As filed with the Securities and Exchange Commission on May 3, 2007.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SALLY BEAUTY HOLDINGS, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware |
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36-2257936 |
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(State or Other
Jurisdiction of Incorporation
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(I.R.S. Employer
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3001 Colorado Boulevard |
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Denton, Texas |
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76210 |
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(Address of Principal Executive Offices) |
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(Zip Code) |
SALLY BEAUTY HOLDINGS, INC. 2007 OMNIBUS INCENTIVE PLAN
(Full Title of the Plan)
Raal H. Roos
Senior Vice President, General Counsel and Secretary
SALLY BEAUTY HOLDINGS, INC.
3001 Colorado Boulevard
Denton, Texas 76210
(Name and Address of Agent For Service)
(940) 898-7500
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Thomas W. Hughes, Esq.
Fulbright & Jaworski L.L.P.
2200 Ross Avenue Suite 2800
Dallas, Texas 75201
Telephone: (214) 855-8000
Facsimile: (214) 855-8200
CALCULATION OF REGISTRATION FEE
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Title of Each Class of
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Amount To Be Registered (1) |
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Proposed Maximum
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Proposed Maximum
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Amount of
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Common Stock, $0.01 par value |
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10,000,000 shares |
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$9.79 |
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$97,900,000 |
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$3,005.53 |
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(1) Plus such indeterminable number of additional shares as may be issued as a result of an adjustment in the shares in the event of a stock split, stock dividend or similar capital adjustment, as required under the Sally Beauty Holdings, Inc. 2007 Omnibus Incentive Plan.
(2) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h) under the Securities Act of 1933, as amended. Pursuant to Rule 457(h), this estimate is based upon the average of the high and low prices of the Registrant’s common stock, par value $0.01 per share, on May 2, 2007 (as reported on The New York Stock Exchange).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I of Form S-8 to be contained in a prospectus meeting the requirements of Section 10(a) of the Securities Act of 1933, as amended (the “Securities Act”), is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933 and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which were filed by Sally Beauty Holdings, Inc. (the “Registrant”), with the Securities and Exchange Commission (the “Commission”), and any future filings made by the Registrant with the Commission under Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents:
1.
Annual report on Form
10-K for the fiscal year ended September 30, 2006, filed with the Commission on
December 22, 2006;
2. Amendment No. 1 to annual report on Form 10-K/A for the fiscal year ended September 30, 2006, filed with the Commission on April 9, 2007;
3.
Quarterly report on
Form 10-Q for the quarter ended December 31, 2006, filed with the
Commission on
February 9, 2007;
4. Current report on Form 8-K, dated January 12, 2007, filed with the Commission on January 16, 2007;
5. Current report on Form 8-K, dated January 24, 2007, filed with the Commission on January 29, 2007;
6. Current report on Form 8-K, dated February 15, 2007, filed with the Commission on February 16, 2007; and
7. A description of the Registrant’s common stock, $0.01 par value per share (the “Common Stock”), is set forth under the caption “Description of New Sally Capital Stock” in the Registrant’s prospectus which forms a part of the Registrant’s registration statement on Form S-4 (File No. 333-136259) filed with the Commission on August 2, 2006, as thereafter amended.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Delaware General Corporation Law
Subsection (a) of Section 145 of the Delaware General Corporation Law (the “DGCL”), empowers a corporation 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, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation 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 him or her in connection with such action, suit or proceeding 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 corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation 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 or suit by right of the corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection with the defense or settlement of such action or 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 corporation, except that no indemnification may be made in respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a present or former director or officer of a corporation has been successful on the merits or otherwise in the defense of any such action, suit or proceeding referred to in subsections (a) and (b) of Section 145 or in the defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith; that the indemnification provided for by Section 145 shall not be deemed exclusive of any other rights which the indemnified party may be entitled; that indemnification provided by Section 145 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of such person’s heirs, executors and administrators; and that a corporation may purchase and maintain insurance on behalf of a director or officer of the corporation against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liabilities under Section 145.
Amended and Restated Certificate of Incorporation
The Registrant’s amended and restated certificate of incorporation provides that each of its directors shall be indemnified to the fullest extent permitted by Delaware law, provided that the Registrant shall not be obligated to indemnify or advance expenses to a director in respect of an action, suit or proceeding (or part thereof) instituted by such director, unless such action, suit or proceeding (or part thereof) has been authorized by the Registrant’s board of directors.
Second Amended and Restated By-Laws
The Registrant’s second amended and restated by-laws provide that each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or an officer of the Registrant or is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving at the request of the Registrant, as a director, officer, employee or agent, shall be indemnified and held harmless by the Registrant to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended, against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such person in
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connection therewith; provided, however, that, with respect to proceedings to enforce rights to indemnification, the Registrant shall indemnify any such indemnitee in connection with a proceeding initiated by such indemnitee only if such proceeding was authorized by the Registrant’s board of directors, subject to certain exceptions. The Registrant’s amended and restated by-laws also provide that any person entitled to such indemnification shall have the right to be paid by the Registrant expenses incurred in defending such proceeding in advance of its final disposition.
Director and Officer Indemnification Agreements
Gary G. Winterhalter is party to an Indemnification Agreement with the Registrant which provides, among other things, that subject to the procedures set forth therein, the Registrant will, to the fullest extent permitted by applicable law, indemnify Mr. Winterhalter if, by reason of his corporate status as a director or officer of the Registrant or any of its subsidiaries or, at the Registrant’s request, of another entity, he incurs any losses, liabilities, judgments, fines, penalties or amounts paid in settlement in connection with any threatened, pending or completed proceeding, whether of a civil, criminal administrative or investigative nature. In addition, the Indemnification Agreement provides for the advancement of expenses incurred by Mr. Winterhalter, subject to certain exceptions, in connection with any proceeding covered by the Indemnification Agreement. It also requires that the Registrant cover Mr. Winterhalter under liability insurance available to any of its directors, officers or employees.
David L. Rea is a party to an Indemnification Agreement with the Registrant which provides, among other things, that subject to the procedures set forth therein, the Registrant will, to the fullest extent permitted by applicable law, indemnify Mr. Rea if, by reason of his corporate status as an officer, he incurs any losses, liabilities, judgments, fines, penalties or amounts paid in settlement in connection with any threatened, pending or completed proceeding, whether of a civil, criminal administrative or investigative nature. In addition, the Indemnification Agreement provides for the advancement of expenses incurred by Mr. Rea, subject to certain exceptions, in connection with any proceeding covered by the Indemnification Agreement. It also requires that the Registrant cover Mr. Rea under liability insurance available to any of its directors, officers or employees.
Each member of the Registrant’s board of directors is a party to an Indemnification Agreement with the Registrant which provides, among other things, that subject to the procedures set forth therein, the Registrant will, to the fullest extent permitted by applicable law, indemnify a director if, by reason of such director’s status as a director of the Registrant, such director incurs any losses, liabilities, judgments, fines, penalties or amounts paid in settlement in connection with any threatened, pending or completed proceeding, whether of a civil, criminal administrative or investigative nature. In addition, each indemnification agreement provides for the advancement of expenses incurred by a director, subject to certain exceptions, in connection with any proceeding covered by the indemnification agreement. Each indemnification agreement also requires that the Registrant cover a director under liability insurance available to any of the Registrant’s directors, officers or employees.
Insurance
The Registrant has obtained a directors’ and officers’ liability insurance policy insuring the directors and officers of the Registrant against certain losses resulting from wrongful acts committed by them as directors and officers of the Registrant, including liabilities arising under the Securities Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits to the Registration Statement are listed in the Exhibit Index to this Registration Statement and are incorporated herein by reference.
Item 9. Undertakings.
(a) The Registrant hereby undertakes:
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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;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in this Registration Statement; and
(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;
provided, however , that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act, that are incorporated by reference in this Registration Statement.
2. That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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 Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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 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 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.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe 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 Denton, State of Texas, on this 3 rd day of May, 2007.
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SALLY BEAUTY HOLDINGS, INC. |
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By: |
/s/ Raal H. Roos |
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Raal H. Roos |
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Senior Vice President, General Counsel |
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and Secretary |
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Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the date indicated.
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Signature |
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Title |
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Date |
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/s/ James G. Berges |
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Chairman of the Board of Directors |
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May 3, 2007 |
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James G. Berges |
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/s/ Gary G. Winterhalter |
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President, Chief Executive Officer and |
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May 3, 2007 |
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Gary G. Winterhalter |
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Director (Principal Executive Officer) |
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/s/ David L. Rea |
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Senior Vice President and Chief Financial |
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May 3, 2007 |
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David L. Rea |
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Officer (Principal Financial and |
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Accounting Officer) |
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/s/ Kathleen Affeldt |
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Director |
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May 3, 2007 |
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Kathleen Affeldt |
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/s/ Marshall E. Eisenberg |
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Director |
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May 3, 2007 |
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Marshall E. Eisenberg |
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/s/ Donald J. Gogel |
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Director |
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May 3, 2007 |
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Donald J. Gogel |
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/s/ Walter Metcalfe |
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Director |
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May 3, 2007 |
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Walter Metcalfe |
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/s/ Robert R. McMaster |
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Director |
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May 3, 2007 |
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Robert R. McMaster |
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/s/ John Miller |
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Director |
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May 3, 2007 |
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John Miller |
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/s/ Martha Miller de Lombera |
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Director |
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May 3, 2007 |
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Martha Miller de Lombera |
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/s/ Edward W. Rabin |
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Director |
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May 3, 2007 |
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Edward W. Rabin |
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/s/ Richard J. Schnall |
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Director |
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May 3, 2007 |
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Richard J. Schnall |
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EXHIBIT INDEX
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Exhibit
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Description of Exhibit |
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4.1 |
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Amended and Restated Certificate of Incorporation of Sally Beauty Holdings, Inc., dated November 16, 2006, which is incorporated herein by reference from Exhibit 4.1 to the Company’s Registration Statement on Form S-8 filed on November 20, 2006 |
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4.2 |
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Second Amended and Restated Bylaws of Sally Beauty Holdings, Inc., dated December 5, 2006, which is incorporated herein by reference from Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on December 7, 2006 |
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4.4* |
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Sally Beauty Holdings, Inc. 2007 Omnibus Incentive Plan |
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5.1* |
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Opinion of Debevoise & Plimpton LLP regarding the validity of the securities being registered. |
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23.1* |
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Consent of Debevoise & Plimpton LLP (included as part of Exhibit 5.1). |
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23.2* |
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Consent of KPMG LLP |
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24.1* |
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Power of Attorney |
* Filed herewith.
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Exhibit 4.4
SALLY
BEAUTY HOLDINGS
2007 OMNIBUS INCENTIVE PLAN
The purposes of the Plan are to foster and promote the long-term financial success of the Company and the Subsidiaries and materially increase shareholder value by ( a ) motivating superior performance by Participants, ( b ) providing Participants with an ownership interest in the Company, and ( c ) enabling the Company and the Subsidiaries to attract and retain the services of outstanding Employees upon whose judgment, interest and special effort the successful conduct of its operations is largely dependent.
“ Adjustment Event ” means any dividend payable in capital stock, stock split, share combination, extraordinary cash dividend, recapitalization, reorganization, merger, consolidation, split-up, spin-off, combination, exchange of shares or other similar event affecting the Common Stock.
“ Affiliate ” means, with respect to any person, any other person controlled by, controlling or under common control with such person.
“ Alternative Award ” has the meaning given in Section 9.2.
“ Award ” means any Option, Stock Appreciation Right, Performance Stock, Performance Stock Unit, Performance Unit, Restricted Stock, Restricted Stock Unit, or Deferred Stock granted pursuant to the Plan, including an Award combining two or more types in a single grant.
“ Award Agreement ” means any written agreement, contract, or other instrument or document evidencing any Award granted by the Committee pursuant to the Plan.
“ Business ” has the meaning given in Section 5.5.
“ Board ” means the Board of Directors of the Company.
“ Cause ” means, except as otherwise defined in an Award Agreement, with respect to any Participant (as determined by the Committee in its sole discretion) ( i ) the continued and willful failure of the Participant substantially to perform the duties of his or her employment for the Company or any Subsidiary (other than any such failure due to the Participant’s Disability); ( ii ) the Participant’s engaging in willful or serious misconduct that has caused or could reasonably be expected to result in material injury to the Company or any of its Subsidiaries or
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Affiliates, including, but not limited to by way of damage to the Company’s or a Subsidiary’s reputation or public standing; ( iii ) the Participant’s conviction of, or entering a plea of guilty or nolo contendere to, a crime constituting a felony; or ( iv ) the Participant’s material violation or breach of the Company’s or any Subsidiary’s code of conduct or ethics or other Company policy or rule or the material breach by the Participant of any of his or her obligations under any written covenant or agreement with the Company or any of its Subsidiaries or Affiliates; provided that, with respect to any Participant who is a party to an employment agreement with the Company or any Subsidiary, “Cause” shall have the meaning specified in such Participant’s employment agreement.
“ CD&R Fund ” means the Clayton, Dubilier & Rice Fund VII Limited Partnership, a Cayman Islands exempted limited partnership, and any successor or other investment vehicle managed by Clayton, Dubilier & Rice, Inc.
“ Change in Control ” means the first occurrence of any of the following events after the effective date of the Plan:
(a) the acquisition by any person, entity or “group” (as defined in Section 13(d) of the Exchange Act), other than the Company, the Subsidiaries, any employee benefit plan of the Company or the Subsidiaries, the CD&R Fund or any Affiliate of the CD&R Fund, of 50% or more of the combined voting power of the Company’s then outstanding voting securities;
(b) within any twenty-four (24) month period, the Incumbent Directors shall cease to constitute at least a majority of the Board or the board of directors of any successor to the Company; provided, however, that any director elected to the Board, or nominated for election, by a majority of the Incumbent Directors then still in office shall be deemed to be an Incumbent Director for purposes of this clause (b);
(c) the merger or consolidation of the Company as a result of which persons who were owners of the voting securities of the Company, immediately prior to such merger or consolidation, do not, immediately thereafter, own, directly or indirectly, more than 50% of the combined voting power entitled to vote generally in the election of directors of the merged or consolidated company;
(d) the approval by the Company’s shareholders of the liquidation or dissolution of the Company other than a liquidation of the Company into any Subsidiary or a liquidation a result of which persons who were stockholders of the Company immediately prior to such liquidation own, directly or indirectly, more than 50% of the combined voting power entitled to vote generally in the election of directors of the entity that holds substantially all of the assets of the Company following such event; and
(e) the sale, transfer or other disposition of all or substantially all of the assets of the Company to one or more persons or entities that are not, immediately prior to such sale, transfer or other disposition, Affiliates of the Company or the CD&R Fund.
Notwithstanding the foregoing, a “Change in Control” shall not be deemed to occur if the Company files for bankruptcy, liquidation or reorganization under the United States Bankruptcy Code.
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“ Change in Control Price ” means the price per share on a fully-diluted basis offered in conjunction with any transaction resulting in a Change in Control, as determined in good faith by the Committee as constituted before the Change in Control, if any part of the offered price is payable other than in cash.
“ Code ” means the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder.
“ Committee ” means the Compensation Committee of the Board which is intended to consist solely of two or more ( i ) “outside directors” within the meaning of Treas. Reg. Sec. 1.162-27 promulgated under section 162(m) of the Code and any successor regulation, ( ii ) “Non-Employee Directors” within the meaning of Rule 16b-3 promulgated under the Exchange Act and, and ( iii ) independent directors under the rules of the New York Stock Exchange.
“ Common Stock ” means the common stock, par value $0.01 per share, of the Company.
“ Company ” means Sally Beauty Holdings, Inc., a Delaware corporation, and any successor thereto.
“ Deferred Annual Amount ” has the meaning given in Section 8.1.
“ Deferred Stock ” means a Participant’s contractual right to receive a stated number of shares of Common Stock or, if provided by the Committee on the grant date, cash equal to the Fair Market Value of such shares of Common Stock, under the Plan at the end of a specified period of time.
“ Dividend Equivalents ” means an amount equal to any dividends and distributions paid by the Company with respect to the number of shares of Common Stock subject to an Award.
“ Disability ” means, unless otherwise provided in an Award Agreement, a physical or mental disability or infirmity that prevents or is reasonably expected to prevent the performance of a Participant’s employment-related duties for a period of six months or longer and, within 30 days after the Company notifies the Participant in writing that it intends to terminate his employment, the Participant shall not have returned to the performance of his employment-related duties on a full-time basis; provided that for purposes of Section 5.5(a) in respect of ISOs, the term “Disability” shall have meaning assigned to the term “Permanent and Total Disability” by section 22(e)(3) of the Code ( i.e. , physical or mental disability or infirmity lasting not less than 12 months). The Committee’s reasoned and good faith judgment of Disability shall be final, binding and conclusive, and shall be based on such competent medical evidence as shall be presented to it by such Participant and/or by any physician or group of physicians or other competent medical expert employed by the Participant or the Company to advise the Committee. Notwithstanding the foregoing (but except in the case of ISOs), with respect to any Participant who is a party to an employment agreement with the Company or any Subsidiary, “Disability” shall have the meaning, if any, specified in such Participant’s employment agreement.
“ Employee ” means any non-employee director, officer or employee of, or any natural person who is a consultant or advisor to, the Company or any Subsidiary.
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder.
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“ Executive Officer ” means each person who is an officer of the Company or any Subsidiary and who is subject to the reporting requirements under Section 16(a) of the Exchange Act.
“ Fair Market Value ” means, unless otherwise defined in an Award Agreement, as of any date, the closing price of one share of Common Stock on the New York Stock Exchange (or on such other recognized market or quotation system on which the trading prices of Common Stock are traded or quoted at the relevant time) on the date as of which such Fair Market Value is determined. If there are no Common Stock transactions reported the New York Stock Exchange (or on such other exchange or system as described above) on such date, Fair Market Value shall mean closing price for a share of Common Stock on the immediately preceding day on which Common Stock transactions were so reported.
“ Financial Gain ” has the meaning given in Section 5.5.
“ Incumbent Director ” means with respect to any period of time specified under the Plan for purposes of determining a Change in Control, the persons who were members of the Board at the beginning of such period; provided, that a director elected, or nominated for election, to the Board in connection with a proxy contest shall not be considered an Incumbent Director.
“ ISOs ” has the meaning given in Section 5.1(a).
“ New Employer ” means a Participant’s employer, or the parent or a subsidiary of such employer, immediately following a Change in Control.
“ NSOs ” has the meaning given in Section 5.1(a).
“ One-Year Date ” has the meaning given in Section 5.5.
“ Option ” means the right granted to a Participant pursuant to the Plan to purchase a stated number of shares of Common Stock at a stated price for a specified period of time.
“ Participant ” means any Employee or prospective Employee designated by the Committee to receive an Award under the Plan.
“ Performance Period ” means the period, as determined by the Committee, during which the performance of the Company, any Subsidiary, any business unit and any individual is measured to determine whether and the extent to which the applicable performance measures have been achieved.
“ Performance Stock ” means a grant of a stated number of shares of Common Stock to a Participant under the Plan that is forfeitable by the Participant until the attainment of specified performance goals, or until otherwise determined by the Committee or in accordance with the Plan, subject to the continuous employment of the Participant through the applicable Performance Period.
“ Performance Stock Unit ” means a Participant’s contractual right to receive a stated number of shares of Common Stock or, if provided by the Committee on or after the grant date, cash equal to the Fair Market Value of such shares of Common Stock, under the Plan at a specified time that is forfeitable by the Participant until the attainment of specified performance
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goals, or until otherwise determined by the Committee or in accordance with the Plan, subject to the continuous employment of the Participant through the applicable Performance Period.
“ Performance Unit ” means a Participant’s contractual right to receive a cash-denominated award, payable in cash or shares of Common Stock, under the Plan at a specified time that is forfeitable by the Participant until the attainment of specified performance goals, or until otherwise determined by the Committee or in accordance with the Plan, subject to the continuous employment of the Participant through the applicable Performance Period.
“ Permitted Transferee ” has the meaning given in Section 12.1.
“ Plan ” means this Sally Beauty Holdings, Inc. Omnibus Stock Incentive Plan, as the same may be amended from time to time.
“ Prior Plan ” means the Alberto-Culver Company Employee Stock Option Plan of 2003 and the Alberto-Culver Company 2003 Restricted Stock Plan.
“ Replacement Award ” means an Award made to employees of companies acquired by the Company to replace incentive awards and opportunities held by such employees prior to such acquisition.
“ Restricted Stock ” means a grant of a stated number of shares of Common Stock to a Participant under the Plan that is forfeitable by the Participant until the completion of a specified period of future service, or until otherwise determined by the Committee or in accordance with the Plan.
“ Restricted Stock Unit ” means a Participant’s contractual right to receive a stated number of shares of Common Stock or, if provided by the Committee on the grant date, cash equal to the Fair Market Value of such shares of Common Stock, under the Plan at the end of a specified period of time that is forfeitable by the Participant until the completion of a specified period of future service, or until otherwise determined by the Committee or in accordance with the Plan.
“ Restriction Period ” means the period during which any Performance Stock, Performance Stock Units, Performance Units, Restricted Stock, Restricted Stock Units or freestanding Deferred Stock, as the case may be, are subject to forfeiture and/or restriction on transfer pursuant to the terms of the Plan.
“ Retained Awards ” has the meaning given in Section 6.6.
“ Retirement ” shall be reached when a Participant’s employment terminates from Company and any Subsidiary and at the time of such termination the sum of such Participant’s age and years of service as an employee of the Company or any Subsidiary equals or exceeds 75 years, and the Participant has at least attained the age of 55.
“ Stock Appreciation Right ” means, with respect to shares of Common Stock, the right to receive a payment from the Company in cash and/or shares of Common Stock equal to the product of ( i ) the excess, if any, of the Fair Market Value of one share of Common Stock on the exercise date over a specified base price fixed by the Committee on the grant date, multiplied by ( ii ) a stated number of shares of Common Stock.
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“ Subsidiary ” means any corporation in which the Company owns, directly or indirectly, stock representing 50% or more of the combined voting power of all classes of stock entitled to vote, and any other business organization, regardless of form, in which the Company possesses, directly or indirectly, 50% or more of the total combined equity interests in such organization.
“ Wrongful Conduct ” has the meaning given in Section 5.5.
“ Wrongful Conduct Period ” has the meaning given in Section 5.5.
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provided that on the grant date, the Committee may establish, in its sole discretion, a maximum amount per share which will be payable upon exercise of a Stock Appreciation Right. Upon such terms and conditions as the Committee may establish from time to time, a Participant may be permitted to defer the receipt of cash and/or shares of Common Stock otherwise deliverable upon exercise of a Stock Appreciation Right.
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“THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS (INCLUDING FORFEITURE) CONTAINED IN THE SALLY BEAUTY HOLDINGS 2007 STOCK INCENTIVE PLAN AND THE RELATED AWARD AGREEMENT AND NEITHER THIS CERTIFICATE NOR THE SHARES REPRESENTED BY IT ARE ASSIGNABLE OR OTHERWISE TRANSFERABLE EXCEPT IN
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ACCORDANCE WITH SUCH PLAN, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.”
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Notwithstanding anything to the contrary in the Plan, no Participant or Permitted Transferee shall have any voting or other rights as a stockholder of the Company with respect to any Common Stock covered by any Award until the issuance of a certificate or certificates to the Participant for such Common Stock. No adjustment shall be made for dividends or other rights for which the record date is prior to the issuance of such certificate or certificates.
The Plan shall be effective upon its adoption by the Board and approval by a majority of the stockholders of the Company, and shall continue in effect, unless sooner terminated pursuant to this Article XI, until the tenth anniversary of the date on which it is adopted by the Board (except as to Awards outstanding on that date). The Board or the Committee may at any time terminate or suspend the Plan, and from time to time may amend or modify the Plan; provided that without the approval by a majority of the votes cast at a meeting of shareholders at which a quorum representing a majority of the shares of the Company entitled to vote generally in the election of Directors is present in person or by proxy, no amendment or modification to the Plan may ( i ) materially increase the benefits accruing to participants under the Plan, ( ii ) except as otherwise expressly provided in Section 4.4, materially increase the number of shares of Common Stock subject to the Plan or the individual Award limitations specified in Section 4.3, ( iii ) modify the restrictions provided in Section 4.5, or ( iv ) materially modify the requirements for participation in the Plan. No amendment, modification, or termination of the Plan shall in any manner adversely affect any Award theretofore granted under the Plan, without the consent of the Participant.
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Exhibit 5.1
May 3, 2007
Sally Beauty Holding, Inc.
3001 Colorado Boulevard
Denton, Texas 76210
Attn: Raal H. Roos, Esq.
Ladies and Gentlemen:
We have acted as counsel to Sally Beauty Holdings, Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”) relating to 10,000,000 shares of the Company’s common stock, par value $.01 per share (the “Common Stock”), to be issued pursuant to the Sally Beauty Holdings 2007 Omnibus Incentive Plan (the “Plan”).
We have examined the originals, or copies certified or otherwise identified to our satisfaction, of the Plan and such other corporate records, documents, certificates or other instruments as in our judgment are necessary or appropriate to enable us to render the opinion set forth below.
Based on the foregoing, we are of the opinion that authorized but not previously issued shares of Common Stock that may be issued under the Plan have been duly authorized and when issued in accordance with the terms of the Plan will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the Company’s Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Debevoise & Plimpton LLP
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Sally Beauty Holdings, Inc.:
We consent to the use of our report dated December 21, 2006, with respect to the consolidated balance sheets of Sally Holdings, Inc. and Subsidiaries as of September 30, 2006 and 2005, and the related consolidated statements of earnings, cash flows and stockholder’s equity for each of the years in the three-year period ended September 30, 2006, incorporated by reference herein.
Our report refers to changes in the Company’s method of accounting for stock-based compensation effective October 1, 2005.
/s/ KPMG LLP
Dallas, Texas
April 30, 2007
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Raal H. Roos and Matt Haltom, jointly and severally, as his or her true and lawful attorney-in-fact and agent, acting alone, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign the Registration Statement filed on Form S-8 of Sally Beauty Holdings, Inc. and any or all amendments (including post-effective amendments) thereto and any new registration statement with respect to the offering contemplated thereby filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact full power and authority to do and reform each and every act and thing requisite or necessary to be done in and about the premises, as person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
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/s/ James G. Berges |
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Chairman of the Board of Directors |
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May 3, 2007 |
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James G. Berges |
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/s/ Gary G. Winterhalter |
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President, Chief Executive Officer and |
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May 3, 2007 |
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Gary G. Winterhalter |
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Director (Principal Executive Officer) |
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/s/ David L. Rea |
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Senior Vice President and Chief Financial |
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May 3, 2007 |
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David L. Rea |
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Officer (Principal Financial and |
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Accounting Officer) |
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/s/ Kathleen Affeldt |
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Director |
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May 3, 2007 |
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Kathleen Affeldt |
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/s/ Marshall E. Eisenberg |
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Director |
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May 3, 2007 |
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Marshall E. Eisenberg |
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/s/ Donald J. Gogel |
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Director |
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May 3, 2007 |
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Donald J. Gogel |
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/s/ Walter Metcalfe |
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Director |
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May 3, 2007 |
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Walter Metcalfe |
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/s/ Robert R. McMaster |
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Director |
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May 3, 2007 |
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Robert R. McMaster |
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/s/ John Miller |
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Director |
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May 3, 2007 |
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John Miller |
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/s/ Martha Miller de Lombera |
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Director |
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May 3, 2007 |
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Martha Miller de Lombera |
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/s/ Edward W. Rabin |
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Director |
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May 3, 2007 |
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Edward W. Rabin |
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/s/ Richard J. Schnall |
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Director |
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May 3, 2007 |
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Richard J. Schnall |
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