<PAGE> 1
As filed with the Securities and Exchange Commission on December 22, 1998
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------------------
BEAUTICONTROL COSMETICS, INC.
(Exact name of registrant as specified in its charter)
Delaware 75-2036343
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
2121 Midway Road 75006
Carrollton, Texas (Zip Code)
(Address of Principal Executive Offices)
1998 SPECIAL STOCK OPTION PLAN
(Full title of the plan)
----------------------------------
RICHARD W. HEATH
President
BeautiControl Cosmetics, Inc.
2121 Midway Road
Carrollton, Texas 75006
(972) 458-0601
(Name, address and telephone number, including area code, of agent for service)
Copy to:
DAVID H. ODEN
Haynes and Boone, L.L.P.
3100 NationsBank Plaza
Dallas, Texas 75202
(214) 651-5000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
Proposed Proposed
Title of Securities Amount Maximum Offering Maximum Aggregate Amount of
To Be Registered To Be Registered Price per Share(1) Offering Price(1) Registration Fee(1)
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 59,000 $5 11/16 $335,563 $94
$.10 par value.............
=======================================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457(h)(1) solely for the purpose of calculating
the registration fee, based the average of the high and low price of the
Common Stock, as reported on the NASDAQ National Market, on December 18,
1998.
===============================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated herein by reference:
(a) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 since the end of the
fiscal year covered by the annual report referred to in (a)
above.
(c) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A as filed
with the Commission on April 21, 1986.
(d) All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective
amendment that indicates that all securities offered have been
sold or which deregisters all securities then remaining
unsold, from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is empowered by Section 145 of the Delaware General
Corporation Law, subject to the procedures and limitations stated therein, to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal or administrative by reason of the fact that the person is or
was an officer, employee, agent or director of the Registrant, or is or was
serving at the request of the Registrant as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, if the person acted in good
faith and in a manner the person reasonably believed to be in, or not opposed
to, the best interests of the Registrant, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe the person's conduct
was unlawful. The Registrant may indemnify any such person against expenses
(including attorneys' fees) in an action by or in right of the Registrant under
the same conditions, except that no indemnification is permitted without
judicial approval if such person is adjudged to be liable to the Registrant. To
the extent such person is successful on the merits or otherwise in the defense
of any action referred to above, the Registrant must indemnify the person
against the expenses that the person actually and reasonably incurred in
connection therewith.
The Registrant's Certificate of Incorporation provides that, to the
fullest extent permitted by the Delaware General Corporation Law, a director of
the Registrant shall not be liable to the Registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director.
- 2 -
<PAGE> 3
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Exhibit
3.1 Restated Certificate of Incorporation dated February
22, 1986 (incorporated here by reference to Exhibit
3.1 of the Registrant's registration statement on
Form S-8, No. 333-17479, filed with the Securities
and Exchange Commission on December 9, 1996 (the
"1996 S-8")).
3.2 Certificate of Amendment to Restated Certificate of
Incorporation dated April 7, 1987 (incorporated here
by reference to Exhibit 3.2 of the 1996 S-8).
3.3 Certificate of Amendment to Restated Certificate of
Incorporation dated April 3, 1992 (incorporated here
by reference to Exhibit 3.3 of the 1996 S-8).
3.4 By-laws of the Registrant as amended on March 21,
1991 (incorporated here by reference to Exhibit 3.4
of the 1996 S-8).
5.1 Opinion of Haynes and Boone.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Grant Thornton.
23.3 Consent of Haynes and Boone (included in Exhibit
5.1).
24.1 Power of Attorney of the directors (included on the
signature page of this registration statement).
99.1 BeautiControl Cosmetics, Inc. 1998 Special Stock
Option Plan.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this registration
statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement.
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<PAGE> 4
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment 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; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
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<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on December 17, 1998.
BEAUTICONTROL COSMETICS, INC.
By: /s/ RICHARD W. HEATH
----------------------------------
Richard W. Heath
President and Chief Executive Officer
KNOW ALL BY THESE PRESENTS, that each of the undersigned hereby
constitutes and appoints Richard W. Heath and M. Douglas Tucker, and each of
them (with full power to each of them to act alone), his or her true and lawful
attorneys-in-fact and agents, with full power of substitution, for him or her
and on his or her behalf and in his or her name, place and stead, in any and all
capacities, to sign, execute, and file with the Securities and Exchange
Commission and any state securities regulatory board or commission any documents
relating to the proposed issuance and registration of the securities offered
pursuant to this registration statement on Form S-8 under the Securities Act of
1933, including any amendment or amendments relating thereto, with all exhibits
and any and all documents required to be filed with respect thereto with any
regulatory authority, granting unto said attorneys, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises in order to effectuate the same
as fully to all intents and purposes as he or she might or could do if
personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, or their or his or her
substitute or substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ JINGER L. HEATH Chairman of the Board December 17, 1998
- ------------------------------------------------- and Director
Jinger L. Heath
/s/ RICHARD W. HEATH President, Chief Executive December 17, 1998
- ------------------------------------------------- Officer and Director
Richard W. Heath
/s/ J. ROBERT WARD-BURNS Executive Vice President, December 17, 1998
- ------------------------------------------------- Chief Operating Officer,
J. Robert Ward-Burns and Director
</TABLE>
- 5 -
<PAGE> 6
<TABLE>
<S> <C> <C>
/s/ M. DOUGLAS TUCKER Senior Vice President - Finance
- ------------------------------------------------- and Chief Financial Officer December 17, 1998
M. Douglas Tucker (Principal Financial
and Accounting Officer)
/s/ CHARLES M. DIKER Director December 17, 1998
- -------------------------------------------------
Charles M. Diker
/s/ ROBERT S. FOLSOM Director December 17, 1998
- -------------------------------------------------
Robert S. Folsom
/s/ JOSEPH M. HAGGAR, III Director December 17, 1998
- -------------------------------------------------
Joseph M. Haggar, III
/s/ DENISE ILITCH Director December 17, 1998
Denise Ilitch
/s/ A. STARKE TAYLOR, JR. Director December 17, 1998
- -------------------------------------------------
A. Starke Taylor, Jr.
/s/ JOEL T. WILLIAMS, JR. Director December 17, 1998
- -------------------------------------------------
Joel T. Williams, Jr.
</TABLE>
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<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Exhibit
- ------- -------
<S> <C>
3.1 Restated Certificate of Incorporation dated February 22, 1986
(incorporated here by reference to Exhibit 3.1 of the Registrant's
registration statement on Form S-8, No. 333-17479, filed with the
Securities and Exchange Commission on December 9, 1996).
3.2 Certificate of Amendment to Restated Certificate of Incorporation
dated April 7, 1987 (incorporated here by reference to Exhibit 3.1
of the Registrant's registration statement on Form S-8, No.
333-17479, filed with the Securities and Exchange Commission on
December 9, 1996).
3.3 Certificate of Amendment to Restated Certificate of Incorporation
dated April 3, 1992 (incorporated here by reference to Exhibit 3.1
of the Registrant's registration statement on Form S-8, No.
333-17479, filed with the Securities and Exchange Commission on
December 9, 1996).
3.4 By-laws of the Registrant as amended on March 21, 1991
(incorporated here by reference to Exhibit 3.1 of the Registrant's
registration statement on Form S-8, No. 333-17479, filed with the
Securities and Exchange Commission on December 9, 1996).
5.1 Opinion of Haynes and Boone.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Grant Thornton.
23.3 Consent of Haynes and Boone (included in Exhibit 5.1).
24.1 Power of Attorney of the directors (included on the signature page
of this registration statement).
99.1 BeautiControl Cosmetics, Inc. 1998 Special Stock Option Plan.
</TABLE>
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<PAGE> 1
EXHIBIT 5.1
December 21, 1998
BeautiControl Cosmetics, Inc.
2121 Midway Road
Carrollton, TX 75006
Re: Registration Statement on Form S-8 of 59,000 shares of Common
Stock of BeautiControl Cosmetics, Inc.
Gentlemen:
We have acted as counsel to BeautiControl Cosmetics, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended. The Registration Statement relates to the registration of 59,000 shares
of Common Stock, par value $.10 per share (the "Common Stock") of the Company.
We have examined such documents, records and matters of law as we have deemed
necessary for the purposes of this opinion. Based upon the foregoing, and having
due regard for such legal considerations as we deem relevant, we are of the
opinion that the 59,000 shares of Common Stock to be registered pursuant to the
Registration Statement have been duly authorized and are validly issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to this
Registration Statement.
Very truly yours,
HAYNES AND BOONE, LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the 1998 Special Stock Option Plan of BeautiControl
Cosmetics, Inc. of our report dated January 2, 1998, with respect to the
consolidated financial statements of BeautiControl Cosmetics, Inc. included in
its Annual Report (Form 10-K) for the year ended November 30, 1997, filed with
the Securities and Exchange Commission.
ERNST & YOUNG LLP
Dallas, Texas
December 16, 1998
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated December 26, 1995, accompanying the consolidated
statements of income, changes in stockholders' equity and cash flows of
BeautiControl Cosmetics, Inc. and Subsidiaries for the year ended November 30,
1995, included in the Annual Report of BeautiControl Cosmetics, Inc. on Form
10-K for the year ended November 30, 1997, which are incorporated by reference
in this Registration Statement. We consent to the incorporation by reference in
the registration statement of the aforementioned report.
GRANT THORNTON LLP
Dallas, Texas
December 16, 1998
<PAGE> 1
EXHIBIT 99.1
BEAUTICONTROL COSMETICS, INC.
1998 SPECIAL STOCK OPTION PLAN
1. PURPOSE. The purpose of the Plan is to provide non-employee
directors of BeautiControl Cosmetics, Inc. (the "Corporation") with a
proprietary interest in the Corporation through the granting of options which
will:
(a) provide a means through which the Corporation may attract
able persons to serve as non-employee directors of the Corporation;
(b) increase the interest of non-employee directors in the
Corporation's welfare; and
(c) furnish an incentive to the non-employee directors to
continue their services for the Corporation and to reward them for
their services in a manner that will suitably recognize the value of
their judgment, counsel and expertise.
2. ADMINISTRATION. The Plan shall be administered by the Board of
Directors of the Corporation ("Board"), or a committee thereof; provided,
however, that the Board in its discretion may appoint a Stock Option Committee
("Committee") consisting of not less than two non-employee members of the Board,
for the purpose of administering the Plan. Except as otherwise provided by the
Board in written directions to the Committee, the Committee shall have all of
the powers with respect to the Plan. Any member of the Committee (or all members
in the event the Board elects to assume direct responsibility for administration
of the Plan) may be removed at any time, with or without cause, by resolution of
the Board. Any vacancy occurring in the membership of the Committee may be
filled by appointment by the Board.
The Committee shall select one of its members to act as its Chairman,
and shall make such rules and regulations for its operation as it deems
appropriate. A majority of the Committee shall constitute a quorum and the act
of a majority of the members of the Committee present at a meeting at which a
quorum is present shall be the act of the Committee.
3. PARTICIPANTS. Only directors who are not employees of the
Corporation shall be eligible to participate in the Plan.
4. SHARES SUBJECT TO PLAN. The Board may not grant options under the
Plan, in the aggregate, for more than 59,000 shares of Common Stock of the
Corporation (subject to adjustment in accordance with Section 10). Shares to be
optioned and sold may be made available from either authorized but unissued
Common Stock or Common Stock held by the Corporation in its treasury. Shares
that by reason of the expiration of an option or otherwise are no longer subject
to purchase pursuant to an option granted under the Plan may be reoffered under
the Plan.
5. GRANTS OF OPTIONS. All options under this Plan shall be granted by
the Board. The grant of an option shall be evidenced by a stock option agreement
containing such terms and provisions as are approved by the Board, but not
inconsistent with this Plan. The Corporation shall execute stock option
agreements upon instructions from the Board.
Each participant in the Plan shall be granted options in the following
manner:
(a) When a person is first elected or appointed as a director
of the Corporation, the Board shall grant such person, at the meeting
of the Board in which such person has been appointed, or at the first
meeting of the Board following his or her election, options to purchase
2,500 shares of Common Stock; and
(b) In addition to the foregoing, throughout the term of this
Plan, on the fourteenth (14th) business day (the "Determination Date")
after the last day of the Corporation's fiscal year, the Committee
shall grant to each non-employee director options to purchase 1,000
shares of Common Stock if the Corporation's net income for the fiscal
year immediately preceding the Determination Date is equal to or
greater than 105% of the Corporation's net income for such previous
fiscal year.
-11-
<PAGE> 2
6. EXERCISE PRICE. The exercise price of options granted hereunder
shall be 100% of the fair market value of the Common Stock on the date of grant
of such option. For the purposes hereof, the fair market value of the Common
Stock shall be the closing price of the Common Stock on such date on the
principal national securities exchange on which the Common Stock is listed, or
if not so listed, the closing price of the Common Stock on such date on the
NASDAQ National Market, or if not so quoted, the average of the bid and asked
prices of the Common Stock on such date in such other market in which shares of
Common Stock are regularly quoted, or if not so quoted, as established by the
Board on such date.
7. TERM OF OPTIONS. Each option and all rights thereunder shall expire
ten (10) years from the date on which the option is granted. No option shall be
exercised by any participant until after the expiration of a period of one (1)
year from the date of grant.
8. TERMINATION OF SERVICE AS DIRECTOR. An option shall terminate and no
rights thereunder may be exercised if the person to whom it is granted ceases to
serve as a director of the Corporation, except that (and subject to Section 11):
(a) If the holder of an option ceases to serve as a director
of the Corporation for any reason other than death, the holder of an
option may, at any time within not more than three (3) months after
such holder's service to the Corporation as a director ceases, exercise
an option to the extent, and only to the extent, that the option or
portion thereof had become exercisable on the date of such holder's
service to the Corporation as a director ceased; and
(b) If a holder of an option dies prior to the termination of
his right to exercise an option in accordance with the provisions of
his stock option agreement without having totally exercised the option,
the option may be exercised, to the extent of the shares with respect
to which the option could have been exercised by the holder on the date
of the holder's death, by the holder's estate or by the person who
acquired the right to exercise the option by bequest or inheritance or
by reason of the death of the holder. Any option exercised after the
death of a holder must be exercised prior to the date of
its expiration according to its terms or one year from the date of the
holder's death, whichever first occurs.
9. EXERCISE OF OPTIONS. An option granted under the Plan shall be
exercisable as follows:
(a) Method of Exercise of Options. Each exercise of an option
granted hereunder, whether in whole or in part, shall be by written
notice to the Secretary of the Corporation, designating the number of
shares of Common Stock as to which the option is exercised, and shall
be accompanied by payment in full for the number of shares of Common
Stock so designated, together with any written statements required by
any applicable securities laws. Unless further restricted by the Board
in the option agreement granting the option, payment for options to be
exercised shall be made (i) in cash, (ii) by certified or cashier's
check, (iii) with shares of Common Stock, (iv) at the sole discretion
of the Board, with a promissory note bearing a reasonable rate of
interest, (v) by delivery to the Corporation of irrevocable
instructions from the option holder to a broker or dealer, reasonably
acceptable to the Corporation, to sell certain of the shares of Common
Stock purchased upon exercise of the option or to pledge such shares as
collateral for a loan and promptly deliver to the Corporation the
amount of sale or loan proceeds necessary to pay such purchase price,
or (vi) by a combination of any of the foregoing. If paid in whole or
in part with shares of Common Stock, the value of the shares of Common
Stock surrendered shall be their market value as determined by the
Board in a uniform and non-discriminatory manner. Nothing herein shall
prohibit the Corporation, in its sole discretion, from lending to the
option holder, guaranteeing a loan to the option holder, or otherwise
assisting the option holder to obtain the cash necessary to exercise
all or a portion of an option granted hereunder. Fractional shares may
not be purchased under an option. An option shall be deemed to be
exercised when such notice and payment have been received.
(b) Limitations on Exercise of Options. Except as otherwise
provided in this Plan, each option granted under the Plan shall be
exercisable, whether in whole or in part, no earlier than one (1) year
from the date of grant of the option, and only in such installments as
may be specified in the agreement granting the option. In no event may
an option be exercised or shares of Common Stock issued pursuant to an
option if any necessary listing of the shares of Common Stock on a
stock exchange or any necessary registration under state or federal
securities laws has not been accomplished.
<PAGE> 3
10. CAPITAL ADJUSTMENTS. The aggregate number of shares of Common Stock
which may be purchased pursuant to options to be granted under the Plan, the
number of shares of Common Stock covered by each outstanding option granted
under the Plan, and the option price for outstanding options, shall be
proportionately adjusted to reflect any stock dividend, stock split, share
combination, exchange of shares, recapitalization, merger, consolidation,
reorganization, liquidation, or the like, of or by the Corporation. Any
fractional shares resulting from any such adjustment shall be eliminated for the
purposes of such adjustment.
11. REORGANIZATION; MERGER. Subject to any required action by the
stockholders, if the Corporation shall be the surviving or resulting corporation
in any merger or consolidation, any option granted hereunder shall pertain to
and apply to the securities or rights (including cash, property or assets) to
which a holder of the number of shares of Common Stock subject to the option
would have been entitled. In the event of any merger or consolidation pursuant
to which the Corporation is not the surviving or resulting corporation, there
shall be substituted for the shares of Common Stock an appropriate number of
shares of each class of stock or other securities or the amount of cash,
property or assets of the surviving or consolidated corporation in respect of
such shares exercisable for such stock, securities, cash or property in
accordance with their terms. Notwithstanding the foregoing however (or anything
to the contrary contained elsewhere in this Plan), all such options may be
canceled by the Corporation as of the effective date of any such reorganization,
merger or consolidation or of any dissolution or liquidation of the Corporation
by giving notice to each holder thereof (or to his personal representative) of
its intention to do so and by permitting the purchase during the thirty (30) day
period next preceding such effective date of all of the shares subject to such
outstanding options, without regard to the installment provisions of any option
agreement.
12. LIQUIDATION; DISSOLUTION. In case the Corporation shall at any time
while any option under this Plan shall be in force and remain unexpired, sell
all or substantially all its property or dissolve, liquidate or wind up its
affairs, each participant may thereafter receive upon exercise thereof in lieu
of each share of Common Stock of the Corporation which such participant would
have been entitled to receive, the same kind and amount of any securities or
assets as may be issuable, distributable or payable upon any such sale,
dissolution, liquidation or winding up with respect to each share of Common
Stock of the Corporation. In the event that the Corporation shall at any time
prior to the expiration of any option make any partial distribution of its
assets, in the nature of a partial liquidation, whether payable in cash or in
kind (but excluding the distribution of a cash dividend payable out of earned
surplus and designated as such), then in such event the exercise prices then in
effect with respect to each option shall be reduced, on the payment date of such
distribution, in proportion to the percentage reduction in the tangible book
value of the shares of the Corporation's Common Stock (determined in accordance
with generally accepted accounting principles) resulting by reason of such
distribution.
13. ACCELERATION.
(a) A "Change in Control" for purposes of this Plan shall mean
(i) without prior approval of the Board a single person or entity or
group of affiliated persons or entitles acquires more than 50% of the
Common Stock issued and outstanding immediately prior to such
acquisition; (ii) stockholders approve the consummation of any merger
of the Corporation or any sale or other disposition of all or
substantially all of its assets, if the stockholders of the Corporation
immediately before such transaction own, immediately after consummation
of such transaction, equity securities (other than options and other
rights to acquire equity securities) possessing less than 50% of the
voting power of the surviving or acquiring corporation; or (iii) a
change in the majority of the Board during any 24-month period without
the approval of a majority of directors in office at the beginning of
such period.
(b) If a Change in Control has occurred, all outstanding
options shall be immediately exercisable by the holder of the option
for the total remaining number of shares of Common Stock covered by the
option. Such option may then be exercised by its holder at any time
within a period of thirty (30) days following the date on which the
Change of Control occurred, unless otherwise limited by the applicable
stock option agreement or by Section 11.
(c) Any options subject to acceleration under this Section
that are not exercised during the period of thirty (30) days provided
in subsection (b) above shall be treated as if no Change in Control had
occurred and shall be governed by their original terms.
14. ASSIGNABILITY. Unless the Board provides otherwise, options granted
under this Plan may be transferred by a participant to (i) the spouse, children
or grandchildren of the participant ("Immediate Family Members"); (ii) a trust
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<PAGE> 4
or trusts for the exclusive benefit of such Immediate Family Members; (iii) a
partnership in which such Immediate Family Members are the only partners; (iv)
an entity exempt from federal income tax pursuant to Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended (the "Code") or any successor
provision; or (v) a split interest trust or pooled income fund described in
Section 25229(c)(2) of the Code or any successor provision, provided that (x)
there shall be no consideration for any such transfer, and (y) subsequent
transfers of a transferred stock option shall be prohibited except those by will
or the laws of descent and distribution or pursuant to a qualified domestic
relations order as defined in the Code or Title I of the Employee Retirement
Income Security Act of 1974, as amended. Following transfer, any such stock
option shall continue to be subject to the same terms and conditions as were
applicable immediately prior to transfer, and that for the purposes of this Plan
the terms "participant," "holder," and "option holder" shall be deemed to
include the transferee. After any such transfer, the events described under the
heading "Termination of Service as Director" (set forth in Section 8) shall
continue to be applied with respect to the original participant, and the options
shall be exercisable by the transferee only to the extent described in Section
8. The Board and the Corporation shall have no obligation to inform any
transferee of any expiration, termination, lapse or acceleration of such option.
The Corporation shall have no obligation to register with any federal or state
securities commission or agency any Common Stock issuable or issued under this
Plan that has been transferred by a participant under this Section 14.
15. INTERPRETATION. The Board shall interpret this Plan and shall
prescribe such rules in connection with the operation of the Plan as it
determines to be advisable for the administration of the Plan. The Board may
rescind and amend its rules.
16. AMENDMENT AND TERMINATION OF THE PLAN. This Plan may be amended or
terminated by the Board at any time without the approval of the stockholders of
the Corporation.
17. EFFECT OF THE PLAN. Neither the adoption of this Plan nor any
action of the Board shall be deemed to give any option holder any right to
continue to serve as a director of the Corporation or any other rights except as
may be evidenced by a stock option agreement, or any amendment thereto, duly
authorized by the Board and executed on behalf of the Corporation and then only
to the extent and upon the terms and conditions expressly set forth therein.
18. INVESTMENT INTENT. The Corporation may require that there be
presented to and filed with it by any participant under the Plan such evidence
as it may deem necessary to establish that the options granted or shares of
Common Stock granted or the shares of Common Stock to be purchased are being
acquired for investment and not with a view to their distribution.
19. TERM. Unless sooner terminated by action of the Board, this Plan
will terminate on February 18, 2008. The Board may not grant options under this
Plan after that date, but options granted before that date will continue to be
effective in accordance with their terms and conditions.
20. DEFINITIONS. For the purpose of this Plan, unless the context
requires otherwise, the following terms shall have the meanings indicated:
(a) "Plan" means this 1998 Special Stock Option Plan, as
amended from time to time.
(b) "Corporation" means BeautiControl Cosmetics, Inc., a
Delaware corporation.
(c) "Board" means the Board of Directors of the Corporation
and, to the extent applicable, or such members thereof as are delegated
powers under Section 2 of this Plan.
(d) "Common Stock" means the Common Stock which the
Corporation is currently authorized to issue or may in the future be
authorized to issue.
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<PAGE> 5
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
executed as of February 18, 1998.
By: /s/ RICHARD W. HEATH
-----------------------------
Richard W. Heath, President
Attest:
/s/ M. DOUGLAS TUCKER
- -----------------------------------
M. Douglas Tucker, Secretary
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