of a given date:

 

         (a) with respect to any cash, the amount of such cash;

 

         (b) with respect to any Marketable   Securities as of any date, the last

reported or quoted sales price of such Marketable Securities, or if no such sale

takes place on such day,

 

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the average of the closing bid and asked   prices,   as reported by the   principal

exchange or system with respect to which such   Marketable   Securities are listed

or admitted to trading; and

 

         (c) with   respect to the Common Stock in a Public   Offering,   the price

per   share at which   the   Common   Stock is sold to the   public   in such a Public

Offering.

 

1.3 "COMMON   EQUIVALENT   SECURITIES" means Common Stock,   warrants and all other

securities   of the   Company   that   may   now   or at any   time   in the   future   be

authorized,   issued   and   outstanding   and that   represent   any other   direct or

indirect rights to acquire, or constitute interests or participations in, Common

Stock   or   rights   to   acquire    securities   that   are   directly   or   indirectly

exercisable for, convertible into or exchangeable for Common Stock.

 

1.4 "COMMON SHARE   EQUIVALENTS"   means all shares of Common Stock and all shares

of Common Stock that are issuable upon   exercise,   exchange or conversion of all

Common Equivalent Securities.

 

1.5 "COMMON STOCK" means the Company's common stock, par value $.01 per share.

 

1.6       "COMPANY" means TrueYou.com Inc., a Delaware corporation.

 

1.7 "CONVERTIBLE NOTE" means the Subordinated Convertible Promissory Note, dated

November 25, 2003, issued by AAI in the principal amount of $13,300,000   payable

to the order of L Capital.

 

1.8 "DAILY TRADING PRICE" means the average of the high and low trading price of

the stock for such day, in each case as reported by Bloomberg Financial, L.P. or

other reputable source.

 

1.9 "DAILY   TRADING   VOLUME" means the trading volume of the stock for such day,

as reported by Bloomberg Financial, L.P. or other reputable source.

 

1.10 "DAILY TRADING VALUE" means the Daily Trading Price multiplied by the Daily

Trading Volume.

 

1.11 "ESCROW AGENT" is defined in the first sentence of the Escrow Agreement.

 

1.12 "ESCROW   AGREEMENT" means the Amended and Restated Escrow Agreement,   dated

as of the date   hereof,   among the parties   hereto and   Troutman   Sanders LLP as

escrow agent, as the same may be amended, modified or supplemented.

 

1.13 "ESCROW SHARES" means the Tranche I Escrow Shares and the Tranche II Escrow

Shares.

 

1.14 "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.

 

1.15   "EXISTING   STOCKHOLDER"   means each   Person,   other   than L   Capital,   who

executes a signature page to this Agreement.

 

1.16   "EXISTING    STOCKHOLDER   COMMON   SHARES"   means   the   Tranche   I   Existing

Stockholder Common Shares and the Tranche II Existing Stockholder Common Shares.

 

                                       -2-

 

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1.17   "EXISTING   STOCKHOLDER   DEMAND" is defined in Section 4.1(b) of the Escrow

Agreement.

 

1.18   "EXISTING   STOCKHOLDER   GROUP" means the Existing   Stockholders   and their

transferees.

 

1.19 "EXIT EVENT" means:

 

         (a) the liquidation or dissolution of the Company;

 

         (b) a Public Offering; or

 

         (c) any of the following:   (i) the sale, lease,   exchange,   transfer or

other disposition,   either directly or indirectly, of assets constituting all or

substantially   all of the assets of the Company and its subsidiaries   taken as a

whole,   to a Person or group of Persons not controlled by the Company;   (ii) any

merger,    consolidation   or   other   business   combination,    or   refinancing   or

recapitalization   of the Company   that   results in the holders of the issued and

outstanding   voting   securities   of   the   Company    immediately   prior   to   such

transaction   beneficially   owning or   controlling   less than a   majority   of the

voting   securities of the continuing or surviving entity   immediately   following

such transaction;   or (iii) any Person or Persons acting together or which would

constitute   a "group" for the   purposes of Section   13(d) of the   Exchange   Act,

together or with any Affiliates   thereof,   other than the   beneficial   owners of

Common   Stock   as   of   November   25,   2003,   and   their   respective   Affiliates,

beneficially   owning   (as   defined   in   Rule   13d-3   of   the   Exchange   Act)   or

controlling,   directly or indirectly,   at least 50% of the total voting power of

all classes of capital   stock   entitled   to vote   generally   in the   election of

directors of the Company.

 

1.20      "L   CAPITAL"   means L Capital   Management   SAS, a societe   par   actions

         simplifiee.

 

1.21 "LVMH" means Moet Hennessy Louis Vuitton S.A., a societe anonyme   organized

under the laws of the Republic of France.

 

1.22 "MARKETABLE   SECURITIES" means securities of a Person that are: (a) subject

to the   reporting   requirements   of Section 13 or 15(d) of the   Exchange Act and

listed on a national securities exchange or quoted on the Nasdaq National Market

System or the OTC Bulletin   Board;   or (b) quoted on the London Stock   Exchange,

the Tokyo Stock Exchange or Euronext.

 

1.23 "PERSON"   means an individual or a corporation,   partnership,   association,

trust, or any other entity or organization,   including a government or political

subdivision or an agency or instrumentality thereof.

 

1.24 "PROCEEDS"   means, with respect to any property,   all dividends,   earnings,

interest,   payments,   proceeds and other distributions made with respect to such

property.   The   Value of any   Proceeds   that   are   neither   cash nor   Marketable

Securities   shall   be   determined   in   good   faith   by the   Company's   Board   of

Directors.

 

1.25 "PUBLIC   OFFERING"   means an   underwritten   public offering of Common Stock

pursuant to a registration   statement on Form S-1, S-2 or S-3 (or a similar form

of general application prescribed by the SEC) filed under the Securities Act for

gross proceeds of not less than $25,000,000.

 

                                       -3-

 

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1.26 "PUBLIC TRANSACTION" means the closing of the transactions   contemplated by

the Share Exchange Agreement.

 

1.27 "SEC" means the United States Securities and Exchange Commission.

 

1.28 "SERIES D SHARES" means the 8,200 shares of Series D Preferred Stock of AAI

that L Capital purchased from AAI.

 

1.29 "SECURITIES ACT" means the Securities Act of 1933, as amended.

 

1.30 "SECURITYHOLDERS   AGREEMENT" means the Amended and Restated Securityholders

Agreement,   dated as of the date   hereof,   among L Capital and the   stockholders

signatory thereto, as the same may be amended, modified or supplemented.

 

1.31 "SHARE EXCHANGE AGREEMENT" means the Share Exchange Agreement,   dated as of

the date hereof, among AAI, the Company and the securityholders of AAI signatory

thereto.

 

1.32 "TRANCHE I ESCROW SHARES" means the Tranche I Existing   Stockholder   Common

Shares,   as adjusted   pursuant to Section   6(a) hereof,   and all   Proceeds   with

respect to such Tranche I Existing Stockholder Common Shares.

 

1.33   "TRANCHE I   EXISTING   STOCKHOLDER   COMMON   SHARES" is defined in Section 2

hereof.

 

1.34 "TRANCHE II ESCROW SHARES" means the Tranche II Existing Stockholder Common

Shares,   as adjusted   pursuant to Section   6(a) hereof,   and all   Proceeds   with

respect to such Tranche II Existing Stockholder Common Shares.

 

1.35   "TRANCHE II EXISTING   STOCKHOLDER   COMMON   SHARES" is defined in Section 2

hereof.

 

1.36 "TRANSFER" means any sale, assignment, gift, transfer,   conveyance or other

disposition, and any pledge or other encumbrance.

 

1.37   "VALUE"   means,   with   respect to the   occurrence   of an Exit Event or, if

applicable, as of any other date:

 

         (a) with respect to the Convertible Note, the sum of:

 

                  (i) the Attributable Value, as of the date of such Exit Event,

         of the   consideration   received   or to be received by L Capital for the

         Common Stock issued upon conversion of the Convertible Note (including,

         without limitation, all dividends on such Common Stock); and

 

                  (ii) all interest received or to be received in respect of the

         Convertible Note on or prior to (or in connection with) such Exit Event

         or such other date, as the case may be; and

 

         (b) with respect to the Series D Shares, the sum of:

 

                                       -4-

 

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                  (i) the Attributable Value, as of the date of such Exit Event,

         of the   consideration   received   or to be received by L Capital for the

         Common   Stock   issued   upon   the   conversion   of the   Series   D   Shares

         (including,   without   limitation,   all dividends on such Common Stock);

         and

 

                  (ii) all   dividends   received   or to be received in respect of

         the   Series D Shares on or prior to (or in   connection   with) such Exit

         Event or such other date, as the case may be; and

 

         (c) with respect to any Escrow Shares,   the Attributable   Value, as the

date of such Exit   Event,   of the   consideration   received   or to be   received L

Capital for such Escrow Shares.

 

         2. Deposit of Existing   Stockholder Common Shares.   Simultaneously with

the   execution   of this   agreement   and the   Share   Exchange   Agreement:   (a) in

connection   with L Capital's   purchase of the   Convertible   Note on November 25,

2003,   each Existing   Stockholder   is delivering to the Escrow Agent one or more

certificates   representing   the   number   of   shares   of   Common   Stock set forth

opposite   that   Existing   Stockholder's   name in column   (a) on   Schedule A (the

"Tranche I Existing   Stockholder   Common Shares"),   together with duly executed,

undated, blank stock transfer powers with respect thereto; and (b) in connection

with the   purchase   by L Capital of the   Series D Shares on June 2,   2004,   each

Existing   Stockholder is delivering to the Escrow Agent one or more certificates

representing   the   number   of shares of   Common   Stock set forth   opposite   such

Existing   Stockholder's   name in   column   (b) on   Schedule   A (the   "Tranche   II

Existing   Stockholder Escrow Shares").   From and after the date hereof and until

the expiration or termination of the obligations of the Existing Stockholders to

transfer Existing   Stockholder Common Shares hereunder,   no Existing Stockholder

shall   sell,   transfer,   assign   or   otherwise   dispose   of any of the   Existing

Stockholder Common Shares or Proceeds constituting the Escrow Shares in a manner

that would interfere with the rights of L Capital hereunder.

 

                  3. Right of L Capital to Receive   Accrued and Unpaid   Interest

         and Dividends.

 

         (a) If an Exit Event results   (prior to taking into   consideration   any

Tranche I Escrow   Shares   transferred   pursuant to Section   4.1(a)) in L Capital

achieving   an IRR of   less   than   25%   with   respect   to its   investment   in the

Convertible   Note, then any accrued and unpaid interest on the Convertible   Note

("L Capital Note Debt") will be paid by the Company to L Capital up to an amount

allowing L Capital to achieve   such 25% IRR.   Any L Capital   Note Debt less such

amount as may be   necessary to allow L Capital to achieve a 25% IRR with respect

to its investment in the L Capital Note will then be extinguished.

 

         (b) If an Exit Event results   (prior to taking into   consideration   any

Tranche II Escrow Shares   transferred   pursuant to Section   4.1(b)) in L Capital

achieving an IRR of less than 25% with respect to its investment in the Series D

Shares,   then any   accrued and unpaid   dividends   on the Series D Shares (the "L

Capital   Accrued   Dividends")   will be paid by the Company to L Capital up to an

amount   allowing   L Capital   to   achieve   such 25% IRR.   Any L   Capital   Accrued

Dividends   less such amount as may be   necessary to allow L Capital to achieve a

25% IRR with   respect   to its   investment   in the   Series D Shares   will then be

extinguished.

 

         4. Contingent Transfer of Escrow Shares.

 

                                       -5-

 

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         4.1       Right of L Capital to Receive Escrow Shares.

 

         (a) If an Exit Event results   (prior to taking into   consideration   any

Tranche I Escrow Shares transferred pursuant to the terms of this agreement, but

after taking into account any payment of L Capital Note Debt pursuant to Section

3(a))   in L   Capital   achieving   an IRR of less   than 25%   with   respect   to its

investment in the   Convertible   Note, then L Capital shall be entitled to direct

the Escrow Agent   within 10 Business   Days after the   consummation   of such Exit

Event to   transfer   and   deliver   to: (i) L Capital a number of Tranche I Escrow

Shares   having an aggregate   Value as of the date of such Exit Event that,   when

combined   with the   Value of the   Convertible   Note as of the date of such   Exit

Event,   would   provide   L   Capital   with an IRR of 25%;   and (ii)   the   Existing

Stockholders the remaining   Tranche I Escrow Shares, if any. In no event shall L

Capital be   entitled   to receive   any   Tranche II Escrow   Shares in respect of L

Capital's investment in the Convertible Note.

 

         (b) If an Exit Event results   (prior to taking into   consideration   any

Tranche II Escrow Shares   transferred   pursuant to the terms of this   agreement,

but after   taking   into   account   any   payment   of L Capital   Accrued   Dividends

pursuant to Section   3(b)) in L Capital   achieving   an IRR of less than 25% with

respect   to its   investment   in the   Series D Shares,   then L   Capital   shall be

entitled   to   direct   the   Escrow   Agent   within   10   Business   Days   after   the

consummation   of such Exit Event to   transfer   and   deliver   to: (i) L Capital a

number of Tranche II Escrow Shares   having an aggregate   Value as of the date of

such Exit Event that,   when combined with the Value of the Series D Shares as of

the date of such Exit Event,   would   provide L Capital   with an IRR of 25%;   and

(ii) the Existing   Stockholders the remaining   Tranche II Escrow Shares, if any.

In no event shall L Capital be   entitled to receive any Tranche I Escrow   Shares

in respect of L Capital's investment in the Series D Shares.

 

         (c) In no event shall L Capital be entitled to receive, or share in any

distributions   in respect of, or Proceeds from, any shares owned by the Existing

Stockholders other than the Escrow Shares.

 

         (d) At any time after t