<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 5, 1996
REGISTRATION NO. 333-12469
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
STYLING TECHNOLOGY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 2844 76-2665378
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
1146 SOUTH CEDAR RIDGE, DUNCANVILLE, TEXAS 75137
(214) 296-2887
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
SAM L. LEOPOLD, CHAIRMAN OF THE BOARD
1146 SOUTH CEDAR RIDGE, DUNCANVILLE, TEXAS 75137
(214) 296-2887
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C>
ROBERT S. KANT, ESQ. JEFFREY M. KNETSCH, ESQ.
MICHELLE S. MONSEREZ, ESQ. BRENT T. SLOSKY, ESQ.
MICHAEL L. KAPLAN, ESQ. BROWNSTEIN HYATT FARBER
O'CONNOR, CAVANAGH, ANDERSON, & STRICKLAND, P.C.
KILLINGSWORTH & BESHEARS, P.A. TWENTY-SECOND FLOOR
ONE EAST CAMELBACK ROAD 410 SEVENTEENTH STREET
PHOENIX, ARIZONA 85012-1656 DENVER, COLORADO 80202-4437
(602) 263-2400 (303) 534-6335
</TABLE>
------------------------
APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC: As soon as practicable
after the effective date of this Registration Statement.
If any of the securities being registered in this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================
TITLE OF EACH CLASS OF SECURITIES PROPOSED MAXIMUM
TO BE REGISTERED AGGREGATE OFFERING PRICE(1) AMOUNT OF REGISTRATION FEE
<S> <C> <C>
- ------------------------------------------------------------------------------------------------------------
Common Stock, par value $.0001(2)................ $38,640,000 $13,325
- ------------------------------------------------------------------------------------------------------------
Representatives' Warrants(3)..................... 1,960 1
- ------------------------------------------------------------------------------------------------------------
Common Stock(4).................................. 2,882,400 994
- ------------------------------------------------------------------------------------------------------------
Total....................................... $41,524,360 $14,320(5)
============================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
(2) Includes 420,000 shares of Common Stock subject to the Underwriters'
Overallotment Option.
(3) To be issued to the Representatives.
(4) Issuable upon exercise of Representatives' Warrants.
(5) $11,235 of this amount was previously paid.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
EXPLANATORY NOTE
Styling Technology Corporation has prepared this Amendment No. 2 for
the purpose of filing with the Securities and Exchange Commission Exhibit 10.12
to the Registration Statement. Amendment No. 2 does not modify any provision of
the Prospectus included in the Registration Statement; accordingly, such
Prospectus has not been included herein.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Certificate of Incorporation and Bylaws of the Registrant provide that
the Registrant will indemnify and advance expenses, to the fullest extent
permitted by the Delaware General Corporation Law, to each person who is or was
a director or officer of the Registrant, or who serves or served any other
enterprise or organization at the request of the Registrant (an "Indemnitee").
Under Delaware law, to the extent that an Indemnitee is successful on the
merits in defense of a suit or proceeding brought against him or her by reason
of the fact that he or she is or was a director, officer or agent of the
Registrant, or serves or served any other enterprise or organization at the
request of the Registrant, the Registrant shall indemnify him or her against
expenses (including attorneys' fees) actually and reasonably incurred in
connection with such action.
If unsuccessful in defense of a third-party civil suit or a criminal suit,
or if such a suit is settled, an Indemnitee may be indemnified under Delaware
law against both (i) expenses, including attorney's fees, and (ii) judgments,
fines and amounts paid in settlement if he or she acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to, the best
interests of the Company, and, with respect to any criminal action, had no
reasonable cause to believe his or her conduct was unlawful.
If unsuccessful in defense of a suit brought by or in the right of the
Registrant, where the suit is settled, an Indemnitee may be indemnified under
Delaware law only against expenses (including attorneys' fees) actually and
reasonably incurred in the defense or settlement of the suit if he or she acted
in good faith and in a manner he or she reasonably believed to be in, or not
opposed to, the best interests of the Registrant except that if the Indemnitee
is adjudged to be liable for negligence or misconduct in the performance of his
or her duty to the Registrant, he or she cannot be made whole even for expenses
unless a court determines that he or she is fully and reasonably entitled to
indemnification for such expenses.
Also under Delaware law, expenses incurred by an officer or director in
defending a civil or criminal action, suit or proceeding may be paid by the
Registrant in advance of the final disposition of the suit, action or proceeding
upon receipt of an undertaking by or on behalf of the officer or director to
repay such amount if it is ultimately determined that he or she is not entitled
to be indemnified by the Registrant. The Registrant may also advance expenses
incurred by other employees and agents of the Registrant upon such terms and
conditions, if any, that the Board of Directors of the Registrant deems
appropriate.
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses in connection with the offering
described in the Registration Statement.
<TABLE>
<S> <C>
SEC registration fee...................................................... $ 14,320
NASD filing fee........................................................... 4,653
Nasdaq fees............................................................... 23,646
Transfer agent and registrar fees......................................... 2,000
Accountants' fees and expenses............................................ 400,000
Legal fees and expenses................................................... 300,000
Printing and engraving expenses........................................... 100,000
Miscellaneous fees........................................................ 48,381
--------
Total........................................................... $893,000
========
</TABLE>
II-1
<PAGE> 4
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
No securities which were not registered under the Securities Act of 1933,
as amended, have been sold by the Registrant within the past three years except
for the following:
In June 1995, the Registrant issued 807,851 shares of Common Stock to
Messrs. Leopold and Bernstein, respectively, for an aggregate of $200 and
options to purchase 161,571 shares of Common Stock to each of Mr. Clifford for
$0.10 per share in connection with the incorporation of the Registrant. The
shares were issued in reliance upon an exemption from registration pursuant to
Section 4(2) of the Securities Act of 1933, as amended, as a transaction not
involving a public offering.
In September 1996, the Registrant sold to a single foreign investor a
promissory note in the principal amount of $400,000 that bears interest at the
rate of 10% per annum with a maturity date of January 31, 1997, subject to a
prepayment obligation upon the completion of the Offering. Upon the completion
of the Offering, the Company will issue (i) shares of Common Stock having a
market value of $200,000 based on the Offering Price, (ii) warrants to purchase
a like number of shares of Common Stock at an exercise price of equal to 125% of
the Offering Price, and (iii) options to purchase 5,000 shares of Common Stock
at an exercise price equal to the Offering Price to Mr. Schefler upon his
election as a director of the Company. The note was issued in reliance upon an
exemption from registration pursuant to Section 4(2) of the Securities Act of
1933, as amended, as a transaction not involving a public offering.
ITEM 27. EXHIBITS.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------ ------------------------------------------------------------------------------------
<C> <S>
1 Form of Underwriting Agreement+
3.1 Certificate of Incorporation of the Registrant+
3.2 Certificate of Amendment of Certificate of Incorporation+
3.3 Bylaws of the Registrant+
4.1 Specimen of Stock Certificate+
4.2 Specimen of Redeemable Common Stock Warrant+
5.1 Opinion of O'Connor, Cavanagh, Anderson, Killingsworth & Beshears, a professional
association+
10.1 Stock Purchase Agreement by and among Registrant and Donald N. Black, Howard Black,
Barbara Black, Robert Black, Don Cottam, Jim Cottam and the Cottam Family
Partnership, L.P. (Shareholders) with respect to Gena Laboratories, Inc.+
10.2 Stock Purchase Agreement by and among Registrant and Jack Sperling and Gary Sperling
(Shareholders) with respect to JDS Manufacturing Co., Inc.+
10.3 Asset Purchase Agreement by and among Registrant, Designs by Norvell, Inc. and Joy
Norvell Martin (Stockholder) with respect to the Body Drench division of Designs by
Norvell, Inc.+
10.4 Asset Purchase Agreement by and among Registrant, Kotchammer Investments, Inc. and
The Hammer Family Living Trust, The Jones Family Trust and Gerald Kotch
(Stockholders)+
10.5 Employment Agreement between Registrant and Sam L. Leopold+
10.6 Employment Agreement between Registrant and Thomas M. Clifford+
10.7 Employment Agreement between Registrant and David E. Ziegler+
10.8 Form of Employment Agreement between Registrant and Richard E. Norvell+
10.9 Form of Employment Agreement between Registrant and Gerald L. Kotch+
10.10 Employment Agreement between Registrant and Donald L. Black+
10.11 1996 Stock Option Plan+
10.12 Stock Repurchase Agreement, as amended, between Registrant and Kenneth S.
Bernstein++
</TABLE>
II-2
<PAGE> 5
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------ ------------------------------------------------------------------------------------
<S> <C>
10.13 Bridge Note+
11 Statement regarding computation of per share earnings+
23.1 Consent of Counsel (included in Exhibit 5.1)+
23.2 Consent of Arthur Andersen LLP+
23.3 Consent of Sylvan Schefler+
24.1 Power of Attorney of Directors and Executive Officers (included on the Signature
Page of the Registration Statement)+
27 Financial Data Schedule+
</TABLE>
- ---------------
+ Previously filed
++ Filed herewith
(b) Financial Statement Schedules
None
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes to provide to the underwriter
at the closing specified in the underwriting agreement, certificates in such
denominations and registered in such names as required by the underwriter to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1), or
(4), or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time the Commission declared it effective.
(2) For purposes of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this amendment to registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Phoenix,
State of Arizona, on November 5, 1996.
STYLING TECHNOLOGY CORPORATION
By: /s/ SAM L. LEOPOLD
------------------------------------
Chairman of the Board and
Chief Executive Officer
In accordance with the requirements of the Securities Act of 1933, this
amendment to registration statement was signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- --------------------------------- -------------------
<S> <C> <C>
/s/ SAM L. LEOPOLD Chairman of the Board and Chief November 5, 1996
- ------------------------------------- Executive Officer
Sam L. Leopold
* President and Director November 5, 1996
- -------------------------------------
Thomas M. Clifford
* Chief Financial Officer, November 5, 1996
- ------------------------------------- Treasurer, and Secretary
David E. Zeigler (Principal Financial and
Accounting Officer)
* Director November 5, 1996
- -------------------------------------
James A. Brooks
* Director November 5, 1996
- -------------------------------------
Daniel Howell
</TABLE>
*By: /s/ SAM L. LEOPOLD
-----------------------------------------------
Sam L. Leopold
(Attorney-in-fact)
II-4
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------ --------------------------------------------------------------------------
<S> <C>
1 Form of Underwriting Agreement+
3.1 Certificate of Incorporation of the Registrant+
3.2 Certificate of Amendment of Certificate of Incorporation+
3.3 Bylaws of the Registrant+
4.1 Specimen of Stock Certificate+
4.2 Specimen of Redeemable Common Stock Warrant+
5.1 Opinion of O'Connor, Cavanagh, Anderson, Killingsworth & Beshears, a
professional association+
10.1 Stock Purchase Agreement by and among Registrant and Donald N. Black,
Howard Black, Barbara Black, Robert Black, Don Cottam, Jim Cottam and the
Cottam Family Partnership, L.P. (Shareholders) with respect to Gena
Laboratories, Inc.+
10.2 Stock Purchase Agreement by and among Registrant and Jack Sperling and
Gary Sperling (Shareholders) with respect to JDS Manufacturing Co., Inc.+
10.3 Asset Purchase Agreement by and among Registrant, Designs by Norvell, Inc.
and Joy Norvell Martin (Stockholder) with respect to the Body Drench
division of Designs by Norvell, Inc.+
10.4 Asset Purchase Agreement by and among Registrant, Kotchammer Investments,
Inc. and The Hammer Family Living Trust, The Jones Family Trust and Gerald
Kotch (Stockholders)+
10.5 Employment Agreement between Registrant and Sam L. Leopold+
10.6 Employment Agreement between Registrant and Thomas M. Clifford+
10.7 Employment Agreement between Registrant and David E. Ziegler+
10.8 Form of Employment Agreement between Registrant and Richard E. Norvell+
10.9 Form of Employment Agreement between Registrant and Gerald L. Kotch+
10.10 Employment Agreement between Registrant and Donald L. Black+
10.11 1996 Stock Option Plan+
10.12 Stock Repurchase Agreement, as amended, between Registrant and Kenneth S.
Bernstein++
10.13 Bridge Note+
11 Statement regarding computation of per share earnings+
23.1 Consent of Counsel (included in Exhibit 5.1)+
23.2 Consent of Arthur Andersen LLP+
23.3 Consent of Sylvan Schefler++
24.1 Power of Attorney of Directors and Executive Officers (included on the
Signature Page of the Registration Statement)+
27 Financial Data Schedule+
</TABLE>
- ---------------
+ Previously filed
++ Filed herewith
<PAGE> 1
EXHIBIT 10.12
STOCK REPURCHASE AGREEMENT
STOCK REPURCHASE AGREEMENT made and entered into as of the 26th day of
October, 1996, by and between STYLING TECHNOLOGY CORPORATION, a Delaware
corporation (the "Company"), and KENNETH S. BERNSTEIN ("Bernstein").
RECITALS
A. Bernstein currently holds an aggregate of 807,851 shares (the
"Shares") of the Company's common stock, par value $.0001 per share (the "Common
Stock").
B. The Company is in the process of effecting an initial public
offering of its common stock (the "IPO") pursuant to a registration statement
filed with the Securities and Exchange Commission on September 20, 1996 (the
"Registration Statement").
C. The Company and Bernstein have determined that it would be in their
mutual best interests for Bernstein to sell the Shares to the Company and
terminate his involvement with the Company.
D. The Agreement shall take effect on the closing date of the IPO (the
"Effective Date").
E. To assure the consummation of the transactions contemplated hereby,
the parties are delivering this Agreement, the Promissory Note identified below,
and the Stock Certificates for the Shares pursuant to an Escrow Agreement with
an escrow agent (the "Escrow Agent") of even date.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. PURCHASE OF STOCK. On the Effective Date, the Company shall
purchase from Bernstein, and Bernstein shall sell to the Company, the Shares.
Contemporaneously with the execution and delivery of this Agreement, Bernstein
shall deliver to the Escrow Agent pursuant to the Escrow Agreement the stock
certificates representing the Shares, endorsed in blank or with stock powers
endorsed in blank attached.
2. PAYMENT OF PURCHASE PRICE. In consideration of the sale of
the Shares to the Company or its designee, the Company shall pay Bernstein the
purchase price (the "Purchase Price"), on the Effective Date as follows:
(a) PROMISSORY NOTE. Contemporaneously with the
execution of and of this Agreement, the Company has executed and delivered to
the Escrow Agent
<PAGE> 2
pursuant to the Escrow Agreement a promissory note in the original principal
amount of $4 million in the form set forth as Exhibit A hereto (the "Note").
(b) REIMBURSABLE EXPENSES. On the Effective Date, the
Company shall pay to Bernstein an amount equal to Bernstein's reasonable
out-of-pocket expenses (documented to the extent documentation is reasonably
available) incurred in connection with his services to the Company (the
"Reimbursable Expenses") by wire transfer or cashier's check in such manner as
Bernstein shall have notified the Company in writing not less than 48 hours
prior to the Effective Date. For purposes of this Section 2(b) any expenses
aggregating up to $50,000 shall be deemed to be reasonable. Bernstein hereby
acknowledges and agrees that, upon payment by the Company of the Reimbursable
Expenses in the manner prescribed by Bernstein, Bernstein shall have no further
claim or rights against the Company with respect to services rendered to the
Company.
3. TERMINATION OF AGREEMENT. This Agreement shall terminate,
and be null and void, on April 30, 1997 unless the Effective Date occurs prior
to such date. Upon such termination of this Agreement, the Escrow Agent will
return the Shares to Bernstein and the Note to the Company.
4. REPRESENTATIONS AND WARRANTIES OF BERNSTEIN. Bernstein
represents and warrants to the Company as follows:
(a) OWNERSHIP OF SHARES. Bernstein has good,
marketable and unencumbered title to the Shares, and there are no restrictions
on Bernstein's right to transfer the Shares pursuant to this Agreement.
(b) AGREEMENT NOT IN BREACH OF OTHER INSTRUMENTS. The
execution and delivery of this Agreement, the consummation of the transactions
hereby contemplated, and the fulfillment of the terms hereof will not result in
the breach of any term or provision of, or constitute a default under, or
conflict with, or cause the acceleration of any obligation under, any agreement
or other instrument of any description to which Bernstein is a party or by which
Bernstein is bound, or any judgment, decree, order or award of any court,
governmental body or arbitrator, or any law, rule, or regulation applicable to
Bernstein.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to Bernstein as follows:
(a) POWER TO EXECUTE AGREEMENT. The Company has the
corporate power and authority to execute, deliver, and perform this Agreement,
and this Agreement is the legal and binding obligation of the Company.
(b) AGREEMENT NOT IN BREACH OF OTHER INSTRUMENTS. The
execution and delivery of this Agreement, the consummation of the transactions
hereby contemplated, and the fulfillment of the terms hereof, will not result in
the breach of any term or provision of, or constitute a default under, or
conflict with, or cause the acceleration of any obligation under,
2
<PAGE> 3
any agreement or other instrument of any description to which the Company is a
party or by which the Company is bound, or any judgment, decree, order, or award
of any court, governmental body, or arbitrator, or any law, rule, or regulation
applicable to the Company.
6. CONTINUATION AND SURVIVAL OF REPRESENTATIONS AND
WARRANTIES. Each of the representations and warranties contained in this
Agreement shall survive the consummation of the transactions contemplated by
this Agreement.
7. RELEASE. Effective on the Effective Date, each of the
parties hereto hereby releases and forever discharges each other party hereto,
and such other party's respective shareholders, officers, directors, employees,
agents, representatives, family members, heirs, successors, and assigns, of and
from any and all obligations, defaults, acts, actions, causes of action, suits,
proceedings, disputes, rights, claims, and demands, at law or in equity (whether
real or contingent, known or unknown), that such party ever had or now has
relating to or arising from the actions or omissions of such other party or such
other party's respective shareholders, officers, directors, employees, agents,
representatives, family members, heirs, successors and assigns other than
arising through the commission of fraud by such other party; provided, however,
that nothing set forth in this Section 7 shall release any of the parties hereto
from any breach of the covenants, representations, or warranties set forth in
this Agreement or from the performance of any of the obligations set forth in
this Agreement or any documents or instrument delivered pursuant hereto.
8. INDEMNIFICATION. Effective on the Effective Date, the
Company indemnifies and holds harmless Bernstein against any losses, claims,
damages, or liabilities to which Bernstein may become, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereof) arise out of any
and all of his activities on behalf of the Company and except for any losses,
claims, damages or liabilities arising from his commission of fraud.
9. OTHER OBLIGATIONS OF THE PARTIES.
(a) NON-DISPARAGEMENT. No party hereto shall publicly
disparage any other party hereto or any of their respective shareholders,
directors, officers, employees, agents, representatives, family members, heirs,
successors, or assigns, or take any action that would reasonably be expected to
cause any adverse public relations or embarrassment to any of such persons or to
otherwise injure or impair the business prospects of any of such persons.
(b) COMMUNICATIONS. Bernstein shall refrain from
communications regarding the Company with any person, owner, director, officer,
employee, agent, or representative of any Acquired Business (as defined in the
Registration Statement) or any lender or potential lender to the Company, any
investment banking, brokerage or other financial institution, in each case
except with the specific written consent of the Company, and shall direct any
communications regarding the Company received by Bernstein from any Acquired
Business, lender, investment banking, brokerage or other financial institution
to Sam L. Leopold, Thomas M. Clifford or David Ziegler.
3
<PAGE> 4
(c) RETURN OF BOOKS AND RECORDS. Promptly following
execution of this Agreement, Bernstein shall deliver to the Company all
documents, records, reports, agreements, correspondence, plans, models, bank
statements, computer software or disks, or other information ("Information")
respecting the Company, the Acquired Businesses or the IPO. Bernstein may retain
copies of any Information. The Company will provide Bernstein with 15 copies of
the final prospectus relating to the IPO promptly upon their becoming available
and will provide him a "bound volume" of the IPO to the extent and at the same
time as they are provided to members of the IPO working group.
(d) TRANSITION OF INFORMATION. In view of Bernstein's
participation in negotiations, discussion, correspondences and other
communications with third parties respecting the acquisitions, financings and
other matters respecting the Company, Bernstein agrees to provide any and all
information (whether in writing or verbally) within his knowledge regarding such
matters as may be reasonably requested by Company's Chief Financial Officer,
legal counsel, accountants or investment bankers; provided, that following the
Effective Date, Bernstein may request and receive reasonable compensation for
providing such information.
10. FURTHER ASSURANCES. Each of the parties hereto shall
execute and deliver all other instruments and take all other actions that the
other party hereto may reasonably request from time to time to effectuate the
transactions provided for herein.
11. PROVISIONS SEVERABLE. The provisions of this Agreement are
independent of and severable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
Further, if a court of competent jurisdiction determines that any provision of
this Agreement is invalid or unenforceable as written, the court may interpret,
construe, rewrite or revise such provision, to the fullest extent allowed by
law, so as to make it valid and enforceable consistent with the intent of the
parties.
12. ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the
entire agreement and understanding between the parties hereto with respect to
the subject matter hereof and supersedes all prior and contemporaneous
agreements, understandings, inducements, and conditions, express or implied,
oral or written, of any nature whatsoever with respect to the subject matter
hereof. The express terms hereof control and supersede any course of performance
or usage of the trade inconsistent with any of the terms hereof. This Agreement
may not be modified or amended other than by an agreement in writing signed by
each of the parties hereto.
13. BINDING NATURE OF AGREEMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, personal representatives, successors, and assigns.
14. GOVERNING LAW. This Agreement shall be governed in
accordance with Delaware law, notwithstanding any Delaware or other
conflict-of-laws provision to the contrary.
4
<PAGE> 5
15. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
as against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories. Any photographic or facsimile copy of this Agreement, with
signatures reproduced on one or more sets of signature pages, shall be
considered for all purposes as if it were an executed counterpart of this
Agreement.
16. NOTICES. All notices required or permitted to be given
hereunder shall be in writing and shall be deemed made, given and delivered (i)
when delivered in person; (ii) if by facsimile transmission, 24 hours after
transmitter's confirmation of the receipt of such transmission; (iii) if by a
courier delivery service providing overnight or "next-day" delivery, on the next
business day after deposit with such service; or (iv) three days after being
deposited in the United States mail, postage prepaid, registered or certified
mail, in each case addressed as follows:
If to the Company:
Styling Technology Corporation
One East Camelback Road, Suite 1100
Phoenix, Arizona 85012
Attn: Sam L. Leopold
With a copy to:
O'Connor, Cavanagh, Anderson,
Killingsworth & Beshears
One East Camelback Road, Suite 1100
Phoenix, Arizona 85012
Attn: Robert S. Kant, Esq.
If to Bernstein:
5330 South Grape Lane
Greenwood Village, Colorado 80121
Telephone: (303) 741-5568
Telefax: (303) 741-5569
5
<PAGE> 6
with a copy to:
Rubner & Kutner, P.C.
Attention: Lee Kutner, Esq.
Telephone: (303) 832-2400
Telefax: (303) 832-1510
and/or to such other respective addresses and/or addressees as may be designated
by notice given in accordance with the provisions of this paragraph.
17. NON-WAIVER. The failure in any one or more instances of a
party to insist upon performance of any of the terms, covenants, or conditions
of this Agreement, to exercise any right or privilege in this Agreement
conferred, or the waiver by said party of any breach of any of the terms,
covenants, or conditions of this Agreement, shall not be construed as a
subsequent waiver of any such terms, covenants, conditions, rights, or
privileges, but the same shall continue and remain in full force and effect as
if no such forbearance or waiver had occurred. No waiver shall be effective
unless it is in writing and signed by an authorized representative of the
waiving party. A breach of any representation, warranty, or covenant shall not
be affected by the fact that a more general or more specific representation,
warranty, or covenant was not also breached.
18. ATTORNEYS' FEES. In the event of any claim, controversy,
or dispute arising out of or relating to this Agreement, or the breach hereof,
the prevailing party shall be entitled to recover court costs and attorneys'
fees set forth by the court and not the jury.
19. REMEDIES CUMULATIVE. The remedies of the parties hereto
under this Agreement are cumulative and shall not exclude any other remedies to
which any party may be lawfully entitled.
20. TITLES NOT TO AFFECT INTERPRETATION. The titles of
paragraphs and subparagraphs contained in this Agreement are for convenience
only, and they neither form a part of this Agreement nor are they to be used in
the construction or interpretation hereof.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first set forth above.
STYLING TECHNOLOGY CORPORATION, a
Delaware corporation
By:
-------------------------------
Sam L. Leopold
Its: Chief Executive Officer and
Chairman of the Board
----------------------------------
KENNETH S. BERNSTEIN
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<PAGE> 8
AMENDMENT TO STOCK REPURCHASE AGREEMENT
AMENDMENT TO STOCK PURCHASE AGREEMENT made and entered into on the 31st
day of October, 1996, by and between STYLING TECHNOLOGY CORPORATION, a Delaware
corporation (the "Company"), and KENNETH S. BERNSTEIN ("Bernstein").
RECITALS
A. The Company and Bernstein are parties to a Stock Repurchase
Agreement dated as of October 26, 1996 (the "Agreement").
B. The Company and Bernstein have determined that it is in their mutual
best interests to amend the Agreement as set forth herein.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein have the
meanings assigned them in the Agreement.
2. PAYMENT OF PURCHASE PRICE. Section 2 of the Agreement is
hereby amended in its entirety as follows:
In consideration of the sale of the Shares to the
Company, the Company shall pay Bernstein $1,800,000
by wire transfer pursuant to wire transfer
instructions specified by Bernstein in writing to the
Company no less than 48 hours prior to the Effective
Date. In addition, the Company shall reimburse
Bernstein for his out-of-pocket expenses (the
"Reimbursable Expenses") incurred in connection with
his services to the Company in the amount of $50,000
pursuant to the same wire instructions. Bernstein
agrees to provide such documentation relating to the
Reimbursable Expenses to the extent it is reasonably
available. Bernstein hereby acknowledges and agrees
that, upon payment by the Company of the Reimbursable
Expenses in the manner prescribed by Bernstein,
Bernstein shall have no further claim or rights
against the Company with respect to services rendered
to the Company.
3. PROMISSORY NOTE. All references in the Agreement to the
Note are hereby deleted, and the Note shall be returned to the Company and
cancelled on the Effective Date.
<PAGE> 9
4. ESCROW AGREEMENT. The Escrow Agreement is hereby amended
and replaced in its entirety by the form of Escrow Agreement attached hereto.
5. AGREEMENT REMAINS IN EFFECT. Except as specifically amended
hereby, the Agreement remains in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this amendment to the Agreement on the date first written above.
STYLING TECHNOLOGY CORPORATION, a Delaware
corporation
By:_____________________________________
Sam L. Leopold
Chief Executive Officer
________________________________________
Kenneth S. Bernstein
