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As filed with the Securities and Exchange Commission on August 26, 2016.

Registration No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

e.l.f. Beauty, Inc.

(Exact name of Registrant as specified in its charter)

 

 

 

Delaware   2844   46-4464131

(State or other jurisdiction of

incorporation or organization)

 

(Primary Standard Industrial

Classification Code Number)

 

(I.R.S. Employer

Identification Number)

570 10 th Street

Oakland, CA 94607

(510) 778-7787

 

 

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

 

 

Tarang P. Amin

Chairman and Chief Executive Officer

e.l.f. Beauty, Inc.

570 10 th Street

Oakland, CA 94607

(510) 778-7787

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

 

Tad J. Freese, Esq.

Kathleen M. Wells, Esq.

Latham & Watkins LLP

140 Scott Drive

Menlo Park, CA 94025

Telephone: (650) 328-4600

Facsimile: (650) 463-2600

 

Thomas Holden, Esq.

Ropes & Gray LLP

Three Embarcadero Center

San Francisco, CA 94111

Telephone: (415) 315-6300

Facsimile: (415) 315-6350

Approximate date of commencement 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 on 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 this Form is a post-effective amendment filed pursuant to Rule 462(d) 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.   ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.   ¨

 

Large accelerated filer      ¨      Accelerated filer      ¨
Non-accelerated filer      x   (Do not check if a smaller reporting company)    Smaller reporting company      ¨

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of Each Class of

Securities to be Registered

 

Proposed

Maximum

Aggregate

Offering Price(1)

  Amount of
Registration Fee

Common Stock, $ 0.01 par value per share

  $ 100,000,000.00   $ 10,070.00

 

 

(1)   Estimated solely for the purpose of calculating the amount of the registration fee in accordance with Rule 457(o) under the Securities Act of 1933, as amended. Includes shares that the underwriters have the option to purchase to cover overallotments, if any.

 

 

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 the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.


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The information in this preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities nor does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.

 

Subject to completion, dated August 26, 2016

Preliminary prospectus

 

LOGO

e.l.f. Beauty, Inc.

             Shares

This is an initial public offering of common stock of e.l.f. Beauty, Inc. The selling stockholders are selling              shares of common stock, and we are selling              shares of our common stock in this offering. We will not receive any proceeds from the sale of shares by the selling stockholders. The estimated initial public offering price is between $          and $          per share. Currently, no public market exists for the shares.

We intend to apply to have our common stock approved for listing on the New York Stock Exchange under the symbol “ELF.”

We are an “emerging growth company” as defined by the Jumpstart Our Business Startups Act of 2012, and we have elected to comply with certain reduced public company reporting requirements for this prospectus and future filings.

 

        Per share        Total  

Initial public offering price

     $                      $                

Underwriting discounts and commissions(1)

     $           $     

Proceeds to us, before expenses

     $           $     

Proceeds to selling stockholders, before expenses

     $           $     

 

 

 

(1)   See “Underwriting” for additional information regarding underwriting compensation.

The underwriters may also purchase up to an additional              shares from us, at the initial public offering price, less the underwriting discount for 30 days from the date of this prospectus.

Investing in our common stock involves a high degree of risk. See “ Risk factors ” beginning on page 12.

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

The underwriters expect to deliver the shares to purchasers on or about                     , 2016.

 

J.P. Morgan   Morgan Stanley

 

Piper Jaffray   Wells Fargo Securities

 

William Blair   Cowen and Company   BMO Capital Markets   Stifel   SunTrust Robinson Humphrey

The date of this prospectus is                     , 2016


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LOGO


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LOGO

HIGH QUALITY COSMETICS
at an extraordinary value
e.l.f.


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LOGO

Ability to engage YOUNG, DIVERSE MAKEUP ENTHUSIASTS
@glambyzana @makeupwithjojo @lorenaurrea_makeup @beautybylex_19 @ashleyvera @stylewidsus @>courtney_laoexo @bellabriellc @melissajoy1987 @khirascottbouch @dardynraemura @kmkmakeup @blushandberries @alexiistherese @_tenaquin @readysetglamour @makemeupzo @yooyuliya


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LOGO

e.l.f.
Our Mission
We make luxurious beauty accessible for all women to play beautifully®.


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LOGO


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     Page  

Industry and market data

     ii   

Prospectus summary

     1   

The offering

     7   

Summary consolidated financial data

     9   

Risk factors

     12   

Special note regarding forward-looking statements

     39   

Trademarks, trade names and service marks

     40   

Use of proceeds

     41   

Dividend policy

     42   

Capitalization

     43   

Dilution

     44   

Unaudited pro forma condensed financial information

     46   

Selected consolidated financial data

     53   

Management’s discussion and analysis of financial condition and results of operations

     56   

Business

     71   

Management

     92   

Executive compensation

     98   

Certain relationships and related party transactions

     111   

Principal and selling stockholders

     114   

Description of capital stock

     117   

Description of certain indebtedness

     122   

Shares eligible for future sale

     126   

Material U.S. federal income tax consequences to non-U.S. holders

     128   

Underwriting

     131   

Legal matters

     135   

Experts

     135   

Where you can find additional information

     135   

Index to financial statements

     F-1   

You should rely only on the information contained in this prospectus or in any free writing prospectus we may authorize to be delivered or made available to you. Neither we, the selling stockholders nor the underwriters have authorized anyone to provide you with different information. The information in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus, or any free writing prospectus, as the case may be, or any sale of shares of our common stock.

Through and including                 , 2016 (the 25th day after the date of this prospectus), all dealers that effect transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to the dealers’ obligation to deliver a prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions.

For investors outside the United States: e.l.f. Beauty, Inc. (the “Company”), the selling stockholders and the underwriters are offering to sell, and seeking offers to buy, shares of our common stock only in jurisdictions where offers and sales are permitted. Neither we, the selling stockholders nor the underwriters have done anything that would permit this offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the shares of common stock and the distribution of this prospectus outside the United States.

Numerical figures included in this prospectus have been subject to rounding adjustments. Accordingly, numerical figures shown as totals in various tables may not be arithmetic aggregations of the figures that precede them.

 

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Industry and market data

Certain of the market data and other statistical information contained in this prospectus, such as the size, growth and share of the cosmetics industry and its constituent market segments, are based on information from independent industry organizations and other third-party sources, industry publications, surveys and forecasts. Some market data and statistical information contained in this prospectus are also based on management’s estimates and calculations, which are derived from our review and interpretation of the independent sources, our internal market and brand research and our knowledge of the cosmetics industry. Information that is based on estimates, forecasts, projections or similar methodologies is inherently subject to uncertainties, and actual events or circumstances may differ materially from events and circumstances that are assumed in this information.

References to e.l.f.’s share of the U.S. mass cosmetics market and top 10 U.S. cosmetics brands and the size and growth rates of the global and U.S. cosmetics category, segment, product and channel and skin care categories refer to retail sales in absolute dollar terms as tracked by Euromonitor International Limited’s Beauty and Personal Care 2016 edition system, published in March 2016 as part of its annual multi-client Passport research program, which includes food, drug and mass (“FDM”), department stores, direct and specialty channels; data reflects current prices and 2015 exchange rates fixed by Euromonitor. References to our retail sales from products launched in the last three years refer to U.S. retail sales across categories as tracked by Nielsen’s XAOC, including C-store database for the 52 weeks ended January 2, 2016 and prior years downloaded in April 2016, which includes the FDM channel. References to our and other brands’ U.S. cosmetics retail sales refer to U.S. retail sales of eye cosmetics, lip cosmetics, face cosmetics, nail cosmetics, cosmetics applicators and compact kits as tracked by Nielsen’s XAOC, including C-store database for the 52 weeks ended January 2, 2016 downloaded in April 2016. Other statements in this prospectus regarding market data, unless otherwise noted, are based on studies conducted by Calimesa Consulting Partners, LLC and MetrixLab, which we commissioned. These studies were based on surveys of a broad sampling of cosmetics consumers.

For the purposes of this prospectus:

 

  “aided awareness” is a measure of the number of people who express knowledge of a brand or product when prompted;

 

  “cosmetics” market segment refers to the market segment defined as Color Cosmetics by Euromonitor International Limited and consists of face makeup, eye makeup, lip products, nail products and color cosmetics sets/kits;

 

  “e-commerce” channel refers to the channel defined as Internet Retailing by Euromonitor International Limited; and FDM and specialty channels are per Company definitions based on Euromonitor International Limited data;

 

  “heaviest” purchasers or users refers to consumers who identified themselves as professional, expert or enthusiast in the study conducted by MetrixLab;

 

  “incremental sales” refer to consumers buying e.l.f. products as additional cosmetics purchases at retail stores as opposed to diverting sales from another brand;

 

  “prestige” market segment refers to the market segment defined as Premium by Euromonitor International Limited;

 

  “retail sales” refers to the purchase price paid by the end consumer;

 

  “share” refers to e.l.f.’s market share based on e.l.f.’s net sales in comparison to retail sales in absolute dollar terms; and

 

  “unaided awareness” is a measure of the number of people who express knowledge of a brand or product without prompting.

 

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Prospectus summary

This summary highlights selected information contained elsewhere in this prospectus. This summary does not contain all the information that you should consider before deciding to invest in our common stock. You should read the entire prospectus carefully, including “Risk factors” and our consolidated financial statements and related notes included elsewhere in this prospectus, before making an investment decision. In this prospectus, the terms “e.l.f.,” “we,” “us,” “our” and the “Company” refer to e.l.f. Beauty, Inc. and its consolidated subsidiaries.

e.l.f.: Changing the face of beauty

We are one of the fastest growing, most innovative cosmetics companies in the United States. Driven by our mission to make luxurious beauty accessible for all women to play beautifully ® , we have challenged the traditional belief that quality cosmetics are only available at high prices in select channels. e.l.f. offers high-quality, prestige-inspired beauty products for e yes, l ips and f ace at extraordinary value, with the majority of our items retailing for $ 6 or less. Our price points encourage trial and experimentation, while our commitment to quality and a differentiated consumer engagement model engender loyalty among a passionate and vocal group of consumers. We have built an authentic brand and a company with strong growth, margins and cash flow from operations.

We believe our success is rooted in our innovation process and ability to build direct consumer relationships. Born as an e-commerce company over a decade ago, we have created a modern consumer engagement and responsive innovation model that keeps our products on-trend and our consumers engaged as brand ambassadors. Our consumers provide us with real-time feedback through reviews and social media, which enables us to refine and augment our product portfolio in response to their needs. We leverage our fast-cycle product development and asset-light supply chain to launch high-quality products in as few as 20 weeks from concept, and 27 weeks on average. Our products are first launched on elfcosmetics.com, and distribution is generally only broadened to our retail customers after we receive strong consumer validation online. We believe this has led to our consistently strong retail sales per linear foot of shelf space, which we refer to as “productivity.” We are one of the fastest growing cosmetics brands at Target, Walmart and CVS.

Our brand appeals to some of the most sought after consumers in the category. We believe the combination of our affordable price points and on-trend, innovative product assortment encourages trial, offers a strong value proposition and appeals to a broad base of consumers. Relative to the overall cosmetics category, our brand over-indexes with Millennials, multi-cultural consumers and some of the heaviest users in the category. This attractive and loyal consumer base supports high sales per linear foot and higher category sales for our retail customers. By combining our strong relationships with leading retailers with integrated consumer engagement across our e.l.f. stores, e-commerce and social media, we are a true multi-channel brand.

Our net sales growth in the United States over the last three years was 20 times that of the mass cosmetics category on average. Our net sales still only represented 2.3% of the $ 8 billion U.S. mass cosmetics category in 2015. Our net sales grew from $ 144.9 million in the Unaudited Pro Forma Combined 2014 Period (as defined in “Management’s discussion and analysis of financial condition and results of operations”) to $ 191.4 million in the year ended December 31, 2015, and, over the same period, our Adjusted EBITDA grew from $ 28.1 million to $ 46.2 million, representing an increase of 32% and 64%, respectively. Over the same period, net income grew from an unaudited pro forma combined net loss of $ 2.9 million to a net profit of $ 4.4 million. In 2015, our Adjusted EBITDA margin was 24% and our net income margin was 2%. 1

 

LOGO

 

1     Adjusted EBITDA and Adjusted EBITDA margin are not measurements of financial performance under generally accepted accounting principles in the United States (“GAAP”). See “Summary consolidated financial data” for a discussion of Adjusted EBITDA, Adjusted EBITDA margin and their respective limitations and reconciliations to GAAP measures.

 

 

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The cosmetics industry is large and attractive

We believe that the cosmetics category is highly attractive given its scale, growth dynamics and consumer demand trends. The U.S. and global cosmetics markets generated $ 14 billion and $ 57 billion, respectively, of retail sales in 2015. The cosmetics category primarily consists of face makeup, eye makeup, lip products, nail products and cosmetics sets/kits and excludes beauty tools and accessories such as brushes and applicators. The cosmetics category has experienced strong growth both in the United States and globally. In the United States, retail sales increased from $ 11 billion in 2010 to $ 14 billion in 2015, representing a compound annual growth rate (“CAGR”) of 5% with each product category driving growth. Globally, retail sales increased from $ 43 billion in 2010 to $ 57 billion in 2015, representing a CAGR of 5%. Drivers of growth include innovation and new product launches, which span from new formulations that enhance performance, feel and fragrance, to new colors, delivery forms and packaging.

In the United States, the cosmetics category traditionally has been separated into two discrete segments—prestige and mass. Prestige products, which accounted for 42% of U.S. cosmetics retail sales in 2015, are characterized by higher price points and are typically sold in department stores and in high-end specialty stores such as Sephora. They have historically been at the forefront of quality and innovation in the category but remain too expensive for many consumers in the United States, where the average disposable personal income is less than $ 15,000. Mass products, which generated 58% of 2015 U.S. cosmetics retail sales, are more affordable than their prestige counterparts but generally have not delivered the same level of quality or innovation. They are more broadly available than prestige products given their presence in the food, drug and mass (“FDM”) channel. As observed in recent years, consumers are increasingly purchasing both prestige and mass cosmetics products, and consistent with many other consumer categories, are purchasing online. e-commerce accounted for 10% of U.S. cosmetics retail sales in 2015 and grew at three times the rate of the broader category from 2010 to 2015.

We believe that a paradigm shift has occurred in cosmetics: today’s cosmetics consumer is increasingly connected and informed, and purchasing decisions are often influenced by friends, beauty bloggers, social media and other online content. These sources provide consumers easy access to a breadth and depth of information formerly only available from beauty experts in assisted sales environments.

While most women regularly use cosmetics, the heaviest purchasers drive the category. These consumers represent 36% of cosmetics purchasers, yet accounted for 54% of U.S. cosmetics sales in 2014. For these women, cosmetics is a passion. They enjoy learning about and trying new products, and shopping for and wearing makeup. The entire experience is fun and an integral part of their lifestyle. We seek to fulfill their needs by delighting them with the quality and innovation they desire at prices they can afford.

Our strategic differentiation: how e.l.f. helps women to play beautifully

We are driven by what today’s consumer wants—an assortment of high-quality, prestige-inspired cosmetics at extraordinary value. We do not define ourselves as strictly mass or prestige, or limit our product availability to select channels. Through our modern consumer engagement and responsive innovation model, we interact with our consumers instead of broadcasting at them. This allows us to stay in tune with their needs and build trust and loyalty. Our business model has multiple areas of competitive advantage:

Authentic brand that attracts some of the best consumers in the category.     e.l.f. was founded to fill the gap between high-priced prestige beauty products and less innovative mass products. For over a decade, we have prioritized getting to know our consumers, and they in turn have provided us with valuable feedback, enabling us to address this gap and build e.l.f. into an authentic and trusted brand. By providing a comprehensive experience—from integrated engagement online, through social media and in our stores to our differentiated product offerings—we have drawn a strong following among the most sought after and heaviest users of cosmetic products. We also have strong appeal with Millennials and Hispanics, two of the fastest growing demographic groups in the United States. Our consumers have also been our best advocates, growing the e.l.f. brand virally through strong word of mouth.

High-quality cosmetics at an extraordinary value enabled by flexible, asset-light operations.     e.l.f. consumers recognize our ability to provide a broad assortment of high-quality products at an extraordinary value. The majority of our items retail for $ 6 or less, providing a low-risk way for consumers to try new products. Examples of our high-quality and extraordinary value innovations include e.l.f. Mineral Infused Face Primer at $ 6 versus a prestige primer at $ 36, e.l.f. Baked Eyeshadow Trio at $ 4 versus a competitive baked eyeshadow trio at $ 28 and e.l.f. Lip Exfoliator at $ 3 versus a similar type of lip

 

 

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treatment at $ 24. Our low price points are supported by our ability to source low cost, high-quality cosmetics quickly. As of August 2016, we had 48 e.l.f. professionals involved in sourcing, quality and innovation. We have longtime relationships with strategic vendors that pair a strong quality orientation with the ability to execute rapidly. Our supply chain is built for growth with asset-light operations, ample capacity and low capital requirements. This capability and commitment to an agile supply chain allows us to introduce a stream of on-trend innovation. Our consumers’ love of our high-quality, innovative products is shown through the online reviews posted on elfcosmetics.com, where 66% of 2015 reviews were five stars, the highest rating.

Fast-cycle innovation and validation model.     We believe innovation is key to our success and that we are a leader in the industry in speed and new product introductions. We have built an innovation capability that can progress a new, high-quality e.l.f. product to online launch in as few as 20 weeks from concept, and 27 weeks on average. In 2015, we introduced over 50 new items across eyes, lips, face, tools, kits and skin care, and 40% of our retail sales came from products launched in the last three years (based on data from Nielsen). With 25 million visits per year and over 100,000 online reviews, elfcosmetics.com is a vehicle for refining products and determining best sellers. We are able to analyze sales results, reviews and feedback through social media to provide a quick indication of a product’s performance. Not only does this fast, high-output, testing methodology result in leading performance in retail, it also contributes to building our consumer relationships. We believe our active dialogue with our consumers provides us with a highly differentiated perspective on innovation and informs the continuous launch, validation and refinement of our products.

True multi-channel brand blurs the lines between mass and prestige.     We are a true multi-channel brand with strength across e-commerce, national retailers and our e.l.f. stores. Our ability to engage our consumers across multiple touch points differentiates e.l.f. from traditional mass brands, which typically focus on one channel. We also leverage insights gained from each channel to drive performance across the business.

 

  e-commerce .     elfcosmetics.com has the highest revenue, traffic, time spent on-site and units per transaction of any mass cosmetics brand website based on data from the Internet Retailer eCommerce 500 report and Alexa Internet Inc. Our e-commerce business serves as a strong source of sales and an important component of our engagement and innovation model. We have nurtured a loyal, highly active online community for over a decade.

 

  National retailers .     We currently sell our products in approximately 19,000 retail stores in the United States across mass, drug store, food and specialty retail channels. At Target, our longest-standing national retail customer and a key beauty destination for many consumers, we achieved double digit growth in retail sales from 2014 to 2015. We have also continued to expand with Walmart, the world’s largest retailer and an e.l.f. customer since 2012. We introduced e.l.f. at Old Navy in 2014 and at CVS in 2015 and expect to continue to grow distribution due to our compelling retailer value proposition.

 

  e.l.f. stores.     We were the first mass cosmetics brand with our own stores, which we believe serve as one of our most effective and efficient vehicles for marketing and consumer engagement. e.l.f. stores showcase a broad assortment of e.l.f. products, create an environment dedicated to play beautifully , and allow us to test and validate new products. As of August 2016, we had nine e.l.f. stores in the New York metro area located in high-traffic malls and urban areas.

High-performance team and culture.     Our CEO Tarang Amin joined us in January 2014, and under his leadership we have assembled a world-class management team that possesses an excellent track record of results and has successfully worked together for many years. During the team’s prior tenure at Schiff Nutrition International, Inc. (New York Stock Exchange: SHF) (“Schiff Nutrition”), the company grew in enterprise value from $ 190 million to $ 1.5 billion in less than two years and was acquired by Reckitt Benckiser (London Stock Exchange: RB). With strong backgrounds from The Clorox Company, The Procter & Gamble Company, L’Oreal S.A., Mary Kay Inc., TPG Global, LLC (together with its affiliates, “TPG”) and other leading companies, our team has demonstrated skills in building brands, leading innovation, expanding distribution, making acquisitions and driving world-class operations. We operate with a high-performance team culture. We communicate with great candor and transparency in the spirit of helping the team succeed, make quick decisions and drive executional excellence. The combination of a talented team, strong culture and values and disciplined execution forms the foundation of our success.

 

 

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The e.l.f. growth strategy

We believe e.l.f. is one of the most disruptive brands in the cosmetics industry. We are in the early stages of development, with significant room to grow by converting more consumers to the brand, making e.l.f. products more widely available and offering more innovative products to our consumers. We expect the United States to be the largest source of our growth over the next few years and also see an opportunity to expand in select international markets. We also believe we have an opportunity to improve our margins through greater operating leverage and efficiency.

We have made substantial investments over the last two years and believe we are well positioned for continued growth driven by four strategies.

 

1.   Build a great brand

Draw new consumers to the brand.     We have a loyal consumer following, as illustrated by our repeat purchase rates which are among the highest in the industry: 58% of our consumers purchase one or more additional products within 12 months of initial purchase. We believe we can significantly grow this following of passionate consumers from current levels. Increasing brand awareness is a major growth driver for our company, as it has historically led to strong trial and high repeat purchase rates. e.l.f. is still unknown to many women, with only 6% unaided and 58% aided awareness as of August 2015. In contrast, many traditional brands have unaided awareness close to 40% and aided awareness close to 100%. We plan to continue to drive awareness and draw consumers to the brand.

Encourage current consumers to use more e.l.f. products.     Our consumers’ loyalty to the e.l.f. brand drives growth through increased usage of our products across categories and advocacy of our brand to other potential consumers. Many of our consumers regularly visit elfcosmetics.com, where in 2015 they bought over nine units per transaction on average. We have designed our product assortment to encourage cross-category purchases across eyes, lips, face, tools and skin care. We find that consumers often enter the brand through one of our lower priced items and then purchase other e.l.f. products across categories once they understand our extraordinary value proposition. Our consumers also seek out our innovation, buying new products both online and in stores. We believe that through sustained innovation and efficient marketing, we will increase the number of e.l.f. items our consumers purchase.

 

2.   Lead innovation

Use innovation to drive sales and margin .    We have a track record of bringing prestige-inspired innovation quickly to the mass channel. We expect to continue to leverage our rapid innovation and flexible supply chain to introduce new products across the eyes, lips, face and tools categories. We believe our innovation has also led consumers to purchase products at higher price points while still delivering an extraordinary value. Many consumers who first tried a $ 1 item have now migrated to $ 3 to $ 8 items, which often have higher margins than our less expensive products.

Expand into skin care and relevant adjacencies .    We have successfully brought a prestige-like approach to mass cosmetics at extraordinary value. We believe there are opportunities to use this same approach in other beauty categories, leveraging our brand equity and relationship with e.l.f. enthusiasts to extend our brand into adjacent segments. One such category is skin care, which generated $ 16 billion in retail sales in the United States and $ 110 billion globally in 2015. We recently introduced a high-quality skin care line retailing for just $ 4 to $ 12 per product, a fraction of the price of prestige brands. We plan to capitalize on our innovation expertise to develop new products in other adjacent categories.

 

3.   Expand brand penetration

Grow space allocation with our existing national retailers.     We have significant potential upside in deepening distribution with our existing retailers by continuing to leverage our productivity, innovation and growth to win more shelf space. Even at our largest customers, e.l.f. is currently in less than 6% of the space allocated to cosmetics despite having among the highest productivity in the category. While certain legacy cosmetics brands have an average of 15 to 18 feet of inline space in major retailers, e.l.f.’s average is only five feet. We believe that our strong performance will enable our shelf presence in our current retailers to become larger over time.

Increase number of new customers.     We are one of the fastest growing cosmetics brands at Target, Walmart and CVS, and our growth rates and productivity are among the highest in the industry. We have major distribution whitespace, as

 

 

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we are currently in only approximately 19,000 national retail stores in the United States and believe there are thousands of additional stores available to us.

Grow our direct-to-consumer business.     We plan to continue to grow elfcosmetics.com by driving traffic and conversion. In addition, our e.l.f. stores have been highly productive and profitable. As of August 2016, we operated nine stores in the New York metro area and we plan to selectively open more e.l.f. stores nationally in high-traffic areas.

Expand internationally.     We operate in a number of countries outside the United States, which accounted for 7% of our net sales in 2015. Given the portability of the e.l.f. brand, we believe that we have a significant opportunity in international markets over the long term.

 

4.   Drive world-class operations

Leverage high-performance team culture and execution capability .    We have made significant investments in our business over the past two years by hiring top talent and building functional capabilities. Our management team comes from leading consumer packaged goods companies and has experience implementing growth strategies and driving operational improvements. We believe what differentiates us from many traditional cosmetics companies is our ability to make fast decisions and execute with excellence. We believe we have a major speed-to-market advantage over many other companies and are highly responsive to retail customer and consumer needs. We will continue to leverage our executional excellence as we seek to become the preferred partner of our key customers.

Drive operating margins and efficiencies .    We have built a low-cost, quality-oriented supply chain with ample capacity to support future growth. We intend to grow our margins by pursuing additional cost savings opportunities and enhancing our product mix through innovation. We also expect to benefit from operating leverage as we scale the business.

Risks associated with our business

Investing in our stock involves a high degree of risk. You should carefully consider the risks described in “Risk factors” before making a decision to invest in our common stock. If any of these risks actually occurs, our business, financial condition and results of operations would likely be materially adversely affected. In such case, the trading price of our common stock would likely decline and you may lose part or all of your investment. Below is a summary of some of the principal risks we face:

 

  The cosmetics industry is highly competitive, and if we are unable to compete effectively our results will suffer.

 

  Our new product introductions may not be as successful as we anticipate.

 

  We depend on a limited number of retailers for a large portion of our net sales, and the loss of one or more of these retailers, or business challenges at one or more of these retailers, could adversely affect our results of operations.

 

  Our success depends, in part, on the quality, performance and safety of our products.

 

  We may not be able to successfully implement our growth strategy.

 

  Our growth and profitability are dependent on trends that may change or not continue, and our historical growth may not be indicative of our future growth.

 

  We may be unable to manage our growth effectively, which would harm our business, financial condition and results of operations.

 

  Any damage to our reputation or brand may materially and adversely affect our business, financial condition and results of operations.

 

  A disruption in our operations could materially and adversely affect our business.

 

  We are dependent on third-party suppliers, manufacturers, distributors and other vendors.

 

  We may not be able to adequately protect intellectual property and other proprietary rights in our products and may be subject to claims that we infringe or misappropriate the rights of others.

 

 

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  We have significant operations in China, which exposes us to risks inherent in doing business there.

 

  We will not be required to comply with certain provisions of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) for as long as we remain an “emerging growth company.”

Implications of being an emerging growth company

We qualify as an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”). As a result, we are permitted to, and intend to, rely on exemptions from certain disclosure requirements that are applicable to other companies that are not emerging growth companies. Accordingly, we have included compensation information for only our four most highly compensated executive officers and have not included a compensation discussion and analysis of our executive compensation programs in this prospectus. In addition, for so long as we are an emerging growth company, we will not be required to:

 

  engage an independent registered public accounting firm to report on our internal controls over financial reporting pursuant to Section 404(b) of the Sarbanes-Oxley Act;

 

  comply with any requirement that may be adopted by the Public Company Accounting Oversight Board (the “PCAOB”) regarding mandatory audit firm rotation or a supplement to the independent registered public accounting firm’s report providing additional information about the audit and the financial statements (i.e., an auditor discussion and analysis);

 

  submit certain executive compensation matters to stockholder advisory votes, such as “say-on-pay,” “say-on-frequency” and “say-on-golden parachutes;” or

 

  disclose certain executive compensation related items such as the correlation between executive compensation and performance and comparisons of the chief executive officer’s compensation to median employee compensation.

We will remain an emerging growth company until the earliest to occur of:

 

  our reporting of $ 1.0 billion or more in annual gross revenue;

 

  our issuance, in any three-year period, of more than $ 1.0 billion in non-convertible debt;

 

  our becoming a “large accelerated filer;” and

 

  the end of fiscal 2021.

The JOBS Act permits an emerging growth company such as us to take advantage of an extended transition period to comply with new or revised accounting standards applicable to public companies. We are choosing to “opt out” of this provision, and, as a result, we will comply with new or revised accounting standards as required when they are adopted. This decision to opt out of the extended transition period under the JOBS Act is irrevocable.

Our sponsor

TPG Growth II Management, LLC (“TPG Growth” or our “Sponsor”) has been our principal financial backer since its acquisition of the Company in January 2014. TPG Growth is the middle market and growth equity investment platform of TPG, a leading global private investment firm founded in 1992 with over $ 73 billion of assets under management as of March 31, 2016. With more than $ 7 billion in assets under management and committed capital, TPG Growth targets investments in a broad range of industries and geographies, with a significant focus on the United States and large, emerging markets such as China, India, Brazil, Turkey, Africa and Southeast Asia.

Our corporate information

We were incorporated in Delaware on December 20, 2013 under the name J.A. Cosmetics Holdings, Inc. In April 2016, we changed our name to e.l.f. Beauty, Inc. Our principal offices are located at 570 10 th Street, Oakland, California 94607. Our telephone number is (510) 778-7787. We maintain a website at www.elfcosmetics.com. The reference to our website is intended to be an inactive textual reference only. The information contained on, or that can be accessed through, our website is not part of this prospectus.

 

 

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The offering

 

Issuer

e.l.f. Beauty, Inc.

 

Common stock offered by us

         shares.

 

Common stock offered by the selling stockholders

         shares.

 

Common stock to be outstanding after this offering

         shares.

 

Underwriters’ option to purchase additional shares

         shares.

 

Use of proceeds

We estimate that the net proceeds from the sale of shares of common stock in this offering by us will be approximately $          million, or approximately $          million if the underwriters exercise their option to purchase additional shares in full, at an assumed initial public offering price of $          per share (the mid-point of the price range set forth on the cover page of this prospectus), after deducting the underwriting discounts and commissions and estimated offering expenses payable by us.

 

  We currently expect to use the net proceeds from the sale of shares of common stock in this offering by us to repay existing indebtedness and any proceeds remaining thereafter will be used for working capital and general corporate purposes. See “Use of proceeds” on page 41 for a more complete description of the intended use of proceeds from this offering. We will not receive any of the proceeds from the sale of shares by the selling stockholders.

 

Directed share program

At our request, the underwriters have reserved up to 5% of the shares of common stock offered by this prospectus for sale, at the initial public offering price, to our directors, officers and other individuals associated with them, and our employees, to the extent permitted by local securities laws and regulations. The sales will be made at our direction by Morgan Stanley & Co. LLC, an underwriter of this offering, and its affiliates through a directed share program. We do not know if these persons will choose to purchase all or any portion of these reserved shares, but any purchases they do make will reduce the number of shares available to the general public. Any reserved shares not so purchased will be offered by the underwriters to the general public on the same terms as the other shares of common stock offered by this prospectus. Any shares sold in the directed share program to our directors, executive officers or stockholders who have entered into lock-up agreements described in “Underwriting” shall be subject to the provisions of such lock-up agreements. Other participants in the directed share program shall be subject to substantially similar lock-up provisions with respect to any shares sold to them pursuant to the directed share program.

 

Risk factors

Investing in shares of our common stock involves a high degree of risk. See “Risk factors” beginning on page 12 of this prospectus for a discussion of factors you should carefully consider before investing in shares of our common stock.

 

Trading symbol

“ELF.”

In this prospectus, the number of shares of our common stock to be outstanding after this offering is based on the number of shares of our common stock outstanding as of June 30, 2016, and excludes:

 

  1,737,763 shares of common stock issuable upon exercise of stock options outstanding as of June 30, 2016 under our 2014 Equity Incentive Plan (the “2014 Equity Plan”) at a weighted average exercise price of $ 5.55 per share (as adjusted for the special dividend declared on June 7, 2016 as described under “Dividend policy”);

 

 

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  573,729 shares of common stock reserved as of June 30, 2016 for future issuance under our 2014 Equity Plan;

 

           shares of common stock reserved for issuance pursuant to future awards under our 2016 Equity Incentive Award Plan (the “2016 Plan”), as well as any automatic increases in the number of shares of our common stock reserved for future issuance under this plan, which will become effective immediately prior to the consummation of this offering; and

 

           shares of common stock reserved for issuance pursuant to future awards under our 2016 Employee Stock Purchase Plan (the “ESPP”), as well as any automatic increases in the number of shares of our common stock reserved for future issuance under this plan, which will become effective immediately prior to the consummation of this offering.

Unless otherwise indicated, this prospectus reflects and assumes:

 

  the conversion of all of our outstanding shares of convertible preferred stock as of June 30, 2016 into an aggregate of 13,504,123.5 shares of common stock immediately prior to the consummation of this offering;

 

  the filing of our amended and restated certificate of incorporation and the adoption of our amended and restated bylaws, which will occur immediately prior to the consummation of this offering;

 

  no exercise by the underwriters of their over-allotment option to purchase additional shares of common stock;

 

  a     -for-     forward stock split of our common stock to be effected prior to the effectiveness of the registration statement of which this prospectus forms a part; and

 

  no exercise of outstanding options after June 30, 2016.

 

 

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Summary consolidated financial data

The following table presents our summary consolidated financial data for the periods and as of the dates indicated. The periods prior to and including January 31, 2014 include all of the accounts of e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.) and its subsidiaries and are referred to in the following table as “Predecessor,” and all periods after January 31, 2014 include all of the accounts of e.l.f. Beauty, Inc. and its subsidiaries and are referred to in the following table as “Successor.” The summary consolidated financial data as of December 31, 2014 and 2015, and for the period from January 1, 2014 through January 31, 2014, the period from February 1, 2014 through December 31, 2014 and the year ended December 31, 2015, has been derived from the audited consolidated financial statements included elsewhere in this prospectus. The summary consolidated financial data as of June 30, 2016, and for the six months ended June 30, 2015 and 2016, has been derived from the unaudited condensed consolidated financial statements included elsewhere in this prospectus. Our unaudited condensed consolidated financial statements were prepared on a basis consistent with our audited consolidated financial statements and include, in management’s opinion, all normal recurring adjustments necessary for fair presentation of the financial information set forth in those statements. The summary consolidated financial data for the years ended December 31, 2012 and 2013 have been derived from the Predecessor’s audited consolidated financial statements which are not included in this prospectus and is presented in order to provide a reconciliation from net income to Adjusted EBITDA for these periods.

You should read the following financial information together with the information under “Capitalization,” “Selected consolidated financial data” and “Management’s discussion and analysis of financial condition and results of operations” and our consolidated financial statements and the related notes included elsewhere in this prospectus.

 

     Predecessor     Successor     Unaudited
pro forma
combined(1)
    Successor  
(dollars in thousands, except share
and per share amounts)
  Period from
January 1,
2014
through
January 31,
2014
    Period from
February 1,
2014
through
December 31,
2014
    Year ended
December 31,
2014
    Year ended
December 31,
2015
    Six
months
ended
June 30,
2015
    Six
months
ended
June 30,
2016
 
 

Statement of operations data:

             

Net sales

  $ 9,810      $ 135,134      $ 144,944      $ 191,413      $ 75,194      $ 96,820   

Gross profit

    4,772        61,450        67,496        100,329        39,298        54,437   

Operating income

    1,727        5,347        16,119        25,571        8,130        6,633   

Other income (expense), net

    36        (6,633     (6,597     (4,172     3,254        1,964   

Interest expense

    (128     (11,545     (12,546     (12,721     (6,281     (6,396

Income (loss) before provision for income taxes

    1,635        (12,831     (3,024     8,678        5,103        2,201   

(Provision) benefit for income taxes

    (542     3,545        143        (4,321     (2,425     (1,112

Net income (loss)

  $ 1,093      $ (9,286   $ (2,881   $ 4,357      $ 2,678      $ 1,089   

Net income (loss) per share—basic

  $ 1,093      $ (1,957   $ (1,413   $ (4,304   $ (320   $ (553

Net income (loss) per share—diluted

  $ 1,088      $ (1,957   $ (1,413   $ (4,304   $ (320   $ (553

Weighted average number of shares outstanding—basic

    1,000        10,000        10,000        11,062        10,000        235,967   

Weighted average number of shares outstanding—diluted

    1,005        10,000        10,000        11,062        10,000        235,967   
 

Other data:

             

EBITDA(2)

    1,804        6,658        18,190        31,688        15,980        14,827   

Adjusted EBITDA(2)

    2,087        26,013        28,100        46,178        16,300        19,964   

Adjusted EBITDA margin

    21.3%        19.2%        19.4%        24.1%        21.7%        20.6%   

Depreciation and amortization

    41        7,944        8,668        10,289        4,595        6,230   

Capital expenditures

    19        1,597        1,616        10,242        3,649        2,910   

 

 

 

(1)   For the purpose of performing a comparison to the Successor’s year ended December 31, 2015, we have prepared Unaudited Pro Forma Combined Supplemental Financial Information for the year ended December 31, 2014, which gives effect to the acquisition of 100% of the outstanding shares of capital stock of the Predecessor by the Successor, as if it had occurred on January 1, 2014 (the “Unaudited Pro Forma Combined 2014 Period”). The Unaudited Pro Forma Combined 2014 Period is being discussed herein for informational purposes only and does not reflect any operating efficiencies or potential cost savings that may result from the consolidation of operations. The amounts in the Predecessor and Successor columns do not total to the amounts in the unaudited pro forma combined column due to the adjustments made in preparing the Unaudited Pro Forma Combined 2014 Period, which are described in “Management’s discussion and analysis of financial conditions and results of operations—Recent transactions and basis of presentation.”

 

 

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(2)   EBITDA represents net income (loss) plus interest expense, provision (benefit) for income taxes and depreciation and amortization. Adjusted EBITDA represents EBITDA further adjusted to exclude the impact of other items that management does not believe are reflective of the Company’s ongoing operations (comprising transaction-related expenses incurred in connection with the acquisition of the Predecessor, the restructuring of our operations, including warehouse transition and reorganization of our operations in China, and the preparation for our initial public offering), stock-based compensation expense, management fees paid to our Sponsor, costs associated with e.l.f. stores incurred prior to the store opening (including legal-related costs, rent and occupancy expenses, marketing and other store operating supply expenses), costs associated with securing additional distribution space (including slotting expense, freight and certain costs related to installation of fixtures), costs related to the evaluation of an acquisition in 2014, certain non-cash losses and write-offs, and gains and losses on our foreign currency contracts as reflected in the reconciliation below.

We present EBITDA and Adjusted EBITDA because our management uses these as supplemental measures in assessing our operating performance, and we believe they are helpful to investors, securities analysts and other interested parties in evaluating the performance of companies in our industry. We also believe EBITDA and Adjusted EBITDA are useful to management and investors, securities analysts and other interested parties as measures of our comparative operating performance from period to period. EBITDA and Adjusted EBITDA are not measurements of financial performance under GAAP. They should not be considered as alternatives to cash flow from operating activities, as measures of liquidity, or as alternatives to net income as a measure of our operating performance or any other measures of performance derived in accordance with GAAP. In addition, EBITDA and Adjusted EBITDA should not be construed as an inference that our future results will be unaffected by unusual or non-recurring items. EBITDA and Adjusted EBITDA have limitations as analytical tools, and you should not consider such measures either in isolation or as substitutes for analyzing our results as reported under GAAP. Our definitions and calculations of EBITDA and Adjusted EBITDA are not necessarily comparable to other similarly titled measures used by other companies due to different methods of calculation.

The following table provides a reconciliation of EBITDA and Adjusted EBITDA to net income (loss):

 

     Predecessor            Successor     Unaudited
pro forma
combined
    Successor  
(dollars in thousands)   Year ended
December 31,
2012
    Year ended
December 31,
2013
    Period from
January 1,
2014
through
January 31,
2014
           Period from
February 1,
2014
through
December 31,
2014
    Year ended
December 31,
2014
    Year ended
December 31,
2015
    Six
months
ended
June 30,
2015
    Six
months
ended
June 30,
2016
 

Net income (loss)

  $ 9,897      $ 16,555      $ 1,093          $ (9,286   $ (2,881   $ 4,357      $ 2,678      $ 1,089   

Interest expense

    610        1,637        128            11,545        12,546        12,721        6,281        6,396   

Provision (benefit) for income taxes

    6,275        9,211        542            (3,545     (143     4,321        2,425        1,112   

Depreciation and amortization

    395        538        41            7,944        8,668        10,289        4,595        6,230   
 

 

 

       

 

 

 

EBITDA

  $ 17,177      $ 27,941      $ 1,804          $ 6,658      $ 18,190      $ 31,688      $ 15,980      $ 14,827   

Transaction-related expenses(a)

           194        63            9,759        94        705        579          

Cost related to “restructuring” of operations(b)

                             370        370        1,595        420        3,844   

Initial public offering preparation costs

                                           1,144        318        395   

Stock-based compensation

           26                   287        287        503        197        1,155   

Management fee(c)

    233        250                   775        775        854        350        475   

Pre-opening costs(d)

           118        15            180        195        64        59        229   

Customer expansion costs(e)

                                           1,191        879        350   

Other miscellaneous items(f)

                             1,104        1,104        530                 

Unrealized losses (gains) on foreign currency contracts(g)

                  205            6,880        7,085        7,904        (2,482     (1,311
 

 

 

       

 

 

 

Adjusted EBITDA

  $ 17,410      $ 28,529      $ 2,087          $ 26,013      $ 28,100      $ 46,178      $ 16,300      $ 19,964   
                                                                         

 

  (a)   Represents transaction-related expenses related to the acquisition of the Predecessor.

 

  (b)   Represents costs associated with the restructuring of our operations, including warehouse transition and reorganization of our operations in China.

 

  (c)   Represents management fees paid to our Sponsor.

 

  (d)   Represents costs associated with e.l.f. stores incurred prior to the store opening, including legal-related costs, rent and occupancy expenses, marketing and other store operating supply expenses.

 

 

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  (e)   Represents costs associated with securing additional distribution space, including slotting expense, freight and certain costs related to installation of fixtures.

 

  (f)   Represents costs related to evaluation of an acquisition in 2014 as well as other non-cash losses and write-offs.

 

  (g)   Represents non-cash (gains) / losses on our foreign currency contracts.

 

      Successor  
     As of December 31,     As of June 30,  
(dollars in thousands)    2014     2015     2016  

Balance sheet data:

      

Cash and cash equivalents

   $ 4,668      $ 14,004      $ 3,763   

Net working capital(3)

     23,218        10,860        16,007   

Property and equipment, net

     2,125        9,854        14,281   

Total assets

     354,178        361,072        358,989   

Total bank debt, including current maturities(4)

     148,424        144,919        203,657   

Total liabilities

     222,656        224,175        295,389   

Convertible preferred stock

     145,328        197,295        262,385   

Total stockholders’ deficit

     (13,806     (60,398     (198,785

 

 

 

(3)   Net working capital is defined as current assets, excluding cash and cash equivalents, minus current liabilities.

 

(4)   Total bank debt, including current maturities, is net of $ 4.3 million, $ 3.2 million and $ 2.7 million of debt issuance costs as of December 31, 2014, December 31, 2015 and June 30, 2016, respectively.

 

 

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Risk factors

Investing in our common stock involves a high degree of risk. You should carefully consider each of the following risk factors, as well as the other information in this prospectus, including our consolidated financial statements and the related notes, before deciding whether to invest in shares of our common stock. If any of the following risks actually occurs, our business, results of operations and financial condition may be materially and adversely affected. In that event, the trading price of our common stock could decline and you could lose all or part of your investment. Please also see the “Special note regarding forward-looking statements.”

Risks related to our business

The cosmetics industry is highly competitive, and if we are unable to compete effectively our results will suffer.

We face vigorous competition from companies throughout the world, including large multinational consumer products companies that have many cosmetics brands under ownership and standalone cosmetics brands, including those that may target the latest trends or specific distribution channels. Competition in the cosmetics industry is based on the introduction of new products, pricing of products, quality of products and packaging, brand awareness, perceived value and quality, innovation, in-store presence and visibility, promotional activities, advertising, editorials, e-commerce and mobile-commerce initiatives and other activities. We must compete with a high volume of new product introductions and existing products by diverse companies across several different distribution channels.

Many multinational consumer companies have greater financial, technical or marketing resources, longer operating histories, greater brand recognition or larger customer bases than we do and may be able to respond more effectively to changing business and economic conditions than we can. Many of these competitors’ products are sold in a wider selection or greater number of retail stores and possess a larger presence in these stores, typically having significantly more inline shelf space than we do. Given the finite space allocated to cosmetic products by retail stores, our ability to grow the number of retail stores in which our products are sold, and expand our space allocation once in these retail stores, may require the removal or reduction of the shelf space of these competitors. We may be unsuccessful in our growth strategy in the event retailers do not reallocate shelf space from our competitors to us. Our competitors may attempt to gain market share by offering products at prices at or below the prices at which our products are typically offered, including through the use of large percentage discounts and “buy one and get one free” offers. Competitive pricing may require us to reduce our prices, which would decrease our profitability or result in lost sales. Our competitors, many of whom have greater resources than we do, may be better able to withstand these price reductions and lost sales.

It is difficult for us to predict the timing and scale of our competitors’ activities in these areas or whether new competitors will emerge in the cosmetics business. In addition, further technological breakthroughs, including new and enhanced technologies which increase competition in the online retail market, new product offerings by competitors and the strength and success of our competitors’ marketing programs may impede our growth and the implementation of our business strategy.

Our ability to compete also depends on the continued strength of our brand and products, the success of our marketing, innovation and execution strategies, the continued diversity of our product offerings, the successful management of new product introductions and innovations, strong operational execution, including in order fulfillment, and our success in entering new markets and expanding our business in existing geographies. If we are unable to continue to compete effectively, it could have a material adverse effect on our business, results of operations and financial condition.

Our new product introductions may not be as successful as we anticipate.

The cosmetics industry is driven in part by fashion and beauty trends, which may shift quickly. Our continued success depends on our ability to anticipate, gauge and react in a timely and cost-effective manner to changes in consumer preferences for cosmetic products, consumer attitudes toward our industry and brand and where and how consumers shop for those products. We must continually work to develop, produce and market new products, maintain and enhance the recognition of our brand, maintain a favorable mix of products and develop our approach as to how and where we market and sell our products.

We have an established process for the development, evaluation and validation of our new product concepts. Nonetheless, each new product launch online, through our e.l.f. stores and through our retail customers involves risks, as well as the possibility of unexpected consequences. For example, the acceptance of new product launches and sales to our retail

 

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customers may not be as high as we anticipate, due to lack of acceptance of the products themselves or their price, or limited effectiveness of our marketing strategies. In addition, our ability to launch new products may be limited by delays or difficulties affecting the ability of our suppliers or manufacturers to timely manufacture, distribute and ship new products or displays for new products. Sales of new products may be affected by inventory management by our retail customers, and we may experience product shortages or limitations in retail display space by our retail customers. We may also experience a decrease in sales of certain existing products as a result of newly-launched products, the impact of which could be exacerbated by shelf space limitations or any shelf space loss. Any of these occurrences could delay or impede our ability to achieve our sales objectives, which could have a material adverse effect on our business, financial condition and results of operations.

As part of our ongoing business strategy we expect we will need to continue to introduce new products in our traditional product categories of eyes, lips, face and tools, while also expanding our product launches into adjacent categories in which we may have little to no operating experience. For example, we recently introduced a high-quality skin care assortment. The success of product launches in adjacent product categories could be hampered by our relative inexperience operating in such categories, the strength of our competitors or any of the other risks referred to above. Furthermore, any expansion into new product categories may prove to be an operational and financial constraint which inhibits our ability to successfully accomplish such expansion. Our inability to introduce successful products in our traditional categories or in adjacent categories could limit our future growth and have a material adverse effect on our business, financial condition and results of operations.

We depend on a limited number of retailers for a large portion of our net sales, and the loss of one or more of these retailers, or business challenges at one or more of these retailers, could adversely affect our results of operations.

A limited number of our retail customers account for a large percentage of our net sales. Target and Walmart accounted for 28% and 23%, respectively, of our net sales in 2015. We expect Target, Walmart and a small number of other retailers will, in the aggregate, continue to account for the majority of our net sales for foreseeable future periods. Any changes in the policies or our ability to meet the demands of our retail customers relating to service levels, inventory de-stocking, pricing and promotional strategies or limitations on access to display space could have a material adverse effect on our business, financial condition and results of operations.

As is typical in our industry, our business with retailers is based primarily upon discrete sales orders, and we do not have contracts requiring retailers to make firm purchases from us. Accordingly, retailers, including Target and Walmart, could reduce their purchasing levels or cease buying products from us at any time and for any reason. If we lose a significant retail customer or if sales of our products to a significant retailer materially decrease, it could have a material adverse effect on our business, financial condition and results of operations.

Because such a high percentage of our sales are made through our retail customers, our results are subject to risks relating to the general business performance of our key retail customers. Factors that adversely affect our retail customers’ businesses may also have a material adverse effect on our business, financial condition and results of operations. These factors may include:

 

  any reduction in consumer traffic and demand at our retail customers as a result of economic downturns, changes in consumer preferences or reputational damage as a result of, among other developments, data privacy breaches, regulatory investigations or employee misconduct;

 

  any credit risks associated with the financial condition of our retail customers;

 

  the effect of consolidation or weakness in the retail industry or at certain retail customers, including store closures and the resulting uncertainty; and

 

  inventory reduction initiatives and other factors affecting retail customer buying patterns, including any reduction in retail space committed to cosmetics and retailer practices used to control inventory shrinkage.

Our success depends, in part, on the quality, performance and safety of our products.

Any loss of confidence on the part of consumers in the ingredients used in our products, whether related to product contamination or product safety or quality failures, actual or perceived, or inclusion of prohibited ingredients, could tarnish the image of our brand and could cause consumers to choose other products. Allegations of contamination or other adverse

 

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effects on product safety or suitability for use by a particular consumer, even if untrue, may require us to expend significant time and resources responding to such allegations and could, from time to time, result in a recall of a product from any or all of the markets in which the affected product was distributed. Any such issues or recalls could negatively affect our profitability and brand image.

If our products are found to be, or perceived to be, defective or unsafe, or if they otherwise fail to meet our consumers’ expectations, our relationships with consumers could suffer, the appeal of our brand could be diminished, we may need to recall some of our products and/or become subject to regulatory action, and we could lose sales or market share or become subject to boycotts or liability claims. In addition, safety or other defects in our competitors’ products could reduce consumer demand for our own products if consumers view them to be similar. Any of these outcomes could result in a material adverse effect on our business, financial condition and results of operations.

We may not be able to successfully implement our growth strategy.

Our future growth, profitability and cash flows depend upon our ability to successfully implement our business strategy, which, in turn, is dependent upon a number of factors, including our ability to:

 

  build a great brand by attracting new consumers and encouraging our current consumers to use more e.l.f. products;

 

  continue to use innovation to drive sales and margin and expand into relevant adjacencies;

 

  expand brand penetration by growing our space allocations with our existing national retail customers, increasing the number of our retail customers, growing our direct-to-consumer business and expanding internationally; and

 

  leverage our high-performance team culture and executional capability to drive operating margins and efficiencies.

There can be no assurance that we can successfully achieve any or all of the above initiatives in the manner or time period that we expect. Further, achieving these objectives will require investments which may result in short-term costs without generating any current net sales and therefore may be dilutive to our earnings. We cannot provide any assurance that we will realize, in full or in part, the anticipated benefits we expect our strategy will achieve. The failure to realize those benefits could have a material adverse effect on our business, financial condition and results of operations.

Our growth and profitability are dependent on a number of factors, and our historical growth may not be indicative of our future growth.

Although our net sales and profitability have grown rapidly from 2012 through 2015, this should not be considered as indicative of our future performance. We may not be successful in executing our growth strategy, and even if we achieve our strategic plan, we may not be able to sustain profitability. In future periods, our revenue could decline or grow more slowly than we expect. We also may incur significant losses in the future for a number of reasons, including the following risks and the other risks described in this prospectus, and we may encounter unforeseen expenses, difficulties, complications, delays and other unknown factors:

 

  we may lose one or more significant retail customers, or sales of our products through these retail customers may decrease;

 

  the ability of our third-party suppliers and manufacturers to produce our products and of our distributors to distribute our products could be disrupted;

 

  because all of our products are sourced and manufactured in China, our operations are susceptible to risks inherent in doing business there;

 

  our products may be the subject of regulatory actions, including but not limited to actions by the Food and Drug Administration (the “FDA”), the Federal Trade Commission (the “FTC”) and the Consumer Product Safety Commission (the “CPSC”) in the United States;

 

  we may be unable to introduce new products that appeal to consumers or otherwise successfully compete with our competitors in the cosmetics industry;

 

  we may be unsuccessful in enhancing the recognition and reputation of our brand, and our brand may be damaged as a result of, among other reasons, our failure, or alleged failure, to comply with applicable ethical, social, product, labor or environmental standards;

 

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  we may experience service interruptions, data corruption, cyber-based attacks or network security breaches which result in the disruption of our operating systems or the loss of confidential information of our consumers;

 

  we may be unable to retain key members of our senior management team or attract and retain other qualified personnel; and

 

  we may be affected by any adverse economic conditions in the United States or internationally.

We may be unable to manage our growth effectively, which would harm our business, financial condition and results of operations.

We have grown rapidly, with our net sales increasing from $ 82.9 million in the year ended December 31, 2012 to $ 191.4 million in the year ended December 31, 2015. Our growth has placed, and will continue to place, a strain on our management team, financial and information systems, supply chain and distribution capacity and other resources. To manage growth effectively, we must continue to enhance our operational, financial and management systems, including our warehouse management, inventory control and in-store point-of-sale systems; maintain and improve our internal controls and disclosure controls and procedures; maintain and improve our information technology systems and procedures; and expand, train and manage our employee base.

We may not be able to effectively manage this expansion in any one or more of these areas, and any failure to do so could significantly harm our business, financial condition and results of operations. Our rapid growth also makes it difficult for us to adequately predict the expenditures we will need to make in the future. If we do not make the necessary overhead expenditures to accommodate our future growth, we may not be successful in executing our growth strategy, and our results of operations would suffer.

Any damage to our reputation or brand may materially and adversely affect our business, financial condition and results of operations.

We believe that developing and maintaining our brand is critical and that our financial success is directly dependent on consumer perception of our brand. Furthermore, the importance of our brand recognition may become even greater as competitors offer more products similar to ours.

We have relatively low brand awareness among consumers when compared to other cosmetic brands, and maintaining and enhancing the recognition and reputation of our brand is critical to our business and future growth. Many factors, some of which are beyond our control, are important to maintaining our reputation and brand. These factors include our ability to comply with ethical, social, product, labor and environmental standards. Any actual or perceived failure in compliance with such standards could damage our reputation and brand.

The growth of our brand depends largely on our ability to provide a high-quality consumer experience, which in turn depends on our ability to bring innovative products to the market at competitive prices that respond to consumer demands and preferences. Additional factors affecting our consumer experience include our ability to provide appealing store sets in retail stores, the maintenance and stocking of those sets by our retail customers, the overall shopping experience provided by our retail customers, a reliable and user-friendly website interface and mobile applications for our consumers to browse and purchase products on elfcosmetics.com and an engaging environment in our e.l.f. stores. If we are unable to preserve our reputation, enhance our brand recognition or increase positive awareness of our products and in-store and Internet platforms, it may be difficult for us to maintain and grow our consumer base, and our business, financial condition and results of operations may be materially and adversely affected.

The success of our brand may also suffer if our marketing plans or product initiatives do not have the desired impact on our brand’s image or its ability to attract consumers. Further, our brand value could diminish significantly due to a number of factors, including consumer perception that we have acted in an irresponsible manner, adverse publicity about our products, our failure to maintain the quality of our products, product contamination, the failure of our products to deliver consistently positive consumer experiences, or the products becoming unavailable to consumers.

A disruption in our operations could materially and adversely affect our business.

As a company engaged in distribution on a global scale, our operations, including those of our third-party manufacturers, suppliers and delivery service providers, are subject to the risks inherent in such activities, including industrial accidents, environmental events, strikes and other labor disputes, disruptions in information systems, product quality control, safety,

 

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licensing requirements and other regulatory issues, as well as natural disasters, pandemics, border disputes, acts of terrorism and other external factors over which we and our third-party manufacturers, suppliers and delivery service providers have no control. The loss of, or damage to, the manufacturing facilities or distribution centers of our third-party manufacturers, suppliers and delivery service providers could have a material adverse effect on our business, financial condition and results of operations.

We depend heavily on ocean container delivery to receive shipments of our products from our third-party manufactures located in China and contracted third-party delivery service providers to deliver our products to a single distribution facility located in Ontario, California, and from there to our retail customers. Further, we rely on postal and parcel carriers for the delivery of products sold directly to consumers through elfcosmetics.com. Interruptions to or failures in these delivery services could prevent the timely or successful delivery of our products. These interruptions or failures may be due to unforeseen events that are beyond our control or the control of our third-party delivery service providers, such as inclement weather, natural disasters or labor unrest. For example, in the fall of 2014, longshoreman work stoppages created a significant backlog of cargo containers at ports. We experienced delays in the shipment of our products as a result of this backlog and were unable to meet our planned inventory allocations for a limited period of time. As another example, in December 2015, a parcel carrier returned five pallets of holiday shipments to us based on their service backlog, causing significant delays in our holiday shipments. If our products are not delivered on time or are delivered in a damaged state, retail customers and consumers may refuse to accept our products and have less confidence in our services. Furthermore, the delivery personnel of contracted third-party delivery service providers act on our behalf and interact with our consumers personally. Any failure to provide high-quality delivery services to our consumers may negatively affect the shopping experience of our consumers, damage our reputation and cause us to lose consumers.

Our ability to meet the needs of our consumers, retail customers and our e.l.f. stores depends on the proper operation of our Ontario, California distribution facility, where most of our inventory that is not in transit is housed. Although we currently insure our inventory, our insurance coverage may not be sufficient to cover the full extent of any loss or damage to our inventory or distribution facility, and any loss, damage or disruption of this facility, or loss or damage of the inventory stored there, could materially and adversely affect our business, financial condition and results of operations.

We rely on third-party suppliers, manufacturers, distributors and other vendors, and they may not continue to produce products or provide services that are consistent with our standards or applicable regulatory requirements, which could harm our brand, cause consumer dissatisfaction, and require us to find alternative suppliers of our products or services.

We do not own or operate any manufacturing facilities. We use multiple third-party suppliers and manufacturers based in China to source and manufacture all of our products. We engage our third-party suppliers and manufacturers on a purchase order basis and are not party to long-term contracts with any of them. The ability of these third parties to supply and manufacture our products may be affected by competing orders placed by other customers and the demands of those customers. If we experience significant increases in demand, or need to replace a significant number of existing suppliers or manufacturers, there can be no assurance that additional supply and manufacturing capacity will be available when required on terms that are acceptable to us, or at all, or that any supplier or manufacturer will allocate sufficient capacity to us in order to meet our requirements.

In addition, quality control problems, such as the use of ingredients and delivery of products that do not meet our quality control standards and specifications or comply with applicable laws or regulations, could harm our business. These quality control problems could result in regulatory action, such as restrictions on importation, products of inferior quality or product stock outages or shortages, harming our sales and creating inventory write-downs for unusable products.

We have also outsourced significant portions of our distribution process, as well as certain technology-related functions, to third-party service providers. Specifically, we rely on third-party distributors to sell our products in a number of foreign countries, our sole distribution center in California is managed and staffed by a third-party service provider, we are dependent on a single third-party vendor for credit card processing and we utilize a third-party hosting and networking provider to host our web services, including elfcosmetics.com. The failure of one or more of these entities to provide the expected services on a timely basis, or at all, or at the prices we expect, or the costs and disruption incurred in changing these outsourced functions to being performed under our management and direct control or that of a third-party, may have a material adverse effect on our business, financial condition and results of operations. We are not party to long-term contracts with some of our distributors, and upon expiration of these existing agreements, we may not be able to renegotiate the terms on a commercially reasonable basis, or at all.

 

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Further, our third-party manufacturers, suppliers and distributors may:

 

  have economic or business interests or goals that are inconsistent with ours;

 

  take actions contrary to our instructions, requests, policies or objectives;

 

  be unable or unwilling to fulfill their obligations under relevant purchase orders, including obligations to meet our production deadlines, quality standards, pricing guidelines and product specifications, and to comply with applicable regulations, including those regarding the safety and quality of products and ingredients;

 

  have financial difficulties;

 

  encounter raw material or labor shortages;

 

  encounter increases in raw material or labor costs which may affect our procurement costs;

 

  disclose our confidential information or intellectual property to competitors or third parties;

 

  engage in activities or employ practices that may harm our reputation; and

 

  work with, be acquired by, or come under control of, our competitors.

The occurrence of any of these events, alone or together, could have a material adverse effect on our business, financial condition and results of operations. In addition, such problems may require us to find new third-party suppliers, manufacturers or distributors, and there can be no assurance that we would be successful in finding third-party suppliers, manufacturers or distributors meeting our standards of innovation and quality.

The management and oversight of the engagement and activities of our third-party suppliers, manufacturers and distributors requires substantial time, effort and expense of our employees, and we may be unable to successfully manage and oversee the activities of our third-party manufacturers, suppliers and distributors. If we experience any supply chain disruptions caused by our manufacturing process or by our inability to locate suitable third-party manufacturers or suppliers, or if our manufacturers or raw material suppliers experience problems with product quality or disruptions or delays in the manufacturing process or delivery of the finished products or the raw materials or components used to make such products, our business, financial condition and results of operations could be materially and adversely affected.

If we fail to manage our inventory effectively, our results of operations, financial condition and liquidity may be materially and adversely affected.

Our business requires us to manage a large volume of inventory effectively. We depend on our forecasts of demand for and popularity of various products to make purchase decisions and to manage our inventory of stock-keeping units (“SKUs”). Demand for products, however, can change significantly between the time inventory or components are ordered and the date of sale. Demand may be affected by seasonality, new product launches, rapid changes in product cycles and pricing, product defects, promotions, changes in consumer spending patterns, changes in consumer tastes with respect to our products and other factors, and our consumers may not purchase products in the quantities that we expect. It may be difficult to accurately forecast demand and determine appropriate levels of product or componentry. We generally do not have the right to return unsold products to our suppliers. If we fail to manage our inventory effectively or negotiate favorable credit terms with third-party suppliers, we may be subject to a heightened risk of inventory obsolescence, a decline in inventory values, and significant inventory write-downs or write-offs. In addition, if we are required to lower sale prices in order to reduce inventory level or to pay higher prices to our suppliers, our profit margins might be negatively affected. Any of the above may materially and adversely affect our business, financial condition and results of operations. See also “—Our quarterly results of operations fluctuate due to seasonality, order patterns from key retail customers and other factors, and we may not have sufficient liquidity to meet our seasonal working capital requirements.”

Our substantial indebtedness may have a material adverse effect on our business, financial condition and results of operations.

As of June 30, 2016, we had a total of $ 206.4 million of indebtedness, consisting of amounts outstanding under our credit facilities and capital lease obligations, and a total availability of $ 22.8 million under our Revolving Credit Facility (as defined under “Description of certain indebtedness”). Our indebtedness could have significant consequences, including:

 

  requiring a substantial portion of our cash flows to be dedicated to debt service payments instead of funding growth, working capital, capital expenditures, investments or other cash requirements;

 

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  reducing our flexibility to adjust to changing business conditions or obtain additional financing;

 

  exposing us to the risk of increased interest rates as our borrowings are at variable rates;

 

  making it more difficult for us to make payments on our indebtedness;

 

  subjecting us to restrictive covenants that may limit our flexibility in operating our business, including our ability to take certain actions with respect to indebtedness, liens, sales of assets, consolidations and mergers, affiliate transactions, dividends and other distributions and changes of control;

 

  subjecting us to maintenance covenants which require us to maintain specific financial ratios; and

 

  limiting our ability to obtain additional financing for working capital, capital expenditures, debt service requirements and general corporate or other purposes.

Our quarterly results of operations fluctuate due to seasonality, order patterns from key retail customers and other factors, and we may not have sufficient liquidity to meet our seasonal working capital requirements.

We generate a significant portion of our net sales in the third and fourth quarters of our fiscal year as a result of higher sales during the holiday season, and adverse events that occur during the third or fourth quarter could have a disproportionate effect on our results of operations for the entire fiscal year. As a result of higher sales during the third and fourth quarters, our working capital needs are greater during the second and third quarters of the fiscal year. In addition to holiday seasonality, we may experience variability in net sales and net income throughout the year as a result of the size and timing of orders from our retail customers. Because a limited number of our retail customers account for a large percentage of our net sales, a change in the order pattern of one or more of our large retail customers could cause a significant fluctuation of our quarterly results or reduce our liquidity. Furthermore, product orders from our large retail customers may vary over time due to changes in their inventory or out-of-stock policies. If we were to experience a significant shortfall in sales or profitability or internally generated funds, we may not have sufficient liquidity to fund our business. As a result of quarterly fluctuations caused by these and other factors, comparisons of our operating results across different fiscal quarters may not be accurate indicators of our future performance. Any quarterly fluctuations that we report in the future may differ from the expectations of market analysts and investors, which could cause the price of our common stock to fluctuate significantly.

We are increasingly dependent on information technology, and if we are unable to protect against service interruptions, data corruption, cyber-based attacks or network security breaches, our operations could be disrupted.

We rely on information technology networks and systems to market and sell our products, to process, transmit and store electronic and financial information, to manage a variety of business processes and activities and to comply with regulatory, legal and tax requirements. We are increasingly dependent on a variety of information systems to effectively process retail customer orders, manage the operations of our e.l.f. store base and fulfill consumer orders from our e-commerce business. We depend on our information technology infrastructure for digital marketing activities and for electronic communications among our e.l.f. stores, personnel, retail customers, consumers, manufacturers and suppliers around the world. These information technology systems, some of which are managed by third parties, may be susceptible to damage, disruptions or shutdowns due to failures during the process of upgrading or replacing software, databases or components, power outages, hardware failures, computer viruses, attacks by computer hackers, telecommunication failures, user errors or catastrophic events. Any material disruption of our systems, or the systems of our third-party service providers, could disrupt our ability to track, record and analyze the products that we sell and could negatively impact our operations, shipment of goods, ability to process financial information and transactions, and our ability to receive and process retail customers and e-commerce orders or engage in normal business activities. If our information technology systems suffer damage, disruption or shutdown and we do not effectively resolve the issues in a timely manner, our business, financial condition and results of operations may be materially and adversely affected, and we could experience delays in reporting our financial results.

Our e-commerce operations are important to our business. Our website serves as an effective extension of our marketing strategies by exposing potential new consumers to our brand, product offerings and enhanced content. Due to the importance of our website and e-commerce operations, we are vulnerable to website downtime and other technical failures. Our failure to successfully respond to these risks could reduce e-commerce sales and damage our brand’s reputation.

 

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We must successfully maintain and upgrade our information technology systems, and our failure to do so could have a material adverse effect on our business, financial condition and results of operations.

We have identified the need to significantly expand and improve our information technology systems and personnel to support recent and expected future growth. As such, we are in process of implementing, and will continue to invest in and implement, significant modifications and upgrades to our information technology systems and procedures, including replacing legacy systems with successor systems, making changes to legacy systems or acquiring new systems with new functionality, hiring employees with information technology expertise and building new policies, procedures, training programs and monitoring tools. These types of activities subject us to inherent costs and risks associated with replacing and changing these systems, including impairment of our ability to leverage our e-commerce channels, fulfill customer orders, potential disruption of our internal control structure, substantial capital expenditures, additional administration and operating expenses, acquisition and retention of sufficiently skilled personnel to implement and operate the new systems, demands on management time and other risks and costs of delays or difficulties in transitioning to or integrating new systems into our current systems. These implementations, modifications and upgrades may not result in productivity improvements at a level that outweighs the costs of implementation, or at all. Additionally, difficulties with implementing new technology systems, delays in our timeline for planned improvements, significant system failures, or our inability to successfully modify our information systems to respond to changes in our business needs may cause disruptions in our business operations and have a material adverse effect on our business, financial condition and results of operations.

If we fail to adopt new technologies or adapt our website and systems to changing consumer requirements or emerging industry standards, our business may be materially and adversely affected.

To remain competitive, we must continue to enhance and improve the responsiveness, functionality and features of our Internet platform, including our e-commerce website and mobile applications. Our competitors are continually developing innovations and introducing new products to increase their consumer base and enhance user experience. As a result, in order to attract and retain consumers and compete against our competitors, we must continue to invest resources to enhance our information technology and improve our existing products and services for our consumers. The Internet and the online retail industry are characterized by rapid technological evolution, changes in consumer requirements and preferences, frequent introductions of new products and services embodying new technologies and the emergence of new industry standards and practices, any of which could render our existing technologies and systems obsolete. Our success will depend, in part, on our ability to identify, develop, acquire or license leading technologies useful in our business, and respond to technological advances and emerging industry standards and practices in a cost-effective and timely way. The development of our website and other proprietary technology entails significant technical and business risks. There can be no assurance that we will be able to properly implement or use new technologies effectively or adapt our website and systems to meet consumer requirements or emerging industry standards. If we are unable to adapt in a cost-effective and timely manner in response to changing market conditions or consumer requirements, whether for technical, legal, financial or other reasons, our business, financial condition and results of operations may be materially and adversely affected.

Failure to protect sensitive information of our consumers and information technology systems against security breaches could damage our reputation and brand and substantially harm our business, financial condition and results of operations.

We collect, maintain, transmit and store data about our consumers, suppliers and others, including personally identifiable and financial information, as well as other confidential and proprietary information. We also employ third-party service providers that collect, store, process and transmit proprietary, personal and confidential information, including credit card information, on our behalf.

Advances in technology, the expertise of criminals, new discoveries in the field of cryptography, acts or omissions by our employees, contractors or service providers or other events or developments could result in a compromise or breach in the security of confidential or sensitive information. We and our service providers may not be able to prevent third parties, including criminals, competitors or others, from breaking into or altering our systems, conducting denial-of-service attacks, attempting to gain access to our systems, information or monetary funds through phishing or social engineering campaigns, installing viruses or malicious software on our website or devices used by our employees or contractors, or carrying out other activity intended to disrupt our systems or gain access to confidential or sensitive information in our or our service providers’ systems. Furthermore, such third parties may further engage in various other illegal activities using such information, including credit card fraud, which may cause additional harm to us, our consumers and our brand. We also may be vulnerable to error or malfeasance by our own employees or other insiders. Third parties may attempt to fraudulently

 

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induce our or our service providers’ employees to misdirect funds or to disclose information in order to gain access to personal data we maintain about our consumers or website users. In addition, we have limited control or influence over the security policies or measures adopted by third-party providers of online payment services through which some of our consumers may elect to make payment for purchases at our website. Contracted third-party delivery service providers may also violate their confidentiality obligations and disclose or use information about our consumers inadvertently or illegally.

If any breach of information security were to occur, our reputation and brand could be damaged, our business may suffer, we could be required to expend significant capital and other resources to alleviate problems caused by such breaches, and we could be exposed to a risk of loss, litigation or regulatory action and possible liability. Actual or anticipated attacks may cause us to incur increasing costs, including costs to deploy additional personnel and protection technologies, train employees and engage third-party experts and consultants. In addition, any party who is able to illicitly obtain a subscriber’s password could access the subscriber’s financial, transaction or personal information. Any compromise or breach of our security measures, or those of our third-party service providers, may violate applicable privacy, data security and other laws, and cause significant legal and financial exposure, adverse publicity and a loss of confidence in our security measures, which could have a material adverse effect on our business, financial condition and results of operations. Although we maintain privacy, data breach and network security liability insurance, we cannot be certain that our coverage will be adequate for liabilities actually incurred or that insurance will continue to be available to us on economically reasonable terms, or at all. We may need to devote significant resources to protect against security breaches or to address problems caused by breaches, diverting resources from the growth and expansion of our business.

Payment methods used on our Internet platform subject us to third-party payment processing-related risks.

We accept payments from our consumers using a variety of methods, including online payments with credit cards and debit cards issued by major banks in the United States, and payment through third-party online payment platforms such as PayPal. We also rely on third parties to provide payment processing services. For certain payment methods, including credit and debit cards, we pay interchange and other fees, which may increase over time and raise our operating costs and lower our profit margins. We may also be subject to fraud and other illegal activities in connection with the various payment methods we offer, including online payment options. For online consumers, these are card-not-present transactions, so they present a greater risk of fraud. Criminals are using increasingly sophisticated methods to engage in illegal activities such as unauthorized use of credit or debit cards and bank account information. To the extent we are an online seller, requirements relating to consumer authentication and fraud detection are more complex. We may ultimately be held liable for the unauthorized use of a cardholder’s card number in an illegal activity and be required by card issuers to pay charge-back fees. Charge-backs result not only in our loss of fees earned with respect to the payment, but also leave us liable for the underlying money transfer amount. If our charge-back rate becomes excessive, card associations also may require us to pay fines or refuse to process our transactions. In addition, we may be subject to additional fraud risk if third-party service providers or our employees fraudulently use consumer information for their own gain or facilitate the fraudulent use of such information. Overall, we may have little recourse if we process a criminally fraudulent transaction.

We are subject to payment card association operating rules, certification requirements and various rules, regulations and requirements governing electronic funds transfers, which could change or be reinterpreted to make it difficult or impossible for us to comply. As our business changes we may also be subject to different rules under existing standards, which may require new assessments that involve costs above what we currently pay for compliance. If we fail to comply with the rules or requirements of any provider of a payment method we accept, or if the volume of fraud in our transactions limits or terminates our rights to use payment methods we currently accept, or if a data breach occurs relating to our payment systems, among other things, we may be subject to fines and higher transaction fees and lose our ability to accept credit and debit card payments from our consumers, process electronic funds transfers or facilitate other types of online payments, and our reputation and our business, financial condition and results of operations could be materially and adversely affected.

We have significant operations in China, which exposes us to risks inherent in doing business there.

We currently source and manufacture all of our products from third-party suppliers and manufacturers in China. As of August 2016, we had a team of 54 employees in China to manage our supply chain. With the rapid development of the Chinese economy, the cost of labor has increased and may continue to increase in the future. Our results of operations will be materially and adversely affected if our labor costs, or the labor costs of our suppliers and manufacturers, increase significantly. In addition, we and our manufacturers and suppliers may not be able to find a sufficient number of qualified workers due to the intensely competitive and fluid market for skilled labor in China. Furthermore, pursuant to Chinese labor laws, employers in China are subject to various requirements when signing labor contracts, paying remuneration,

 

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determining the term of employees’ probation and unilaterally terminating labor contracts. These labor laws and related regulations impose liabilities on employers and may significantly increase the costs of workforce reductions. If we decide to change or reduce our workforce, these labor laws could limit or restrict our ability to make such changes in a timely, favorable and effective manner. Any of these events may materially and adversely affect our business, financial condition and results of operations.

Operating in China exposes us to political, legal and economic risks. In particular, the political, legal and economic climate in China, both nationally and regionally, is fluid and unpredictable. Our ability to operate in China may be adversely affected by changes in Chinese laws and regulations such as those related to, among other things, taxation, import and export tariffs, environmental regulations, land use rights, intellectual property, currency controls, employee benefits and other matters. In addition, we may not obtain or retain the requisite legal permits to continue to operate in China, and costs or operational limitations may be imposed in connection with obtaining and complying with such permits. In addition, Chinese trade regulations are in a state of flux, and we may become subject to other forms of taxation, tariffs and duties in China. Furthermore, the third parties we rely on in China may disclose our confidential information or intellectual property to competitors or third parties, which could result in the illegal distribution and sale of counterfeit versions of our products. If any of these events occur, our business, financial condition and results of operations could be materially and adversely affected.

If our cash from operations is not sufficient to meet our current or future operating needs, expenditures and debt service obligations, our business, financial condition and results of operations may be materially and adversely affected.

We may require additional cash resources due to changed business conditions or other future developments, including any marketing initiatives, investments or acquisitions we may decide to pursue. To the extent we are unable to generate sufficient cash flow, we may be forced to cancel, reduce or delay these activities. Alternatively, if our sources of funding are insufficient to satisfy our cash requirements, we may seek to obtain an additional credit facility or sell additional equity or debt securities. The sale of additional equity securities would result in dilution of our existing stockholders. The incurrence of additional indebtedness would result in increased debt service obligations and operating and financing covenants that could restrict our operations.

Our ability to generate cash to meet our operating needs, expenditures and debt service obligations will depend on our future performance and financial condition, which will be affected by financial, business, economic, legislative, regulatory and other factors, including potential changes in costs, pricing, the success of product innovation and marketing, competitive pressure and consumer preferences. If our cash flows and capital resources are insufficient to fund our debt service obligations and other cash needs, we could face substantial liquidity problems and could be forced to reduce or delay investments and capital expenditures or to dispose of material assets or operations, seek additional debt or equity capital or restructure or refinance our indebtedness. Our credit facilities may restrict our ability to take these actions, and we may not be able to affect any such alternative measures on commercially reasonable terms, or at all. If we cannot make scheduled payments on our debt, the lenders under our Senior Credit Facility can terminate their commitments to loan money under our Revolving Credit Facility, and our lenders under our Senior Credit Facility and, subject to the terms of the intercreditor agreement, Second Lien Credit Facility (as such terms are defined under “Description of certain indebtedness”) can declare all outstanding principal and interest to be due and payable and foreclose against the assets securing their borrowings, and we could be forced into bankruptcy or liquidation.

Furthermore, it is uncertain whether financing will be available in amounts or on terms acceptable to us, if at all, which could have a material adverse effect on our business, financial condition and results of operations.

Our success depends, in part, on our retention of key members of our senior management team and ability to attract and retain qualified personnel.

Our success depends, in part, on our ability to retain our key employees, including our executive officers, senior management team and development, operations, finance, sales and marketing personnel. We are a small company that relies on a few key employees, any one of whom would be difficult to replace, and because we are a small company, we believe that the loss of key employees may be more disruptive to us than it would be to a large, international company. Our success also depends, in part, on our continuing ability to identify, hire, train and retain other highly qualified personnel. In addition, we may be unable to effectively plan for the succession of senior management, including our chief executive officer. The loss of key personnel or the failure to attract and retain qualified personnel may have a material adverse effect on our business, financial condition and results of operations.

 

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Increasing the number of e.l.f. stores may not be successful and will subject us to risks associated with long-term non-cancelable leases and increased capital requirements that may adversely affect our business, financial condition and results of operations.

Our growth strategy is dependent in part on our ability to open and operate new brick-and-mortar e.l.f. stores in high-traffic areas in the United States. The success of this strategy is dependent upon, among other factors, the identification of suitable markets and sites for store locations, the negotiation of acceptable lease terms, the hiring, training and retention of competent sales personnel, the successful integration of these stores into our existing operations and information technology systems and making capital expenditures for these stores.

As a result of our limited experience in operating direct-to-consumer retail stores, e.l.f. stores may be less successful than we expect. Our current strategy includes pursuing continued expansion of e.l.f. stores in the United States at a steady or increased pace. The effect of these stores, particularly in growing numbers, on our business and results of operations is uncertain and dependent on various factors. Falling short in our pursuit of expansion could potentially lead to a negative impact on our growth plan while incurring significant financial costs, expenses and investments.

All of our e.l.f. stores are located on leased premises, and we expect that any new e.l.f. stores will also be located on leased premises. The leases for our stores generally have initial terms of 10 years and typically provide for a single renewal option in five-year increments as well as for rent escalations. We generally cannot terminate these leases before the end of the initial lease term and our ability to assign or sublease is subject to certain conditions. Additional sites that we lease are likely to be subject to similar long-term, non-terminable leases. If we close a store, we nonetheless may be obligated to perform our monetary obligations under the applicable lease, including, among other things, payment of the base rent for the balance of the lease term. In addition, if we fail to negotiate renewals, either on commercially acceptable terms or at all, as each of our leases expires we could be forced to close stores in desirable locations.

We depend on cash flows from operations to pay our lease expenses and to fulfill our other cash needs. If our business does not generate sufficient cash flow from operating activities, and sufficient funds are not otherwise available to us from borrowings under our Revolving Credit Facility or other sources, we may not be able to service our lease expenses or fund our other liquidity and capital needs, which would materially affect our business.

We plan to make capital expenditures to open additional e.l.f. stores. Furthermore, the commitments associated with any expansion will increase our operating expenses and may be costly to terminate if we decide to close a store or change our strategy. We are likely to incur costs associated with these investments earlier than some of the anticipated financial and other benefits, and the return on these investments may be lower, or may develop more slowly, than we expect. As a result, the carrying value of the related assets may be subject to an impairment charge, which could materially and adversely affect our results of operations.

Adverse U.S. or international economic conditions could negatively affect our business, financial condition and results of operations.

Consumer spending on cosmetic products is influenced by general economic conditions and the availability of discretionary income. Adverse U.S. or international economic conditions or periods of inflation or high energy prices may contribute to higher unemployment levels, decreased consumer spending, reduced credit availability and declining consumer confidence and demand, each of which poses a risk to our business. A decrease in consumer spending or in retailer and consumer confidence and demand for our products could have a significant negative impact on our net sales and profitability, including our operating margins and return on invested capital. These economic conditions could cause some of our retail customers or suppliers to experience cash flow or credit problems and impair their financial condition, which could disrupt our business and adversely affect product orders, payment patterns and default rates and increase our bad debt expense.

The results of the United Kingdom’s referendum on withdrawal from the European Union may have a negative effect on global economic conditions, financial markets and our business.

In June 2016, a majority of voters in the United Kingdom elected to withdraw from the European Union in a national referendum. The referendum was advisory, and the terms of any withdrawal are subject to a negotiation period that could last at least two years after the government of the United Kingdom formally initiates a withdrawal process. Nevertheless, the referendum has created significant uncertainty about the future relationship between the United Kingdom and the European Union, including with respect to the laws and regulations that will apply as the United Kingdom determines which European Union laws to replace or replicate in the event of a withdrawal. The referendum has also given rise to calls for the

 

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governments of other European Union member states to consider withdrawal. These developments, or the perception that any of them could occur, have had and may continue to have a material adverse effect on global economic conditions and the stability of global financial markets, and may significantly reduce global market liquidity and restrict the ability of key market participants to operate in certain financial markets. Any of these factors could depress economic activity and restrict our access to capital, which could have a material adverse effect on our business, financial condition and results of operations.

We are subject to international business uncertainties.

Net sales from outside the United States comprised 9%, 7% and 6% of our net sales in the Unaudited Pro Forma Combined 2014 Period, the year ended December 31, 2015 and the six months ended June 30, 2016, respectively. Further, our third-party suppliers and manufacturers are located in China. We intend to maintain our relationships in China and may establish additional relationships in other countries to grow our operations. The substantial up-front investment required, the lack of consumer awareness of our products in jurisdictions outside of the United States, differences in consumer preferences and trends between the United States and other jurisdictions, the risk of inadequate intellectual property protections and differences in packaging, labeling, cosmetics and related laws, rules and regulations are all substantial matters that need to be evaluated prior to doing business in new territories. We cannot be assured that our international efforts will be successful. International sales and increased international operations may be subject to risks such as:

 

  difficulties in staffing and managing foreign operations;

 

  burdens of complying with a wide variety of laws and regulations, including more stringent regulations relating to data privacy and security, particularly in the European Union;

 

  adverse tax effects and foreign exchange controls making it difficult to repatriate earnings and cash;

 

  political and economic instability;

 

  terrorist activities and natural disasters;

 

  trade restrictions;

 

  differing employment practices and laws and labor disruptions;

 

  the imposition of government controls;

 

  an inability to use or to obtain adequate intellectual property protection for our key brands and products;

 

  tariffs and customs duties and the classifications of our goods by applicable governmental bodies;

 

  a legal system subject to undue influence or corruption;

 

  a business culture in which illegal sales practices may be prevalent;

 

  logistics and sourcing;

 

  military conflicts; and

 

  acts of terrorism.

The occurrence of any of these risks could negatively affect our international business and consequently our overall business, financial condition and results of operations.

New laws, regulations, enforcement trends or changes in existing regulations governing the introduction, marketing and sale of our products to consumers could harm our business.

There has been an increase in regulatory activity and activism in the United States, and the regulatory landscape is becoming more complex with increasingly strict requirements. If this trend continues, we may find it necessary to alter some of the ways we have traditionally manufactured and marketed our products in order to stay in compliance with a changing regulatory landscape, and this could add to the costs of our operations and have an adverse impact on our business. To the extent federal, state, local or foreign regulatory changes regarding consumer protection, or the ingredients, claims or safety of our products occur in the future, they could require us to reformulate or discontinue certain of our

 

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products, revise the product packaging or labeling, or adjust operations and systems, any of which could result in, among other things, increased costs, delays in product launches, product returns or recalls and lower net sales, and therefore could have a material adverse effect on our business, financial condition and results of operations. Noncompliance with applicable regulations could result in enforcement action by the FDA or other regulatory authorities, including but not limited to product seizures, injunctions, product recalls, and criminal or civil monetary penalties, all of which could have a material adverse effect on our business, financial condition and results of operations.

In the United States, the FDA does not currently require pre-market approval for products intended to be sold as cosmetics. However, the FDA may in the future require pre-market approval, clearance or registration/notification of cosmetic products, establishments or manufacturing facilities. Moreover, such products could also be regulated as both drugs and cosmetics simultaneously, as the categories are not mutually exclusive. The statutory and regulatory requirements applicable to drugs are extensive and require significant resources and time to ensure compliance. For example, if any of our products intended to be sold as cosmetics were to be regulated as drugs, we might be required to conduct, among other things, clinical trials to demonstrate the safety and efficacy of these products. We may not have sufficient resources to conduct any required clinical trials or to ensure compliance with the manufacturing requirements applicable to drugs. If the FDA determines that any of our products intended to be sold as cosmetics should be classified and regulated as drug products and we are unable to comply with applicable drug requirements, we may be unable to continue to market those products. Any inquiry into the regulatory status of our cosmetics and any related interruption in the marketing and sale of these products could damage our reputation and image in the marketplace.

In recent years, the FDA has issued warning letters to several cosmetic companies alleging improper claims regarding their cosmetic products. If the FDA determines that we have disseminated inappropriate drug claims for our products intended to be sold as cosmetics, we could receive a warning or untitled letter, be required to modify our product claims or take other actions to satisfy the FDA. In addition, plaintiffs’ lawyers have filed class action lawsuits against cosmetic companies after receipt of these types of FDA warning letters. There can be no assurance that we will not be subject to state and federal government actions or class action lawsuits, which could harm our business, financial condition and results of operations.

Additional state and federal requirements may be imposed on consumer products as well as cosmetics, cosmetic ingredients, or the labeling and packaging of products intended for use as cosmetics. For example, several lawmakers are currently focused on giving the FDA additional authority to regulate cosmetics and their ingredients. This increased authority could require the FDA to impose increased testing and manufacturing requirements on cosmetic manufacturers or cosmetics or their ingredients before they may be marketed. We are unable to ascertain what, if any, impact any increased statutory or regulatory requirements may have on our business.

We sell a number of products as over-the-counter (“OTC”) drug products, which are subject to the FDA OTC drug regulatory requirements because they are intended to be used as sunscreen or to treat acne. The FDA regulates the formulation, manufacturing, packaging and labeling of OTC drug products. Our sunscreen and acne drug products are regulated pursuant to FDA OTC drug monographs that specify acceptable active drug ingredients and acceptable product claims that are generally recognized as safe and effective for particular uses. If any of these products that are marketed as OTC drugs are not in compliance with the applicable FDA monograph, we may be required to reformulate the product, stop making claims relating to such product or stop selling the product until we are able to obtain costly and time-consuming FDA approvals. We are also required to submit adverse event reports to the FDA for our OTC drug products, and failure to comply with this requirement may subject us to FDA regulatory action.

We also sell a number of consumer products, which are subject to regulation by the CPSC in the United States under the provisions of the Consumer Product Safety Act, as amended by the Consumer Product Safety Improvement Act of 2008. These statutes and the related regulations ban from the market consumer products that fail to comply with applicable product safety laws, regulations, and standards. The CPSC has the authority to require the recall, repair, replacement or refund of any such banned products or products that otherwise create a substantial risk of injury and may seek penalties for regulatory noncompliance under certain circumstances. The CPSC also requires manufacturers of consumer products to report certain types of information to the CPSC regarding products that fail to comply with applicable regulations. Certain state laws also address the safety of consumer products, and mandate reporting requirements, and noncompliance may result in penalties or other regulatory action.

Our products are also subject to state laws and regulations, such as the California Safe Drinking Water and Toxic Enforcement Act, also known as “Prop 65”, and failure to comply with such laws may also result in lawsuits and regulatory enforcement that could have a material adverse effect on our business, financial condition and results of operations.

 

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Our facilities and those of our third-party manufacturers are subject to regulation under the Federal Food, Drug and Cosmetic Act (the “FDCA”) and FDA implementing regulations.

Our facilities and those of our third-party manufacturers are subject to regulation under the FDCA and FDA implementing regulations. The FDA may inspect all of our facilities and those of our third-party manufacturers periodically to determine if we and our third-party manufacturers are complying with provisions of the FDCA and FDA regulations. In addition, third-party manufacturer’s facilities for manufacturing OTC drug products are required to comply with FDA’s drug good manufacturing practices (“GMPs”) that require us and our manufacturers to maintain, among other things, good manufacturing processes, including stringent vendor qualifications, ingredient identification, manufacturing controls and record keeping.

Our operations could be harmed if regulatory authorities make determinations that we, or our vendors, are not in compliance with these regulations. If the FDA finds a violation of GMPs, it may enjoin our manufacturer’s operations, seize product, and impose administrative, civil or criminal penalties. If we or our third-party manufacturers fail to comply with applicable regulatory requirements, we could be required to take costly corrective actions, including suspending manufacturing operations, changing product formulations, suspending sales, or initiating product recalls. In addition, compliance with these regulations has increased and may further increase the cost of manufacturing certain of our products as we work with our vendors to assure they are qualified and in compliance. Any of these outcomes could have a material adverse effect on our business, financial condition and results of operations.

Government regulations and private party actions relating to the marketing and advertising of our products and services may restrict, inhibit or delay our ability to sell our products and harm our business, financial condition and results of operations.

Government authorities regulate advertising and product claims regarding the performance and benefits of our products. These regulatory authorities typically require a reasonable basis to support any marketing claims. What constitutes a reasonable basis for substantiation can vary widely from market to market, and there is no assurance that the efforts that we undertake to support our claims will be deemed adequate for any particular product or claim. The most significant area of risk for such activities relates to improper or unsubstantiated claims about our products and their use or safety. If we are unable to show adequate substantiation for our product claims, or our promotional materials make claims that exceed the scope of allowed claims for the classification of the specific product, whether cosmetics, OTC drug products or other consumer products that we offer, the FDA, the FTC or other regulatory authorities could take enforcement action or impose penalties, such as monetary consumer redress, requiring us to revise our marketing materials, amend our claims or stop selling certain products, all of which could harm our business, financial condition and results of operations. Any regulatory action or penalty could lead to private party actions, which could further harm our business, financial condition and results of operations.

Our business is subject to complex and evolving U.S. and foreign laws and regulations regarding privacy, data protection and other matters. Many of these laws and regulations are subject to change and uncertain interpretation, and could result in claims, changes to our business practices, monetary penalties, increased costs of operations or otherwise harm our business, financial condition and results of operations.

We are subject to a variety of laws and regulations in the United States and abroad that involve matters central to our business, including privacy and data protection, intellectual property, advertising, marketing, distribution, consumer protection and online payment services. The sale of products outside the U.S., the introduction of new products or expansion of our activities in certain jurisdictions may subject us to additional laws and regulations. These U.S. federal and state and foreign laws and regulations, which can be enforced by private parties or government entities, are constantly evolving and can be subject to significant change. For example, in 2015, the European Union High Court of Justice invalidated the U.S.-EU Safe Harbor regarding the transfer of personal information between the United States and the European Union. European and U.S. negotiators agreed in February 2016 on a new framework, the Privacy Shield, which would replace the Safe Harbor framework. However, it is not known whether the European Commission will accept the new, stricter requirements as adequate. Although we sell our products on a UK website, we do not have personnel or operations based in Europe. We have not historically relied on the former Safe Harbor framework to justify the collection, storage and processing of European consumer data on our servers in the United States. If we were to in the future it is already clear that under the new framework, companies which rely on the new Privacy Shield framework will face more stringent obligations and the sanctions for non-compliance with the principles of the framework will be more robust. In addition, the European Union is significantly amending its data protection laws in ways that may limit our ability to collect or use information or increase our

 

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potential liability for misuse, loss or a breach of security in data of EU residents. The application, interpretation and enforcement of these laws and regulations may be uncertain, and may be interpreted and applied inconsistently from jurisdiction to jurisdiction and inconsistently with our current policies and practices. Moreover, consumer data privacy remains a matter of interest to lawmakers and regulators, and a number of other proposals are pending before federal, state and foreign legislative and regulatory bodies that could significantly affect our business. These existing and proposed laws and regulations can be costly to comply with and can delay or impede our ability to market and sell our products, result in negative publicity, increase our operating costs, require significant management time and attention, and subject us to inquiries or investigations, claims or other remedies, including fines or demands that we modify or cease existing business practices.

Furthermore, foreign data protection, privacy and other laws and regulations are often more restrictive than those in the United States. The European Union, for example, traditionally has imposed stricter obligations under its laws and regulations relating to privacy, data protection and consumer protection than the United States. Under the present regime, individual EU member countries have discretion with respect to their interpretation and implementation of these laws and the penalties for breach and have their own regulators with differing attitudes towards enforcement, which results in varying privacy standards and enforcement risks from jurisdiction to jurisdiction. Legislation and regulation in the European Union and some EU member states require companies to give specific types of notice and in some cases seek consent from consumers before using their data for certain purposes, including some marketing activities. In the majority of EU member countries, consent must be obtained prior to setting cookies or other tracking technologies. Outside of the European Union, there are many countries with data protections laws, and new countries are adopting data protection legislation with increasing frequency. Many of these laws also require consent from consumers for the collection and use of data for various purposes, including marketing, which may reduce the ability to market our products. In particular, these laws may have an impact on our ability to conduct business through websites we and our partners may operate outside the U.S. There is no harmonized approach to these laws and regulations globally although several frameworks exist. Consequently, the potential risk of non-compliance with applicable foreign data protection laws and regulations will increase as we continue our international expansion. We may need to change and limit the way we use consumer information in operating our business and may have difficulty maintaining a single operating model that is compliant. Compliance with such laws and regulations will result in additional costs and may necessitate changes to our business practices and divergent operating models, which may adversely affect our business, financial condition and results of operations.

We are involved, and may become involved in the future, in disputes and other legal or regulatory proceedings that, if adversely decided or settled, could materially and adversely affect our business, financial condition and results of operations.

We are, and may in the future become, party to litigation, regulatory proceedings or other disputes. In general, claims made by or against us in disputes and other legal or regulatory proceedings can be expensive and time consuming to bring or defend against, requiring us to expend significant resources and divert the efforts and attention of our management and other personnel from our business operations. These potential claims include but are not limited to personal injury and class action lawsuits and regulatory investigations relating to the advertising and promotional claims about our products. Any adverse determination against us in these proceedings, or even the allegations contained in the claims, regardless of whether they are ultimately found to be without merit, may also result in settlements, injunctions or damages that could have a material adverse effect on our business, financial condition and results of operations.

We may be required to recall products and may face product liability claims, either of which could result in unexpected costs and damage our reputation.

We sell products for human use. Our products intended for use as cosmetics are not generally subject to pre-market approval or registration processes, so we cannot rely upon a government safety panel to qualify or approve our products for use. A product may be safe for the general population when used as directed but could cause an adverse reaction for a person who has a health condition or allergies, or who is taking a prescription medication. While we include what we believe are adequate instructions and warnings and we have historically had low numbers of reported adverse reactions, previously unknown adverse reactions could occur. If we discover that any of our products are causing adverse reactions, we could suffer further adverse publicity or regulatory/government sanctions.

Potential product liability risks may arise from the testing, manufacture and sale of our products, including that the products fail to meet quality or manufacturing specifications, contain contaminants, include inadequate instructions as to their proper use, include inadequate warnings concerning side effects and interactions with other substances or for persons

 

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with health conditions or allergies, or cause adverse reactions or side effects. Product liability claims could increase our costs, and adversely affect our business, financial condition and results of operations. As we continue to offer an increasing number of new products, our product liability risk may increase. It may be necessary for us to recall products that do not meet approved specifications or because of the side effects resulting from the use of our products, which would result in adverse publicity, potentially significant costs in connection with the recall and could have a material adverse effect on our business, financial condition and results of operations.

In addition, plaintiffs in the past have received substantial damage awards from other cosmetic and drug companies based upon claims for injuries allegedly caused by the use of their products. Although we currently maintain general liability insurance, any claims brought against us may exceed our existing or future insurance policy coverage or limits. Any judgment against us that is in excess of our policy coverage or limits would have to be paid from our cash reserves, which would reduce our capital resources. In addition, we may be required to pay higher premiums and accept higher deductibles in order to secure adequate insurance coverage in the future. Further, we may not have sufficient capital resources to pay a judgment, in which case our creditors could levy against our assets. Any product liability claim or series of claims brought against us could harm our business significantly, particularly if a claim were to result in adverse publicity or damage awards outside or in excess of our insurance policy limits.

If we are unable to protect our intellectual property the value of our brand and other intangible assets may be diminished, and our business may be adversely affected.

We rely on trademark, copyright, trade secret, patent and other laws protecting proprietary rights, nondisclosure and confidentiality agreements and other practices, to protect our brands and proprietary information, technologies and processes. Our principal intellectual property assets include the registered trademarks “e.l.f.,” “eyes lips face” and “play beautifully.” Our trademarks are valuable assets that support our brand and consumers’ perception of our products. Although we have existing and pending trademark registrations for our brands in the United States and in many of the foreign countries in which we operate, we may not be successful in asserting trademark or trade name protection in all jurisdictions. We also have not applied for trademark protection in all relevant foreign jurisdictions and cannot assure you that our pending trademark applications will be approved. Third parties may also oppose our trademark applications domestically or abroad, or otherwise challenge our use of the trademarks. In the event that our trademarks are successfully challenged, we could be forced to rebrand our products in some parts of the world, which could result in the loss of brand recognition and could require us to devote resources to advertising and marketing new brands.

We have limited patent protection, and currently own a United States design patent and have several United States utility and design patent applications pending. We may in the future pursue other patent protection. Limited patent protection for our products limits our ability to protect our products from competition. We primarily rely on know-how to protect our products. It is possible that others will independently develop the same or similar know-how, which may allow them to sell products similar to ours. If others obtain access to our know-how, our confidentiality agreements may not effectively prevent disclosure of our proprietary information, technologies and processes and may not provide an adequate remedy in the event of unauthorized use of such information, which could harm our competitive position.

The efforts we have taken to protect our proprietary rights may not be sufficient or effective. In addition, effective trademark, copyright, patent and trade secret protection may be unavailable or limited for certain of our intellectual property in some foreign countries. Other parties may infringe our intellectual property rights and may dilute our brands in the marketplace. We may need to engage in litigation or other activities to enforce our intellectual property rights, to protect our trade secrets or to determine the validity and scope of proprietary rights of others. Any such activities could require us to expend significant resources and divert the efforts and attention of our management and other personnel from our business operations. If we fail to protect our intellectual property or other proprietary rights, our business, financial condition and results of operations may be materially and adversely affected.

Our success depends on our ability to operate our business without infringing, misappropriating or otherwise violating the trademarks, patents, copyrights and other proprietary rights of third parties.

Our commercial success depends in part on our ability to operate without infringing, misappropriating or otherwise violating the trademarks, patents, copyrights, trade secrets and other proprietary rights of others. We cannot be certain that the conduct of our business does not and will not infringe, misappropriate or otherwise violate such rights. In addition, third parties may involve us in intellectual property disputes as part of a business model or strategy to gain competitive advantage. While we are not involved in any currently active intellectual property litigation, from time to time we receive allegations of trademark or patent infringement and third parties have filed claims against us with allegations of intellectual property infringement.

 

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To the extent we gain greater visibility and market exposure as a public company or otherwise, we may also face a greater risk of being the subject of such claims and litigation. For these and other reasons, third parties may allege that our products or activities infringe, misappropriate, dilute or otherwise violate their trademark, patent, copyright or other proprietary rights. Defending against allegations and litigation could be expensive, occupy significant amounts of time, divert management’s attention from other business concerns and have an adverse impact on our ability to bring products to market. In addition, if we are found to infringe, misappropriate, dilute or otherwise violate third-party trademark, patent, copyright or other proprietary rights, our ability to use brands to the fullest extent we plan may be limited, we may need to obtain a license, which may not be available on commercially reasonable terms, or at all, or we may need to redesign or rebrand our marketing strategies or products, which may not be possible. We may also be required to pay substantial damages or be subject to an order prohibiting us and our retail customers from importing or selling certain products or engaging in certain activities. Our inability to operate our business without infringing, misappropriating or otherwise violating the trademarks, patents, copyrights and proprietary rights of others could have a material adverse effect on our business, financial condition and results of operations.

Use of social media may materially and adversely affect our reputation or subject us to fines or other penalties.

We rely to a large extent on our online presence to reach consumers, and we offer consumers the opportunity to rate and comment on our products on our website. Negative commentary regarding us or our products may be posted on our website or social media platforms and may be adverse to our reputation or business. Our target consumers often value readily available information and often act on such information without further investigation and without regard to its accuracy. The harm may be immediate without affording us an opportunity for redress or correction. In addition, we may face claims relating to information that is published or made available through the interactive features of our website. For example, we may receive third-party complaints that the comments or other content posted by users on our platforms infringe third-party intellectual property rights or otherwise infringe the legal rights of others. While the Communications Decency Act (CDA) and Digital Millennium Copyright Act (DMCA) generally protect online service providers from claims of copyright infringement or other legal liability for the self-directed activities of its users, if it were determined that we did not meet the relevant safe harbor requirements under either law, we could be exposed to claims related to advertising practices, defamation, intellectual property rights, rights of publicity and privacy, and personal injury torts. We could incur significant costs investigating and defending such claims and, if we are found liable, significant damages. If any of these events occur, our business, financial condition and results of operations could be materially and adversely affected.

We also use third-party social media platforms as marketing tools. For example, we maintain Facebook, Twitter, Pinterest, Instagram, YouTube and Google+ accounts. As e-commerce and social media platforms continue to rapidly evolve, we must continue to maintain a presence on these platforms and establish presences on new or emerging popular social media platforms. If we are unable to cost-effectively use social media platforms as marketing tools, our ability to acquire new consumers and our financial condition may suffer. Furthermore, as laws and regulations rapidly evolve to govern the use of these platforms and devices, the failure by us, our employees or third parties acting at our direction to abide by applicable laws and regulations in the use of these platforms and devices could subject us to regulatory investigations, class action lawsuits, liability, fines or other penalties and have a material adverse effect on our business, financial condition and result of operations.

In addition, an increase in the use of social media for product promotion and marketing may cause an increase in the burden on us to monitor compliance of such materials, and increase the risk that such materials could contain problematic product or marketing claims in violation of applicable regulations.

Volatility in the financial markets could have a material adverse effect on our business.

While we currently generate significant cash flows from our ongoing operations and have had access to credit markets through our various financing activities, credit markets may experience significant disruptions. Deterioration in global financial markets could make future financing difficult or more expensive. If any financial institution party to our credit facilities or other financing arrangements were to declare bankruptcy or become insolvent, they may be unable to perform under their agreements with us. This could leave us with reduced borrowing capacity, which could have a material adverse effect on our business, financial condition and results of operations.

Fluctuations in currency exchange rates may negatively affect our financial condition and results of operations.

Exchange rate fluctuations may affect the costs that we incur in our operations. The main currencies to which we are exposed are the Chinese renminbi, the British pound and the Canadian dollar. The exchange rates between these currencies

 

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and the U.S. dollar in recent years have fluctuated significantly and may continue to do so in the future. A depreciation of these currencies against the U.S. dollar will decrease the U.S. dollar equivalent of the amounts derived from foreign operations reported in our consolidated financial statements, and an appreciation of these currencies will result in a corresponding increase in such amounts. The cost of certain items, such as raw materials, manufacturing, employee salaries and transportation and freight, required by our operations may be affected by changes in the value of the relevant currencies. To the extent that we are required to pay for goods or services in foreign currencies, the appreciation of such currencies against the U.S. dollar will tend to negatively affect our business. There can be no assurance that foreign currency fluctuations will not have a material adverse effect on our business, financial condition and results of operations.

Future acquisitions or investments could disrupt our business and harm our financial condition.

In the future we may pursue acquisitions or investments that we believe will help us achieve our strategic objectives. The process of integrating an acquired business, product or technology can create unforeseen operating difficulties, expenditures and other challenges such as:

 

  potentially increased regulatory and compliance requirements;

 

  implementation or remediation of controls, procedures and policies at the acquired company;

 

  diversion of management time and focus from operation of our then-existing business to acquisition integration challenges;

 

  coordination of product, sales, marketing and program and systems management functions;

 

  transition of the acquired company’s users and customers onto our systems;

 

  retention of employees from the acquired company;

 

  integration of employees from the acquired company into our organization;

 

  integration of the acquired company’s accounting, information management, human resources and other administrative systems and operations into our systems and operations;

 

  liability for activities of the acquired company prior to the acquisition, including violations of law, commercial disputes and tax and other known and unknown liabilities; and

 

  litigation or other claims in connection with the acquired company, including claims brought by terminated employees, customers, former stockholders or other third parties.

If we are unable to address these difficulties and challenges or other problems encountered in connection with any future acquisition or investment, we might not realize the anticipated benefits of that acquisition or investment and we might incur unanticipated liabilities or otherwise suffer harm to our business generally.

To the extent that we pay the consideration for any future acquisitions or investments in cash, it would reduce the amount of cash available to us for other purposes. Future acquisitions or investments could also result in dilutive issuances of our equity securities or the incurrence of debt, contingent liabilities, amortization expenses, increased interest expenses or impairment charges against goodwill on our consolidated balance sheet, any of which could have a material adverse effect on our business, results of operations and financial condition.

We have previously identified a material weakness in our internal control over financial reporting, and if we are unable to maintain effective internal controls, we may not be able to produce timely and accurate financial statements, and we or our independent registered public accounting firm may conclude that our internal control over financial reporting is not effective, which could adversely impact our investors’ confidence and our stock price.

Prior to our initial public offering, we were a private company and were not required to test our internal controls on a systematic basis. As an “emerging growth company” under the JOBS Act, our management will be required to report upon the effectiveness of our internal control over financial reporting under Section 404 of the Sarbanes-Oxley Act beginning with the annual report for our fiscal year ending December 31, 2017. Our independent registered public accounting firm is not required to formally attest to the effectiveness of our internal control over financial reporting until the date we are no longer an “emerging growth company” and reach accelerated filer status.

 

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In connection with the preparation of our financial statements for the year ended December 31, 2014, we, in conjunction with our independent registered public accounting firm, identified a material weakness in the design and operating effectiveness of our internal control over financial reporting. A “material weakness” is a deficiency, or a combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be prevented or detected on a timely basis. The material weakness was primarily related to a lack of adequate review processes and controls within our accounting and finance organization and a lack of sufficient financial reporting and accounting personnel with the technical expertise to appropriately account for complex, non-routine transactions including business combinations, foreign currency transactions and derivative contracts. The material weakness resulted in post-closing adjustments to our consolidated financial statements as of and for the eleven months ended December 31, 2014. During 2015, we took certain actions that remediated the material weakness, which included hiring management-level personnel with technical accounting expertise, designing adequate review procedures in our accounting and finance organization, and identifying and implementing improved processes and controls.

Further, we are in the process of designing and implementing the system of internal control over financial reporting required to comply with our future obligations and to strengthen our overall control environment. This initiative will be time consuming, costly, and might place significant demands on our financial and operational resources, as well as our information technology systems.

Our current efforts to design and implement an effective control environment may not be sufficient to remediate or prevent future material weaknesses or significant deficiencies from occurring. A control system, no matter how well designed and operated, can provide only reasonable assurance that the control system’s objectives will be met. Moreover, any such changes do not guarantee that we will be effective in maintaining the adequacy of our internal controls, and any failure to maintain that adequacy, or consequent inability to produce accurate financial statements on a timely basis, could increase our operating costs and harm our business. Furthermore, investors’ perceptions that our internal controls are inadequate or that we are unable to produce accurate financial statements on a timely basis may harm our stock price.

Failure to comply with the U.S. Foreign Corrupt Practices Act, other applicable anti-corruption and anti-bribery laws, and applicable trade control laws could subject us to penalties and other adverse consequences.

We currently manufacture our products in China and sell our products in several countries outside of the United States. Our operations are subject to the U.S. Foreign Corrupt Practices Act (the “FCPA”), as well as the anti-corruption and anti-bribery laws in the countries where we do business. The FCPA prohibits covered parties from offering, promising, authorizing or giving anything of value, directly or indirectly, to a “foreign government official” with the intent of improperly influencing the official’s act or decision, inducing the official to act or refrain from acting in violation of lawful duty, or obtaining or retaining an improper business advantage. The FCPA also requires publicly traded companies to maintain records that accurately and fairly represent their transactions, and to have an adequate system of internal accounting controls. In addition, other applicable anti-corruption laws prohibit bribery of domestic government officials, and some laws that may apply to our operations prohibit commercial bribery, including giving or receiving improper payments to or from non-government parties, as well as so-called “facilitation” payments. In addition, we are subject to U.S. and other applicable trade control regulations that restrict with whom we may transact business, including the trade sanctions enforced by the U.S. Treasury, Office of Foreign Assets Control (OFAC).

While we have implemented policies, internal controls and other measures reasonably designed to promote compliance with applicable anti-corruption and anti-bribery laws and regulations, and certain safeguards designed to ensure compliance with U.S. trade control laws, our employees or agents may engage in improper conduct for which we might be held responsible. Any violations of these anti-corruption or trade controls laws, or even allegations of such violations, can lead to an investigation and/or enforcement action, which could disrupt our operations, involve significant management distraction, and lead to significant costs and expenses, including legal fees. If we, or our employees or agents acting on our behalf, are found to have engaged in practices that violate these laws and regulations, we could suffer severe fines and penalties, profit disgorgement, injunctions on future conduct, securities litigation, bans on transacting government business, delisting from securities exchanges and other consequences that may have a material adverse effect on our business, financial condition and results of operations. In addition, our brand and reputation, our sales activities or our stock price could be adversely affected if we become the subject of any negative publicity related to actual or potential violations of anti-corruption, anti-bribery or trade control laws and regulations.

 

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Government regulation of the Internet and e-commerce is evolving, and unfavorable changes or failure by us to comply with these regulations could substantially harm our business, financial condition and results of operations.

We are subject to general business regulations and laws as well as regulations and laws specifically governing the Internet and e-commerce. Existing and future regulations and laws could impede the growth of the Internet, e-commerce or mobile commerce. These regulations and laws may involve taxes, tariffs, privacy and data security, anti-spam, content protection, electronic contracts and communications, consumer protection, social media marketing and gift cards. It is not clear how existing laws governing issues such as property ownership, sales and other taxes and consumer privacy apply to the Internet as the vast majority of these laws were adopted prior to the advent of the Internet and do not contemplate or address the unique issues raised by the Internet or e-commerce. It is possible that general business regulations and laws, or those specifically governing the Internet or e-commerce, may be interpreted and applied in a manner that is inconsistent from one jurisdiction to another and may conflict with other rules or our practices. We cannot be sure that our practices have complied, comply or will comply fully with all such laws and regulations. Any failure, or perceived failure, by us to comply with any of these laws or regulations could result in damage to our reputation, a loss in business and proceedings or actions against us by governmental entities or others. Any such proceeding or action could hurt our reputation, force us to spend significant amounts in defense of these proceedings, distract our management, increase our costs of doing business and decrease the use of our sites by consumers and suppliers and may result in the imposition of monetary liability. We may also be contractually liable to indemnify and hold harmless third parties from the costs or consequences of non-compliance with any such laws or regulations. In addition, it is possible that governments of one or more countries may seek to censor content available on our sites or may even attempt to completely block access to our sites. Adverse legal or regulatory developments could substantially harm our business. In particular, in the event that we are restricted, in whole or in part, from operating in one or more countries, our ability to retain or increase our consumer base may be adversely affected, and we may not be able to maintain or grow our net sales and expand our business as anticipated.

Our business relies heavily on email and other messaging services, and any restrictions on the sending of emails or messages or an inability to timely deliver such communications could materially adversely affect our net revenue and business.

Our business is highly dependent upon email and other messaging services for promoting our brand, products and e-commerce platforms. We provide emails and “push” communications to inform consumers of new products, shipping specials and other promotions. We believe these messages are an important part of our consumer experience. If we are unable to successfully deliver emails or other messages to our subscribers, or if subscribers decline to open or read our messages, our net revenue and profitability would be materially adversely affected. Changes in how web and mail services block, organize and prioritize email may reduce the number of subscribers who receive or open our emails. For example, Google’s Gmail service has a feature that organizes incoming emails into categories (for example, primary, social and promotions). Such categorization or similar inbox organizational features may result in our emails being delivered in a less prominent location in a subscriber’s inbox or viewed as “spam” by our subscribers and may reduce the likelihood of that subscriber reading our emails. Actions by third parties to block, impose restrictions on or charge for the delivery of emails or other messages could also adversely impact our business. From time to time, Internet service providers or other third parties may block bulk email transmissions or otherwise experience technical difficulties that result in our inability to successfully deliver emails or other messages to consumers. Changes in the laws or regulations that limit our ability to send such communications or impose additional requirements upon us in connection with sending such communications would also materially adversely impact our business. Our use of email and other messaging services to send communications to consumers may also result in legal claims against us, which may cause us increased expenses, and if successful might result in fines and orders with costly reporting and compliance obligations or might limit or prohibit our ability to send emails or other messages. We also rely on social networking messaging services to send communications and to encourage consumers to send communications. Changes to the terms of these social networking services to limit promotional communications, any restrictions that would limit our ability or our consumers’ ability to send communications through their services, disruptions or downtime experienced by these social networking services or decline in the use of or engagement with social networking services by consumers could materially adversely affect our business, financial condition and operating results.

 

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Risks related to this offering and ownership of our common stock

Our Sponsor and J.A. Cosmetics Corp. will continue to have significant influence over us after this offering, including control over decisions that require the approval of stockholders, which could limit the ability of our other stockholders to influence matters requiring stockholder approval and could adversely affect our other stockholders.

Under our Amended Stockholders Agreement (as defined in “Certain relationships and related party transactions—Stockholders Agreement”), our Sponsor will have the right to designate up to three members of our board of directors so long as it holds at least 30% of our outstanding common stock, two members of our board of directors so long as it holds less than 30% but greater than or equal to 20% of our outstanding common stock, and one member of our board of directors so long as it holds less than 20% but greater than or equal to 5% of our outstanding common stock. Also under our Amended Stockholders Agreement, J.A. Cosmetics Corp. will have the right to designate one member of our board of directors so long as it holds at least 10% of our outstanding common stock. Together, our Sponsor’s and J.A. Cosmetics Corp.’s designees currently comprise a majority of our board of directors. In addition, our Sponsor and J.A. Cosmetics Corp. will hold approximately     % of our common stock and will beneficially own approximately     % of our common stock after the completion of this offering. Accordingly, the Sponsor and J.A. Cosmetics Corp. will continue to exert a significant degree of influence or actual control over our management, business policies and affairs and over matters requiring stockholder approval.

In addition, the Amended Stockholders Agreement will provide that for as long as our Sponsor owns or holds, directly or indirectly, at least 30% of the shares of our outstanding common stock, we must obtain the consent of our Sponsor before we or our subsidiaries are permitted to take any of the following actions:

 

  authorize, issue or enter into any agreement providing for the issuance (contingent or otherwise) of (x) any notes or debt securities with options, warrants or other rights to acquire equity securities or otherwise containing profit participation features or (y) any equity securities other than equity securities issued to employees, directors, consultants or advisors pursuant to a plan, agreement or arrangement approved by our board of directors;

 

  liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction or series of transactions;

 

  incur any indebtedness in an aggregate amount in excess of $50.0 million (other than indebtedness under the terms and provisions of the Senior Secured Credit Facility); and

 

  increase or decrease the size of our board of directors.

Until such time as our Sponsor and J.A. Cosmetics Corp. cease collectively to beneficially own more than 50% of the outstanding shares of common stock, our Sponsor will have the ability to call a special stockholder meeting, and our Sponsor and J.A. Cosmetics Corp. will have the ability to take stockholder action by written consent without calling a stockholder meeting.

Furthermore, for so long as they continue to collectively hold a majority of the outstanding voting power, our Sponsor and J.A. Cosmetics Corp. will have the ability to approve amendments to our amended and restated certificate of incorporation and bylaws and to take other actions without the vote of any other stockholder. Investors in this offering will not be able to affect the outcome of any stockholder vote during such time. As a result, our Sponsor and J.A. Cosmetics Corp. will have the ability to control all such matters affecting us, including:

 

  the composition of our board of directors and, through our board of directors, any determination with respect to our business plans and policies;

 

  any determinations with respect to mergers, acquisitions and other business combinations;

 

  our acquisition or disposition of assets;

 

  our financing activities, including the issuance of additional equity securities;

 

  determinations with respect to the enforcement of rights we may have against third parties;

 

  the payment of dividends on our common stock; and

 

  the number of shares available for issuance under our stock plans for our existing and prospective employees.

 

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This concentrated control will limit the ability of other stockholders to influence corporate matters and, as a result, we may take actions that our other stockholders do not view as beneficial. Our Sponsor and J.A. Cosmetics Corp.’s combined voting control may also discourage or block transactions involving a change of control of our company, including transactions in which you as a holder of our common stock might otherwise receive a premium for your shares over the then-current market price. For example, this concentration of ownership could have the effect of delaying or preventing a change in control or otherwise discouraging a potential acquirer from attempting to obtain control of us, which in turn could cause the market price of our common stock to decline or prevent our stockholders from realizing a premium over the market price for their common stock.

In addition, our amended and restated certificate of incorporation will provide that, until such time as our Sponsor and J.A. Cosmetics Corp. cease collectively to beneficially own more than 50% of the outstanding shares of common stock, we will not be subject to Section 203 of the Delaware General Corporation Law (the “DGCL”), which prohibits persons deemed to be interested stockholders from engaging in a business combination with a publicly-held Delaware corporation for three years following the date these persons become interested stockholders unless the business combination is, or the transaction in which the person became an interested stockholder was, approved in a prescribed manner or another prescribed exception applies. Generally, an interested stockholder is a person who, together with affiliates and associates, owns, or within three years prior to the determination of interested stockholder status did own, 15% or more of a corporation’s voting stock. Because we have elected to opt out of Section 203 of the DGCL until such time as our Sponsor and J.A. Cosmetics Corp. cease collectively to beneficially own more than 50% of the outstanding shares of common stock, generally any business combination transaction between our company and either our Sponsor or J.A. Cosmetics Corp. will not be subject to the statutory protection otherwise afforded under Section 203 of the DGCL subject to prescribed exceptions.

Moreover, our Sponsor and J.A. Cosmetics Corp. are not prohibited from selling a controlling interest in us to a third party and may do so without your approval and without providing for a purchase of your shares of common stock. Accordingly, your shares of common stock may be worth less than they would be if our Sponsor and J.A. Cosmetics Corp. did not maintain voting control over us.

For additional information about our relationship with our Sponsor and J.A. Cosmetics Corp., please see “Certain relationships and related party transactions” elsewhere in this prospectus.

Our amended and restated certificate of incorporation will contain provisions renouncing our interest and expectation to participate in certain corporate opportunities identified by or presented to our Sponsor.

Our Sponsor and its affiliates may engage in activities similar to our lines of business or have an interest in the same areas of corporate opportunities as we do. Our amended and restated certificate of incorporation will provide that our Sponsor and its affiliates will not have any duty to refrain from (i) engaging, directly or indirectly, in the same or similar business activities or lines of business as us, including those business activities or lines of business deemed to be competing with us or (ii) doing business with any of our clients, customers or vendors. In the event that our Sponsor or any of its affiliates acquires knowledge of a potential business opportunity which may be a corporate opportunity for us, they will have no duty to communicate or offer such corporate opportunity to us. Our amended and restated certificate of incorporation will also provide that, to the fullest extent permitted by law, neither our Sponsor nor any of its affiliates will be liable to us, for breach of any fiduciary duty or otherwise, by reason of the fact that our Sponsor or any of its affiliates direct such corporate opportunity to another person, or otherwise does not communicate information regarding such corporate opportunity to us, and we will waive and renounce any claim that such business opportunity constituted a corporate opportunity that should have been presented to us. In addition, any member of our board of directors designated by our Sponsor pursuant to the Amended Stockholders Agreement may consider both the interests of our Sponsor and our Sponsor’s obligations under the Amended Stockholders Agreement in exercising such board member’s powers, rights and duties as a director of our company. The Amended Stockholders Agreement will contain similar provisions with respect to corporate opportunities as the provisions in our amended and restated certificate of incorporation described above. These potential conflicts of interest could have a material adverse effect on our business, results of operations, financial condition and prospects if attractive business opportunities are allocated by our Sponsor to itself, its affiliates or third parties instead of to us. See “Description of capital stock—Corporate opportunities.”

 

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We will incur increased costs and become subject to additional regulations and requirements as a result of becoming a newly public company, and our management will be required to devote substantial time to new compliance matters.

As a public company, we will incur significant legal, accounting and other expenses that we did not incur as a private company. We will be subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which will require, among other things, that we file with the SEC annual, quarterly and current reports with respect to our business and financial condition. In addition, the Sarbanes-Oxley Act, as well as rules subsequently adopted by the SEC and the stock exchange on which our securities are listed to implement provisions of the Sarbanes-Oxley Act, impose significant requirements on public companies, including requiring establishment and maintenance of effective disclosure and financial controls and changes in corporate governance practices. Further, pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the SEC has adopted additional rules and regulations in these areas, such as mandatory “say-on-pay” voting requirements that will apply to us when we cease to be an emerging growth company. Stockholder activism, the current political environment and the current high level of government intervention and regulatory reform may lead to substantial new regulations and disclosure obligations, which may lead to additional compliance costs and impact the manner in which we operate our business in ways we cannot currently anticipate.

We expect the rules and regulations applicable to public companies to substantially increase our legal and financial compliance costs and to make some activities more time-consuming and costly. If these requirements divert the attention of our management and personnel from other business concerns, they could have a material adverse effect on our business, financial condition and results of operations. The increased costs will decrease our net income or increase our net loss, and may require us to reduce costs in other areas of our business or increase the prices of our products or services. For example, we expect these rules and regulations to make it more difficult and more expensive for us to obtain director and officer liability insurance, and we may be required to incur substantial costs to maintain the same or similar coverage. We cannot predict or estimate the amount or timing of additional costs we may incur to respond to these requirements. The impact of these requirements could also make it more difficult for us to attract and retain qualified persons to serve on our board of directors, our board committees or as executive officers. Furthermore, if we are unable to satisfy our obligations as a public company, we could be subject to delisting of our common stock, fines, sanctions and other regulatory action and potentially civil litigation.

There may not be an active trading market for shares of our common stock, which may cause shares of our common stock to trade at a discount from the initial offering price and make it difficult to sell the shares of common stock you purchase.

Prior to this offering, there has not been a public trading market for shares of our common stock. It is possible that after this offering an active trading market will not develop or continue. If an active trading market is developed, it may not be sustained, which would make it difficult for you to sell your shares of common stock at an attractive price or at all. The initial public offering price per share of common stock will be determined by agreement among us, the selling stockholders and the representatives of the underwriters and may not be indicative of the price at which shares of our common stock will trade in the public market after this offering. The market price of our common stock may decline below the initial offering price, and you may not be able to sell your shares of our common stock at or above the price you paid in this offering, or at all.

The market price of shares of our common stock may be volatile, which could cause the value of your investment to decline.

Even if a trading market develops, the market price of our common stock may be highly volatile and could be subject to wide fluctuations. Securities markets often experience significant price and volume fluctuations. This market volatility, as well as general economic, market or political conditions, could reduce the market price of shares of our common stock in spite of our operating performance. In addition, our results of operations could be below the expectations of public market analysts and investors due to a number of potential factors, including variations in our quarterly results of operations, additions or departures of key management personnel, changes in consumer preferences or cosmetic trends, announcements of new products or significant price reductions by our competitors, failure to meet analysts’ earnings estimates, publication of research reports about our industry, litigation and government investigations, changes or proposed changes in laws or regulations or differing interpretations or enforcement thereof affecting our business, adverse market reaction to any indebtedness we may incur or securities we may issue in the future, changes in market valuations of similar companies or speculation in the press or investment community, announcements by our competitors of significant contracts, acquisitions,

 

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dispositions, strategic partnerships, joint ventures or capital commitments, adverse publicity about our industry, the level of success of releases of new products and the number of stores we open, close or convert in any period, and in response the market price of shares of our common stock could decrease significantly. You may therefore be unable to resell your shares of common stock at or above the initial public offering price.

In the past, following periods of volatility in the overall market and the market price of a company’s securities, securities class action litigation has often been instituted against these companies. This litigation, if instituted against us, could result in substantial costs and a diversion of our management’s attention and resources.

Because we have no current plans to pay cash dividends on our common stock, you may not receive any return on investment unless you sell your common stock for a price greater than that which you paid for it.

We have no current plans to pay cash dividends on our common stock. The declaration, amount and payment of any future dividends will be at the sole discretion of our board of directors. Our board of directors may take into account general and economic conditions, our financial condition and results of operations, our available cash and current and anticipated cash needs, capital requirements, contractual, legal, tax and regulatory restrictions and implications on the payment of dividends by us to our stockholders or by our subsidiaries to us, including restrictions under the Senior Secured Credit Facility, the Second Lien Credit Facility and other indebtedness we may incur, and such other factors as our board of directors may deem relevant.

You may be diluted by the future issuance of additional common stock in connection with our incentive plans, acquisitions or otherwise.

After this offering we will have approximately          million shares of common stock authorized but unissued. Our amended and restated certificate of incorporation to become effective immediately prior to the consummation of this offering authorizes us to issue these shares of common stock and options relating to common stock for the consideration and on the terms and conditions established by our board of directors in its sole discretion, whether in connection with acquisitions or otherwise. We have reserved shares for issuance under the 2014 Plan, the 2016 Plan and the ESPP. See “Executive compensation.” Any common stock that we issue, including under the 2014 Plan, the 2016 Plan, the ESPP or other equity incentive plans that we may adopt in the future, would dilute the percentage ownership held by the investors who purchase common stock in this offering.

Future sales, or the perception of future sales, by us or our existing stockholders in the public market following this offering could cause the market price for our common stock to decline.

The sale of substantial amounts of shares of our common stock in the public market, or the perception that such sales could occur, including sales by our Sponsor, could harm the prevailing market price of shares of our common stock. These sales, or the possibility that these sales may occur, also might make it more difficult for us to sell equity securities in the future at a time and at a price that we deem appropriate. Upon completion of this offering we will have a total of          shares of our common stock outstanding. Of the outstanding shares, the          shares sold or issued in this offering (or          shares if the underwriters exercise their over-allotment option to purchase additional shares) will be freely tradable without restriction or further registration under the Securities Act of 1933, as amended, or Securities Act, except that any shares held by our affiliates, as that term is defined under Rule 144 of the Securities Act, may be sold only in compliance with the limitations described in “Shares eligible for future sale.”

The remaining outstanding          shares of common stock held by our existing owners after this offering will be subject to certain restrictions on resale. We, our executive officers, directors and all our existing stockholders, including the selling stockholders, will sign lock-up agreements with the underwriters that will, subject to certain customary exceptions, restrict the sale of the shares of our common stock and certain other securities held by them for 180 days following the date of this prospectus. J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC may, in their sole discretion and at any time without notice, release all or any portion of the shares or securities subject to any such lock-up agreements. See “Underwriting” for a description of these lock-up agreements.

Upon the expiration of the lock-up agreements described above, all of such          shares (or          shares if the underwriters exercise their over-allotment option to purchase additional shares in full) will be eligible for resale in a public market, subject, in the case of shares held by our affiliates, to volume, manner of sale and other limitations under Rule 144. We expect that our Sponsor will be considered an affiliate 180 days after this offering based on their expected share ownership (consisting of          shares), as well as their participation on our board of directors. Certain other of our stockholders will also be considered affiliates at that time.

 

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After giving effect to this offering, the holders of             shares of our common stock, or     % of our outstanding common stock based on shares outstanding after the completion of this offering, will be entitled to rights with respect to registration of such shares under the Securities Act pursuant to a registration rights agreement. In addition, each of our Sponsor, J.A. Cosmetics Corp. and certain family trusts of our Chief Executive Officer Tarang Amin will have the right, subject to certain conditions, to require us to file registration statements covering its or their shares or to include its or their shares in other registration statements that we may file. Please see “Certain relationships and related party transactions—Registration rights.”

In addition, we intend to file one or more registration statements on Form S-8 under the Securities Act to register shares of our common stock or securities convertible into or exchangeable for shares of our common stock issued pursuant to the 2014 Plan, the 2016 Plan and the ESPP. Any such Form S-8 registration statements will automatically become effective upon filing. Accordingly, shares registered under such registration statements will be available for sale in the open market. We expect that the initial registration statement on Form S-8 will cover          shares of our common stock.

As restrictions on resale end, the market price of our shares of common stock could drop significantly if the holders of these restricted shares sell them or are perceived by the market as intending to sell them. These factors could also make it more difficult for us to raise additional funds through future offerings of our shares of common stock or other securities.

Anti-takeover provisions in our organizational documents and Delaware law might discourage or delay acquisition attempts for us that you might consider favorable.

Our amended and restated certificate of incorporation and amended and restated bylaws to become effective immediately prior to the consummation of this offering will contain provisions that may make the acquisition of our company more difficult without the approval of our board of directors. Among other things:

 

  although we do not have a stockholder rights plan, these provisions would allow us to authorize the issuance of undesignated preferred stock in connection with a stockholder rights plan or otherwise, the terms of which may be established and the shares of which may be issued without stockholder approval, and which may include super voting, special approval, dividend or other rights or preferences superior to the rights of the holders of common stock;

 

  these provisions provide for a classified board of directors with staggered three-year terms;

 

  these provisions require advance notice for nominations of directors by stockholders, subject to the Amended Stockholders Agreement, and for stockholders to include matters to be considered at our annual meetings;

 

  these provisions prohibit stockholder action by written consent after such time as our Sponsor and J.A. Cosmetics Corp. cease collectively to beneficially own (directly or indirectly) more than 50% of the voting power of the outstanding shares of our common stock (the “Trigger Event”);

 

  these provisions provide for the removal of directors only for cause and only upon affirmative vote of holders of at least 75% of the shares of common stock entitled to vote generally in the election of directors from and after the Trigger Event; and

 

  these provisions require the amendment of certain provisions only by the affirmative vote of at least 75% of the shares of common stock entitled to vote generally in the election of directors from and after the Trigger Event.

Further, as a Delaware corporation, we are also subject to provisions of Delaware law, which may impair a takeover attempt that our stockholders may find beneficial, provided that we will not be subject to Section 203 of the DGCL until after such time as the Trigger Event occurs. See “Description of capital stock—Delaware anti-takeover statute.” These anti-takeover provisions and other provisions under Delaware law could discourage, delay or prevent a transaction involving a change in control of our company, including actions that our stockholders may deem advantageous, or negatively affect the trading price of our common stock. These provisions could also discourage proxy contests and make it more difficult for you and other stockholders to elect directors of your choosing and to cause us to take other corporate actions you desire.

We are an emerging growth company, and we cannot be certain if the reduced disclosure requirements applicable to emerging growth companies will make our common stock less attractive to investors.

We qualify as an emerging growth company as defined in the JOBS Act. As a result, we are permitted to, and intend to, rely on exemptions from certain disclosure requirements that are applicable to other companies that are not emerging growth

 

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companies. Accordingly, we have included compensation information for only our four most highly compensated executive officers and have not included a compensation discussion and analysis of our executive compensation programs in this prospectus. In addition, for so long as we are an emerging growth company, we will not be required to:

 

  engage an independent registered public accounting firm to report on our internal controls over financial reporting pursuant to Section 404(b) of the Sarbanes-Oxley Act;

 

  comply with any requirement that may be adopted by the PCAOB, regarding mandatory audit firm rotation or a supplement to the independent registered public accounting firm’s report providing additional information about the audit and the financial statements (i.e., an auditor discussion and analysis);

 

  submit certain executive compensation matters to stockholder advisory votes, such as “say-on-pay,” “say-on-frequency” and “say-on-golden parachutes;” or

 

  disclose certain executive compensation related items such as the correlation between executive compensation and performance and comparisons of the chief executive officer’s compensation to median employee compensation.

We may remain an emerging growth company until the fiscal year-end following the fifth anniversary of the completion of this initial public offering, though we may cease to be an emerging growth company earlier under certain circumstances, including (i) if we become a large accelerated filer, (ii) if our gross revenue exceeds $ 1.0 billion in any fiscal year or (iii) if we issue more than $ 1.0 billion in non-convertible notes in any three-year period.

The exact implications of the JOBS Act are still subject to interpretations and guidance by the SEC and other regulatory agencies, and we cannot assure you that we will be able to take advantage of all of the benefits of the JOBS Act. In addition, investors may find our common stock less attractive if we rely on the exemptions and relief granted by the JOBS Act. If some investors find our common stock less attractive as a result, there may be a less active trading market for our common stock and our stock price may decline and/or become more volatile.

Our board of directors is authorized to issue and designate shares of our preferred stock in additional series without stockholder approval.

Our amended and restated certificate of incorporation authorizes our board of directors, without the approval of our stockholders, to issue          million shares of our preferred stock, subject to limitations prescribed by applicable law, rules and regulations and the provisions of our amended and restated certificate of incorporation, as shares of preferred stock in series, to establish from time to time the number of shares to be included in each such series and to fix the designation, powers, preferences and rights of the shares of each such series and the qualifications, limitations or restrictions thereof. The powers, preferences and rights of these additional series of preferred stock may be senior to or on parity with our common stock, which may reduce its value.

Our management will have broad discretion over the use of the proceeds we receive in this offering and might not apply the proceeds in ways that increase the value of your investment.

We estimate that net proceeds of the sale of the common stock that we are offering will be approximately $          million. Our management will have broad discretion to use our net proceeds from this offering, and you will be relying on the judgment of our management regarding the application of these proceeds. Our management might not apply the net proceeds of this offering in ways that increase the value of your investment. Our management might not be able to yield any return on the investment and use of these net proceeds. You will not have the opportunity to influence our decisions on how to use the proceeds.

If securities analysts do not publish research or publish inaccurate or unfavorable research about our business, our stock price and trading volume could decline.

The trading market for our common stock depends in part on the research and reports that securities or industry analysts publish about us or our business. If one or more of the analysts who cover us downgrade our stock or publish inaccurate or unfavorable research about our business, our stock price would likely decline. If one or more of these analysts cease coverage of our company or fail to publish reports on us regularly, demand for our stock could decrease, which might cause our stock price and trading volume to decline.

 

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Our amended and restated certificate of incorporation and amended and restated bylaws will provide that the Court of Chancery of the State of Delaware will be the exclusive forum for substantially all disputes between us and our stockholders, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers or employees.

Our amended and restated certificate of incorporation and amended and restated bylaws will provide that the Court of Chancery of the State of Delaware is the exclusive forum for any derivative action or proceeding brought on our behalf, any action asserting a breach of fiduciary duty, any action asserting a claim against us arising pursuant to the Delaware General Corporation Law, our amended and restated certificate of incorporation or our amended and restated bylaws, or any action asserting a claim against us that is governed by the internal affairs doctrine. This provision may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or our directors, officers or other employees, which may discourage such lawsuits against us and our directors, officers and other employees. Alternatively, if a court were to find this provision in our amended and restated certificate of incorporation and amended and restated bylaws to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving such action in other jurisdictions, which could adversely affect our business, financial condition and results of operations.

You will suffer immediate and substantial dilution in the net tangible book value of the common stock you purchase.

The initial public offering price of our common stock is substantially higher than the pro forma as adjusted net tangible book value per share of our outstanding common stock immediately after the completion of this offering. Purchasers of common stock in this offering will experience immediate dilution of approximately $          per share, assuming an initial public offering price of $          per share, the midpoint of the price range set forth on the cover of this prospectus. In the past, we issued options to acquire common stock at prices significantly below the initial public offering price. To the extent these outstanding options are ultimately exercised, investors purchasing common stock in this offering will sustain further dilution. For a further description of the dilution that you will experience immediately after this offering, see “Dilution.”

 

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Special note regarding forward-looking statements

This prospectus includes forward-looking statements that reflect our current views with respect to, among other things, our operations and financial performance. These forward-looking statements are included throughout this prospectus, including in the sections entitled “Prospectus summary,” “Risk factors,” “Management’s discussion and analysis of financial condition and results of operations” and “Business” and relate to matters such as our industry, business strategy, goals and expectations concerning our market position, future operations, margins, profitability, capital expenditures, liquidity and capital resources and other financial and operating information. We have used the words “anticipate,” “assume,” “believe,” “continue,” “could,” “estimate,” “expect,” “foreseeable,” “future,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “seek,” “will” and similar terms and phrases to identify forward-looking statements in this prospectus.

The forward-looking statements contained in this prospectus are based on management’s current expectations and are subject to uncertainty and changes in circumstances. We cannot assure you that future developments affecting us will be those that we have anticipated. Actual results may differ materially from these expectations due to changes in global, regional or local economic, business, competitive, market, regulatory and other factors, many of which are beyond our control. We believe that these factors include but are not limited to those described under “Risk factors.” These factors should not be construed as exhaustive and should be read in conjunction with the other cautionary statements that are included in this prospectus. Should one or more of these risks or uncertainties materialize, or should any of our assumptions prove incorrect, our actual results may vary in material respects from those projected in these forward-looking statements.

Any forward-looking statement made by us in this prospectus speaks only as of the date of this prospectus. Factors or events that could cause our actual results to differ may emerge from time to time, and it is not possible for us to predict all of them. We may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements, and you should not place undue reliance on our forward-looking statements. Our forward-looking statements do not reflect the potential impact of any future acquisitions, mergers, dispositions, joint ventures, investments or other strategic transactions we may make. We undertake no obligation to publicly update or review any forward-looking statement, whether as a result of new information, future developments or otherwise, except as may be required by any applicable securities laws.

 

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Trademarks, trade names and service marks

This prospectus includes our trademarks, trade names and service marks, such as “e.l.f.,” “eyes lips face” and “play beautifully,” as well as the e.l.f. logo, which are protected under applicable intellectual property laws and are our property. This prospectus also contains trademarks, trade names and service marks of other companies, which are the property of their respective owners. Solely for convenience, trademarks, trade names and service marks referred to in this prospectus may appear without the ® , TM or SM symbols, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights or the right of the applicable licensor to these trademarks, trade names and service marks. We do not intend our use or display of other parties’ trademarks, trade names or service marks to imply, and such use or display should not be construed to imply, a relationship with, or endorsement or sponsorship of us by, these other parties.

 

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Use of proceeds

We estimate that the net proceeds from the sale of          shares of common stock that we are selling in this offering will be approximately $          million at an assumed initial public offering price of $          per share (the midpoint of the range set forth on the cover of this prospectus), after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us. If the underwriters exercise their option to purchase additional shares in full, we estimate that net proceeds will be approximately $          million after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us. We will not receive any proceeds from the sale of shares of our common stock by the selling stockholders in this offering.

Each $ 1.00 increase (decrease) in the assumed initial public offering price of $          per share (the midpoint of the range set forth on the cover of this prospectus) would increase (decrease) the net proceeds to us from this offering, after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us, by approximately $          million, assuming that the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same. We may also increase or decrease the number of shares we are offering. An increase (decrease) of 1,000,000 in the number of shares we are offering would increase (decrease) the net proceeds to us from this offering, after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us, by approximately $          million, assuming the assumed initial public offering price stays the same. The pro forma as adjusted information is illustrative only, and we will adjust this information based on the actual initial public offering price and other terms of this offering determined at pricing. We do not expect that a change in the offering price or the number of shares by these amounts would have a material effect on our intended uses of the net proceeds from this offering, although it may affect the amount of time prior to which we may need to seek additional capital.

We currently expect to use $          million of our net proceeds from this offering to repay existing indebtedness and any proceeds remaining thereafter will be used for working capital and general corporate purposes. The interest rates on our existing indebtedness under the Term Loan Facility and the Second Lien Term Loan were 6.25% and 11%, respectively, as of June 30, 2016. The maturity date of each of the Term Loan Facility and the Revolving Credit Facility is January 31, 2019, and the maturity date of the Second Lien Term Loan is July 31, 2019. On June 7, 2016, we entered into an amendment to our Senior Secured Credit Facility, pursuant to which we incurred an additional $ 64.0 million of indebtedness under the Term Loan Facility to fund, in part, the payment of the $ 72.0 million special dividend to stockholders, as described under “Dividend policy.”

Our management will retain broad discretion over the use of the net proceeds from this offering. The amounts and timing of our expenditures will depend upon numerous factors.

Pending the use of the proceeds from this offering, we intend to invest the net proceeds in interest-bearing, investment-grade securities, certificates of deposit or government securities.

 

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Dividend policy

On June 7, 2016, our board of directors declared a special dividend to our preferred stockholders participating on an as-converted basis and our common stockholders in an amount equal to $ 4.93 per share of common stock (approximately $ 72.0 million in the aggregate). Holders of restricted common stock received a dividend of $ 4.1 million, which offset outstanding employee notes receivable. Prior to this dividend, we had never declared or paid cash dividends on our capital stock.

We intend to retain all available funds and any future earnings, if any, to fund the development and expansion of our business and we do not anticipate paying any additional cash dividends in the foreseeable future. In addition, our Senior Secured Credit Facility and Second Lien Credit Facility limit our ability to pay dividends to our stockholders.

Any future determination related to dividend policy will be made at the discretion of our board of directors and will depend on a number of factors, including future earnings, capital requirements, financial conditions, future prospects, contractual restrictions and covenants and other factors that our board of directors may deem relevant.

 

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Capitalization

The following table sets forth our cash and cash equivalents and capitalization as of June 30, 2016, on:

 

  an actual basis;

 

  on a pro forma basis to give effect to: (i) the conversion of all outstanding shares of our convertible preferred stock into an aggregate of 13,504,123.5 shares of common stock immediately prior to the consummation of this offering and (ii) the filing and effectiveness of our amended and restated certificate of incorporation, which will occur immediately prior to the consummation of this offering; and

 

  on a pro forma as adjusted basis to give further effect to the sale of                  shares of common stock in this offering at an assumed initial public offering price of $          per share (the midpoint of the range set forth on the cover of this prospectus), after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us.

You should read this table together with “Prospectus summary—Summary consolidated financial data,” “Selected consolidated financial data,” “Management’s discussion and analysis of financial condition and results of operations,” “Underwriting” and our audited consolidated financial statements and unaudited condensed consolidated financial statements and the related notes included elsewhere in this prospectus. The following table reflects a     -for-     forward stock split of our common stock to be effected prior to the effectiveness of the registration statement of which this prospectus forms a part.

 

      Successor  
     As of June 30, 2016  
(dollars in thousands, except share and per share amounts)    Actual     Pro forma      Pro forma as
adjusted
 

 

 

Balance sheet data:

       

Cash and cash equivalents

   $ 3,763      $                    $                
  

 

 

 

Capital lease obligations(1)

     2,938        

Bank debt, including current portion:

       

Senior Secured Credit Facility(2)

     163,430        

Second Lien Term Loan

     40,000        

Less: debt issuance costs

     (2,711     
  

 

 

 

Total bank debt(3)

     200,719        
  

 

 

 

Total debt, net of issuance costs

     203,657        
  

 

 

 

Convertible preferred stock, par value of $ 0.01 per share; 200,000 shares authorized, 135,041 shares issued and outstanding, actual; no shares authorized, issued and outstanding, pro forma and pro forma as adjusted

     262,385        

Stockholders’ deficit

       

Preferred stock, par value of $ 0.01 per share; no shares authorized, issued and outstanding, actual; 30,000,000 shares authorized, no shares issued and outstanding, pro forma and pro forma as adjusted

            

Common stock, par value of $ 0.01 per share; 5,000,000 shares authorized; 1,126,256 shares issued and outstanding, actual; 250,000,000 shares authorized, 14,630,379.5 shares issued and outstanding, pro forma; 250,000,000 shares authorized,              shares issued and outstanding, pro forma as adjusted

     3        

Additional paid-in capital

     1,045        

Employee loan receivable

     (6,390     

Accumulated deficit

     (193,443     
  

 

 

 

Total stockholders’ deficit

     (198,785     
  

 

 

 

Total capitalization

   $ 267,257      $                    $                

 

 

 

(1)   In connection with the transition of a warehouse and distribution center from New Jersey to California, we entered into certain capital leases during the six months ended June 30, 2016. The capital leases are primarily related to equipment and fixtures required to prepare the new facility for use.

 

(2)   As of June 30, 2016, the Senior Secured Credit Facility consisted of a $ 169.0 million term loan and a $ 25.0 million revolving line of credit. As of June 30, 2016, there were borrowings of $ 2.0 million and an undrawn letter of credit of $ 0.2 million outstanding under the revolving line of credit.

 

(3)   Total bank debt is presented net of debt issuance costs which have been recorded as a reduction to the gross carrying amount on the consolidated balance sheets.

 

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Dilution

If you invest in our common stock in this offering, your interest will be immediately diluted to the extent of the difference between the initial public offering price per share of our common stock in this offering and the net tangible book value per share of our common stock after this offering. As of June 30, 2016, we had a historical net tangible book deficit of $ 473 million, or $ 420.15 per share of common stock. Our net tangible book deficit represents total tangible assets less total liabilities and convertible preferred stock, all divided by the number of shares of common stock outstanding on June 30, 2016. Our pro forma net tangible book deficit as of June 30, 2016, before giving effect to this offering, was $ 211 million, or $ 14.41 per share of our common stock. Pro forma net tangible book value, before the issuance and sale of shares in this offering, gives effect to:

 

  the conversion of all outstanding shares of our convertible preferred stock into an aggregate of 13,504,123.5 shares of common stock immediately prior to the consummation of this offering;

 

  a     -for-     forward stock split of our common stock to be effected prior to the effectiveness of the registration statement of which this prospectus forms a part; and

 

  the filing and effectiveness of our amended and restated certificate of incorporation, which will occur immediately prior to the consummation of this offering.

After giving effect to the sale of shares of common stock by us in this offering at an assumed initial public offering price of $          per share (the midpoint of the range set forth on the cover of this prospectus) and after deducting the estimated underwriting discounts and commissions and estimated offering expenses, our pro forma as adjusted net tangible book value as of June 30, 2016 would have been approximately $          million, or $          per share. This represents an immediate increase in pro forma as adjusted net tangible book value of $          per share to existing stockholders and an immediate dilution of $          per share to new investors. The following table illustrates this per share dilution:

 

Assumed initial public offering price per share

        

Historical net tangible book deficit per share as of June 30, 2016

   $ 420.15   

Pro forma decrease in net tangible book deficit per share

     405.74   

Pro forma net tangible book deficit per share as of June 30, 2016

     14.41   

Increase in pro forma net tangible book deficit per share attributable to new investors

  

Pro forma as adjusted net tangible book value per share after this offering

  
  

 

 

 

Dilution per share to new investors participating in this offering

  

 

 

A $ 1.00 increase (decrease) in the assumed initial public offering price of $          per share (the midpoint of the range set forth on the cover of this prospectus) would increase (decrease) our pro forma as adjusted net tangible book value as of June 30, 2016 after this offering by approximately $          million, or approximately $          per share, and would decrease (increase) dilution to investors in this offering by approximately $          per share, assuming that the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same, after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us. We may also increase or decrease the number of shares we are offering. An increase (decrease) of 1,000,000 in the number of shares we are offering would increase (decrease) our pro forma as adjusted net tangible book value as of June 30, 2016 after this offering by approximately $          million, or approximately $          per share, and would decrease (increase) dilution to investors in this offering by approximately $          per share, assuming the assumed initial public offering price per share remains the same, after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us. The pro forma as adjusted information is illustrative only, and we will adjust this information based on the actual initial public offering price and other terms of this offering determined at pricing.

If the underwriters fully exercise their option to purchase additional shares, pro forma as adjusted net tangible book value after this offering would increase to approximately $          per share, and there would be an immediate dilution of approximately $          per share to new investors.

To the extent that outstanding options with an exercise price per share that is less than the pro forma as adjusted net tangible book value per share, before giving effect to the issuance and sale of shares in this offering, are exercised, new investors will experience further dilution. In addition, we may choose to raise additional capital due to market conditions or

 

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strategic considerations even if we believe we have sufficient funds for our current or future operating plans. To the extent that we raise additional capital through the sale of equity or convertible debt securities, the issuance of these securities could result in further dilution to our stockholders.

The following table shows, as of June 30, 2016, on a pro forma as adjusted basis, after giving effect to the pro forma adjustments described above, the number of shares of common stock purchased from us, the total consideration paid to us and the average price paid per share by existing stockholders and by new investors purchasing common stock in this offering at an assumed initial public offering price of $          per share (the midpoint of the range set forth on the cover of this prospectus), before deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us (in thousands, except share and per share amounts and percentages):

 

      Shares purchased      Total consideration      Average
price per

share
 
      Number      Percent      Amount      Percent     

Existing stockholders

        %       $                      %       $                

Investors participating in this offering

              
  

 

 

    

Total

        100%       $           100%       $     

 

 

The number of shares of common stock to be outstanding after this offering is based on the number of shares outstanding as of June 30, 2016 and excludes the following:

 

  1,737,763 shares of common stock issuable upon exercise of stock options outstanding as of June 30, 2016 under our 2014 Equity Plan, at a weighted average exercise price of $ 5.55 per share (as adjusted for the special dividend declared on June 7, 2016 as described under “Dividend policy”);

 

  573,729 shares of common stock reserved as of June 30, 2016 for future issuance under our 2014 Equity Plan;

 

                   shares of common stock reserved for issuance pursuant to future awards under the 2016 Plan, as well as any automatic increases in the number of shares of our common stock reserved for future issuance under this plan, which will become effective immediately prior to the consummation of this offering; and

 

                   shares of common stock reserved for issuance pursuant to future awards under the ESPP, as well as any automatic increases in the number of shares of our common stock reserved for future issuance under this plan, which will become effective immediately prior to the consummation of this offering.

Sales by the selling stockholders in this offering will cause the number of shares held by existing stockholders to be reduced to                 shares or     % of the total number of shares of our common stock outstanding after this offering. If the underwriters’ overallotment option is exercised in full, the number of shares held by the existing stockholders after this offering would be reduced to     % of the total number of shares of our common stock outstanding after this offering, and the number of shares held by new investors would increase to     or     % of the total number of shares of our common stock outstanding after this offering.

 

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Unaudited pro forma condensed financial information

The unaudited pro forma condensed financial information presented below has been derived from e.l.f. Beauty, Inc.’s historical consolidated financial statements appearing elsewhere in this prospectus, and gives effect to the following transactions (collectively the “Transactions”):

 

  incurrence of an incremental $ 64 million in borrowings to fund, in part, the payment of a $ 72 million dividend to stockholders (the “Dividend recapitalization”);

 

  the conversion of all of our outstanding shares of convertible preferred stock into an aggregate of 13,504,123.5 shares of common stock immediately prior to the consummation of this offering, the acceleration of vesting on certain time-based vesting options that will become exercisable immediately prior to this offering and the acceleration of certain performance-based awards, for which the performance condition will have been met upon consummation of this offering, and may become exercisable shortly after completion of this offering, assuming achievement of a minimum rate of return (the “IPO-related transactions”); and

 

  the issuance of                 shares of common stock in this offering and the application of $          million of the net proceeds from the sale of such shares (assuming the midpoint of the price range set forth on the cover page of this prospectus) to repay certain indebtedness as described in “Use of proceeds” (the “IPO transactions”).

The unaudited pro forma condensed balance sheet gives effect to the Transactions as if they occurred on June 30, 2016. The unaudited pro forma condensed statements of operations for the year ended December 31, 2015 and the six months ended June 30, 2016, gives effect to the Transactions as if they occurred on January 1, 2015.

The historical financial statements have been adjusted in the unaudited pro forma condensed financial information to give effect to pro forma events that are (i) directly attributable to the Transactions; (ii) factually supportable; and (iii) with respect to the unaudited pro forma condensed statements of operations, expected to have a continuing impact on the combined results.

The unaudited pro forma condensed financial information is provided for illustrative purposes only and does not purport to represent what the actual consolidated results of operations or the consolidated financial position of e.l.f. Beauty, Inc. would have been had the Transactions occurred on the dates assumed, nor is it necessarily indicative of future consolidated results of operations or consolidated financial position. The unaudited pro forma condensed financial information should be read in conjunction with the consolidated financial statements of e.l.f. Beauty, Inc. included elsewhere in this prospectus.

 

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e.l.f. Beauty, Inc. and subsidiaries

Unaudited pro forma condensed balance sheet

As of June 30, 2016

(in thousands)

 

     Historical(1)                                    Pro forma  
     June 30,
2016
    Dividend
recapitalization(2)
    IPO-related
transactions(3)
         IPO
transactions(4)
         June 30,
2016
 

Assets

             

Current assets:

             

Cash

  $ 3,763      $      $        $        $ 3,763   

Accounts receivable, net

    21,611                                 21,611   

Inventory

    32,371                                 32,371   

Prepaid expenses and other current assets

    10,574                                 10,574   
 

 

 

 

Total current assets

    68,319                                 68,319   

Property and equipment, net

    14,281                                 14,281   

Intangible assets, net

    117,144                                 117,144   

Goodwill

    157,264                                 157,264   

Deferred tax assets

    262                                 262   

Other assets

    1,719                                 1,719   
 

 

 

 

Total assets

  $ 358,989      $      $        $        $ 358,989   
 

 

 

 

Liabilities, convertible preferred stock and stockholders’ deficit

             

Current liabilities:

             

Current portion of long-term debt and capital lease obligations

  $ 6,583      $      $        $      4a   $ 6,583   

Accounts payable

    21,470                             4b     21,470   

Accrued expense and other current liabilities

    15,079                             4b     15,079   

Foreign currency forward contracts

    5,417                                 5,417   
 

 

 

 

Total current liabilities

    48,549                                 48,549   

Long-term debt and capital lease obligations

    197,074                             4a     197,074   

Deferred tax liabilities

    40,215               (1,515   3b              38,700   

Other long-term liabilities

    9,551                                 9,551   
 

 

 

 

Total liabilities

    295,389          (1,515                293,874   

Convertible preferred stock

    262,385               (262,385   3a                
                  

Stockholders’ deficit:

                  

Common stock

    3               135      3a          4c     138   

Additional paid-in capital

    1,045               266,580      3a, 3b          4c     267,625   

Employee loan receivable

    (6,390                              (6,390

Accumulated deficit

    (193,443            (2,815   3b              (196,258
 

 

 

 

Total stockholders’ deficit

    (198,785            263,900                   65,115   
 

 

 

 

Total liabilities and shareholders’ equity

  $ 358,989      $      $        $        $ 358,989   

 

 

See accompanying notes to the unaudited pro forma condensed financial information.

 

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e.l.f. Beauty, Inc. and subsidiaries

Unaudited pro forma condensed statement of operations

For the six months ended June 30, 2016

(in thousands, except share and per share data)

 

     Historical(1)                                        Pro forma  
    

Six months ended
June 30, 2016

   

Dividend
recapitalization(2)

          

IPO-related
transactions(3)

   

IPO
transactions(4)

          

Six months ended
June 30, 2016

 

Net sales

  $ 96,820                               $ 96,820   

Cost of sales

    42,383                                 42,383   
 

 

 

 

Gross profit

    54,437                                 54,437   

Selling, general and administrative expenses

    47,804                                 47,804   
 

 

 

 

Operating income

    6,633                                 6,633   

Other income (expense), net

    1,964                                 1,964   

Interest expense

    (6,396     (2,000     2a                      4d        (8,396
 

 

 

 

Income (loss) before provision for income taxes

    2,201        (2,000                       201   

(Provision) benefit for income taxes

    (1,112     700        2c                      4e        (412
 

 

 

 

Net income (loss)

  $ 1,089      $ (1,300                     $ (211
 

 

 

 

Net income (loss) per share—basic(5)

  $ (553.18                                

Net income (loss) per share—diluted(5)

  $ (553.18                                

Weighted average number of shares outstanding—basic(5)

    235,967                                   

Weighted average number of shares outstanding—diluted(5)

    235,967                                   

 

 

See accompanying notes to the unaudited pro forma condensed financial information.

 

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e.l.f. Beauty, Inc. and subsidiaries

Unaudited pro forma condensed statement of operations

For the year ended December 31, 2015

(in thousands, except share and per share data)

 

     Historical(1)                                               Pro forma  
     Year ended
December 31,
2015
    Dividend
recapitalization(2)
           IPO-related
transactions(3)
           IPO
transactions(4)
           Year ended
December 31,
2015
 

Net sales

  $ 191,413                                 $ 191,413   

Cost of sales

    91,084                                   91,084   
 

 

 

 

Gross profit

    100,329                                   100,329   

Selling, general and administrative expenses

    74,758                                   74,758   
 

 

 

 

Operating income

    25,571                                   25,571   

Other income (expense), net

    (4,172                                (4,172

Interest expense

    (12,721     (4,644     2b                        4d        (17,365
 

 

 

 

Income (loss) before provision for income taxes

    8,678        (4,644                         4,034   

(Provision) benefit for income taxes

    (4,321     1,625        2c               4e               4e        (2,696
 

 

 

 

Net income (loss)

  $ 4,357      $ (3,019                       $ 1,338   
 

 

 

 

Net income (loss) per share—basic(5)

  $ (4,304                                  

Net income (loss) per share—diluted(5)

  $ (4,304                                  

Weighted average number of shares outstanding—
basic(5)

    11,062                                     

Weighted average number of shares outstanding—diluted(5)

    11,062                                     

 

 

 

 

See accompanying notes to the unaudited pro forma condensed financial information.

 

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Notes to the unaudited pro forma condensed financial information

1. Basis of presentation

The unaudited pro forma condensed financial information was prepared in accordance with U.S. GAAP and pursuant to U.S. Securities and Exchange Commission Regulation S-X Article 11, and presents the pro forma financial position and results of operations of the Transactions based upon historical information after giving effect to adjustments described in these Notes to the Unaudited Pro Forma Condensed Financial Information. An unaudited pro forma condensed balance sheet as of June 30, 2016 is presented as if the Transactions had occurred on June 30, 2016. The unaudited pro forma condensed statements of operations for the year ended December 31, 2015 and for the six months ended June 30, 2016 are presented as if the Transactions had occurred on January 1, 2015.

2. Dividend recapitalization

Unaudited pro forma condensed balance sheet

The impact of the Dividend recapitalization is reflected in the condensed consolidated balance sheet as of June 30, 2016. Therefore, the June 30, 2016 unaudited pro forma condensed balance sheet presented herein does not require further adjustment.

Unaudited pro forma condensed statement of operations

 

a.   This adjustment reflects the impact of the incremental borrowings on interest expense for the six months ended June 30, 2016, as computed below:

 

Aggregate $ 206 million debt interest expense(1)

   $ 7,461   

Amortization of debt issuance costs associated with aggregate term loan

     839   

Adminstrative and other costs

     96   
  

 

 

 

Total pro forma interest expense

     8,396   

Less: actual interest expense for the period

     6,396   
  

 

 

 

Net pro forma adjustment to interest expense

   $ 2,000   

 

 

 

  (1)   Does not reflect the impact of scheduled amortization payments. A 1/8% change in the interest rate would change our interest expense for the six-month period by $ 0.1 million.

 

b.   This adjustment reflects the impact of the incremental borrowings on interest expense for the year ended December 31, 2015, as computed below:

 

   

Pro forma interest expense components:

  

Aggregate $ 212 million debt interest expense(1)

   $ 15,535   

Amortization of debt issuance costs associated with aggregate debt

     1,714   

Adminstrative and other costs

     116   
  

 

 

 

Total pro forma interest expense

     17,365   

Less: actual interest expense for the period

     12,721   
  

 

 

 

Net pro forma adjustment to interest expense

   $ 4,644   

 

 

 

  (1)   Does not reflect the impact of scheduled amortization payments. A 1/8% change in the interest rate would change our annual interest expense by $ 0.3 million.

 

c.   To record the tax effects associated with the pro forma adjustments by applying a 35% federal statutory rate.

 

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3. IPO-related transactions

Unaudited pro forma condensed balance sheet

 

a.   To record the conversion of all of our outstanding shares of convertible preferred stock into an aggregate of 13,504,123.5 shares of common stock immediately prior to the consummation of this offering.

 

b.   To record the unrecognized compensation cost related to certain time-based vesting awards for which vesting will be accelerated immediately prior to the consummation of this offering and certain performance-based awards, for which satisfaction of the performance condition will have been met upon consummation of this offering. The acceleration of vesting will result in a $ 4.3 million increase to additional paid-in capital, a $ 1.5 million decrease to deferred tax liabilities and the recognition of a $ 2.8 million charge in accumulated deficit.

Unaudited pro forma condensed statements of operations

The unaudited pro forma condensed statements of operations for the year ended December 31, 2015 and the six months ended June 30, 2016, have not been adjusted to reflect the incremental stock-based compensation expense of $ 3.4 million and $ 2.8 million, respectively, net of tax, related to the acceleration of vesting of certain time-based vesting awards and satisfaction of the performance condition of certain performance-based awards, as these amounts are expected to have a one-time impact on net income (loss) in the twelve months following the Transactions.

4. IPO transactions

Unaudited pro forma condensed balance sheet

The unaudited pro forma condensed balance sheet reflects the IPO transactions, specifically the pro forma effects of the issuance of             shares of common stock and the application of $             million of the net proceeds from the sale of such shares to repay certain indebtedness as described in “Use of proceeds” as if these events had occurred on June 30, 2016, as follows:

 

a.   To record the repayment of $             million of outstanding debt with proceeds from this offering, of which $             million is classified as current and $             million is classified as long-term.

 

b.   To record the accrued interest payment of $             million related to the repayment of the outstanding debt.

 

c.   To record (i) the issuance of            shares of common stock to repay $             million of outstanding debt and (ii) the deduction of the underwriting discounts and commissions

Unaudited pro forma condensed statements of operations

 

d.   To record the $             million and $             million decrease to interest expense for the year ended December 31, 2015 and the six months ended June 30, 2016, respectively, related to the application of $             million of the net proceeds from the offering to repay outstanding debt.

 

e.   To record the tax effects associated with the pro forma adjustments by applying a 35% federal statutory rate.

 

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5. Pro forma basic and diluted net income (loss) per share:

Pro forma basic and diluted net income (loss) per share is computed as follows:

 

      Year ended
December 31, 2015
     Six months ended
June 30, 2016
 

Numerator:

     

Pro forma net income

     

Less: incremental interest on debt

     
  

 

 

 

Pro forma net income available to common shareholders

     

Denominator:

     

Basic:

     

Weighted-average number of shares outstanding—Basic

     11,062         235,967   

Add: Weighted-average effect of conversion of convertible preferred stock

     13,504,123         13,504,123   

Add: Common shares offered hereby to fund the dividend in excess of earnings

     
  

 

 

 

Pro forma weighted average number of shares outstanding—Basic

     
  

 

 

 

Diluted:

     

Pro forma weighted average number of shares outstanding—Basic

     

Weighted average effect of dilutive securities:

     
  

 

 

 

Pro forma weighted average number of shares outstanding—Diluted

     
  

 

 

 

Pro forma net income (loss) per share:

     

Basic

     

Diluted

     

Anti-dilutive securities excluded from pro forma diluted EPS:

     

Service-based stock options

               

Total

               

 

 

Notes:

Assumes the conversion of preferred stock occurred as of the beginning of the period.

 

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Selected consolidated financial data

The following table presents our selected consolidated financial data for the periods and as of the dates indicated. The periods prior to and including January 31, 2014 include all of the accounts of e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.) and its subsidiaries and are referred to in the following table as “Predecessor,” and all periods after January 31, 2014 include all of the accounts of e.l.f. Beauty, Inc. and its subsidiaries and are referred to in the following table as “Successor.” The selected consolidated financial data as of December 31, 2014 and 2015, and for the period from January 1, 2014 through January 31, 2014, the period from February 1, 2014 through December 31, 2014 and the year ended December 31, 2015, has been derived from the audited consolidated financial statements included elsewhere in this prospectus. The selected consolidated financial data as of June 30, 2016, and for the six months ended June 30, 2015 and 2016, has been derived from our unaudited condensed consolidated financial statements included elsewhere in this prospectus. Our unaudited condensed consolidated financial statements were prepared on a basis consistent with our audited consolidated financial statements and include, in management’s opinion, all normal recurring adjustments necessary for fair presentation of the financial information set forth in those statements. The selected consolidated financial data for the years ended December 31, 2012 and 2013 have been derived from the Predecessor’s audited consolidated financial statements which are not included in this prospectus and is presented in order to provide a reconciliation from net income to Adjusted EBITDA for these periods.

You should read the following financial information together with the information under “Capitalization” and “Management’s discussion and analysis of financial condition and results of operations” and our consolidated financial statements and the related notes included elsewhere in this prospectus.

 

     Predecessor            Successor     Unaudited
pro forma
combined(1)
    Successor  
(dollars in thousands, except
share and per share amounts)
  Period from
January 1,
2014
through
January 31,
2014
           Period from
February 1,
2014
through
December 31,
2014
    Year ended
December 31,
2014
    Year ended
December 31,
2015
    Six
months
ended
June 30,
2015
    Six
months
ended
June 30,
2016
 
 

Statement of operations data:

               

Net sales

  $ 9,810          $ 135,134      $ 144,944      $ 191,413      $ 75,194      $ 96,820   

Gross profit

    4,772            61,450        67,496        100,329        39,298        54,437   

Operating income

    1,727            5,347        16,119        25,571        8,130        6,633   

Other income (expense), net

    36            (6,633     (6,597     (4,172     3,254        1,964   

Interest expense

    (128         (11,545     (12,546     (12,721     (6,281     (6,396

Income (loss) before provision for income taxes

    1,635            (12,831     (3,024     8,678        5,103        2,201   

(Provision) benefit for income taxes

    (542         3,545        143        (4,321     (2,425     (1,112

Net income (loss)

  $ 1,093          $ (9,286   $ (2,881   $ 4,357      $ 2,678      $ 1,089   

Net income (loss) per share—basic

  $ 1,093          $ (1,957   $ (1,413   $ (4,304   $ (320   $ (553

Net income (loss) per share—diluted

  $ 1,088          $ (1,957   $ (1,413   $ (4,304   $ (320   $ (553

Weighted average number of shares outstanding—basic

    1,000            10,000        10,000        11,062        10,000        235,967   

Weighted average number of shares outstanding—diluted

    1,005            10,000        10,000        11,062        10,000        235,967   
 

Other data:

               

EBITDA(2)

    1,804            6,658        18,190        31,688        15,980        14,827   

Adjusted EBITDA(2)

    2,087            26,013        28,100        46,178        16,300        19,964   

Adjusted EBITDA margin

    21.3%            19.2%        19.4%        24.1%        21.7%        20.6%   

Depreciation and amortization

    41            7,944        8,668        10,289        4,595        6,230   

Capital expenditures

    19            1,597        1,616        10,242        3,649        2,910   

 

 

 

(1)  

For the purpose of performing a comparison to the Successor’s year ended December 31, 2015, we have prepared Unaudited Pro Forma Combined Supplemental Financial Information for the year ended December 31, 2014, which gives effect to the acquisition of 100% of the outstanding shares of capital stock of the Predecessor by the Successor, as if it had occurred on January 1, 2014. The Unaudited Pro Forma Combined 2014 Period is being discussed herein for informational purposes only and does not reflect any operating efficiencies or potential cost savings that may result from the consolidation of operations. See “Management’s discussion and analysis of financial conditions and results of

 

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operations—Recent transactions and basis of presentation” for a description of the adjustments made in preparing the Unaudited Pro Forma Combined 2014 Period.

 

(2)   EBITDA represents net income (loss) plus interest expense, provision (benefit) for income taxes and depreciation and amortization. Adjusted EBITDA represents EBITDA further adjusted to exclude the impact of other items that management does not believe are reflective of the Company’s ongoing operations (comprising transaction-related expenses incurred in connection with the acquisition of the Predecessor, the restructuring of our operations, including warehouse transition and reorganization of our operations in China, and the preparation for our initial public offering), stock-based compensation expense, management fees paid to our Sponsor, costs associated with e.l.f. stores incurred prior to the store opening (including legal-related costs, rent and occupancy expenses, marketing and other store operating supply expenses), costs associated with securing additional distribution space (including slotting expense, freight and certain costs related to installation of fixtures), costs related to the evaluation of an acquisition in 2014, certain non-cash losses and write-offs, and gains and losses on our foreign currency contracts as reflected in the reconciliation below.

We present EBITDA and Adjusted EBITDA because our management uses these as supplemental measures in assessing our operating performance, and we believe they are helpful to investors, securities analysts and other interested parties in evaluating the performance of companies in our industry. We also believe EBITDA and Adjusted EBITDA are useful to management and investors, securities analysts and other interested parties as measures of our comparative operating performance from period to period. EBITDA and Adjusted EBITDA are not measurements of financial performance under GAAP. They should not be considered as alternatives to cash flow from operating activities, as measures of liquidity, or as alternatives to net income as a measure of our operating performance or any other measures of performance derived in accordance with GAAP. In addition, EBITDA and Adjusted EBITDA should not be construed as an inference that our future results will be unaffected by unusual or non-recurring items. EBITDA and Adjusted EBITDA have limitations as analytical tools, and you should not consider such measures either in isolation or as substitutes for analyzing our results as reported under GAAP. Our definitions and calculations of EBITDA and Adjusted EBITDA are not necessarily comparable to other similarly titled measures used by other companies due to different methods of calculation.

The following table provides a reconciliation of EBITDA and Adjusted EBITDA to net income (loss):

 

     Predecessor            Successor     Unaudited
pro forma
combined
    Successor  
(dollars in thousands)   Year ended
December 31,
2012
    Year ended
December 31,
2013
    Period from
January 1,
2014
through
January 31,
2014
           Period from
February 1,
2014
through
December 31,
2014
    Year ended
December 31,
2014
    Year ended
December 31,
2015
    Six
months
ended
June 30,
2015
    Six
months
ended
June 30,
2016
 

Net income (loss)

  $ 9,897      $ 16,555      $ 1,093          $ (9,286   $ (2,881   $ 4,357      $ 2,678      $ 1,089   

Interest expense

    610        1,637        128            11,545        12,546        12,721        6,281        6,396   

Provision (benefit) for income taxes

    6,275        9,211        542            (3,545     (143     4,321        2,425        1,112   

Depreciation and amortization

    395        538        41            7,944        8,668        10,289        4,595        6,230   
 

 

 

       

 

 

 

EBITDA

  $ 17,177      $ 27,941      $ 1,804          $ 6,658      $ 18,190      $ 31,688      $ 15,980      $ 14,827   

Transaction-related expenses(a)

           194        63            9,759        94        705        579          

Cost related to “restructuring” of operations(b)

                             370        370        1,595        420        3,844   

Initial public offering preparation costs

                                           1,144        318        395   

Stock-based compensation

           26                   287        287        503        197        1,155   

Management fee(c)

    233        250                   775        775        854        350        475   

Pre-opening costs(d)

           118        15            180        195        64        59        229   

Customer expansion
costs(e)

                                           1,191        879        350   

Other miscellaneous
items(f)

                             1,104        1,104        530                 

Unrealized losses (gains) on foreign currency contracts(g)

                  205            6,880        7,085        7,904        (2,482     (1,311
 

 

 

       

 

 

 

Adjusted EBITDA

  $ 17,410      $ 28,529      $ 2,087          $ 26,013      $ 28,100      $ 46,178      $ 16,300      $ 19,964   
                                                                         

 

  (a)   Represents transaction-related expenses related to the acquisition of the Predecessor.

 

  (b)   Represents costs associated with the restructuring of our operations, including warehouse transition and reorganization of our operations in China.

 

  (c)   Represents management fees paid to our Sponsor.

 

  (d)   Represents costs associated with e.l.f. stores incurred prior to the store opening, including legal-related costs, rent and occupancy expenses, marketing and other store operating supply expenses.

 

  (e)   Represents costs associated with securing additional distribution space, including slotting expense, freight and certain costs related to installation of fixtures.

 

  (f)   Represents costs related to evaluation of an acquisition in 2014 as well as other non-cash losses and write-offs.

 

  (g)   Represents non-cash (gains) / losses on our foreign currency contracts.

 

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      Successor  
     As of December 31,     As of June 30,  
(dollars in thousands)    2014     2015     2016  

Balance sheet data:

      

Cash and cash equivalents

   $ 4,668      $ 14,004      $ 3,763   

Net working capital(3)

     23,218        10,860        16,007   

Property and equipment, net

     2,125        9,854        14,281   

Total assets

     354,178        361,072        358,989   

Total bank debt, including current maturities(4)

     148,424        144,919        203,657   

Total liabilities

     222,656        224,175        295,389   

Convertible preferred stock

     145,328        197,295        262,385   

Total stockholders’ deficit

     (13,806     (60,398     (198,785

 

 

 

(3)   Net working capital is defined as current assets, excluding cash and cash equivalents, minus current liabilities.

 

(4)   Total bank debt, including current maturities is net of $ 4.3 million, $ 3.2 million and $ 2.7 million of debt issuance costs as of December 31, 2014, December 31, 2015 and June 30, 2016, respectively.

 

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Management’s discussion and analysis of financial condition and results of operations

You should read the following discussion and analysis of our financial condition and results of operations together with “Selected consolidated financial data” and our consolidated financial statements and related notes included elsewhere in this prospectus. This discussion and analysis and other parts of this prospectus contain forward-looking statements that reflect our current plans, expectations, estimates and beliefs that involve risks, uncertainties and assumptions, such as statements regarding our plans, objectives, expectations, intentions and projections. Our actual results and the timing of selected events may differ materially from those discussed in these forward-looking statements. You should carefully read the “Risk factors” section of this prospectus to gain an understanding of the important factors that could cause actual results to differ materially from our forward-looking statements. Please also see the sections entitled “Special note regarding forward-looking statements” and “Industry and market data.”

Overview

We are one of the fastest growing, most innovative cosmetics companies in the United States. Driven by our mission to make luxurious beauty accessible for all women to play beautifully, we have challenged the traditional belief that quality cosmetics are only available at high prices in select channels. e.l.f. offers high-quality, prestige-inspired beauty products for eyes, lips and face at extraordinary value, with the majority of our items retailing for $ 6 or less. Our price points encourage trial and experimentation, while our commitment to quality and a differentiated consumer engagement model engender loyalty among a passionate and vocal group of consumers. We have built an authentic brand and a company with strong growth, margins and cash flow from operations.

We believe our success is rooted in our innovation process and ability to build direct consumer relationships. Born as an e-commerce company over a decade ago, we have created a modern consumer engagement and responsive innovation model that keeps our products on-trend and our consumers engaged as brand ambassadors. Our consumers provide us with real-time feedback through reviews and social media, which enables us to refine and augment our product portfolio in response to their needs. We leverage our fast-cycle product development and asset-light supply chain to launch high-quality products in as few as 20 weeks from concept, and 27 weeks on average. Our products are first launched on elfcosmetics.com, and distribution is generally only broadened to our retail customers after we receive strong consumer validation online. We believe this has led to our consistently strong productivity at retail.

We sell our products in national and international retailers (with international primarily serviced by distributors) and direct-to-consumer channels, which include e-commerce and e.l.f. stores. We currently sell our products in approximately 19,000 retail stores in the United States across mass, drug store, food and specialty retail channels. Our largest customers, Walmart, Target and CVS, accounted for 28%, 23% and 10%, respectively, of our net sales in 2015. National and international retailers comprised 87% of our total net sales in 2015. The remaining 13% came from our direct-to-consumer channels, the substantial majority of which was comprised of e-commerce, with the balance from e.l.f. stores. We believe the combination of our affordable price points and on-trend, innovative product assortment encourages trial, offers a strong value proposition and appeals to a broad base of consumers. By combining our strong relationships with leading retailers with integrated consumer engagement across our e.l.f. stores, e-commerce and social media, we are a true multi-channel brand.

The primary market for our products is the United States, which accounted for 93% of our net sales in 2015 and 94% of our net sales for the six months ended June 30, 2016. The remaining 7% and 6% were attributable to international markets. e.l.f. products are sold in a number of international markets, including Australia, Canada and France.

Components of our results of operations and trends affecting our business

Net sales

We develop, market and sell cosmetic products under the e.l.f. brand through national retailers, e-commerce and our e.l.f. stores. Our net sales are derived from sales of cosmetic products, net of provisions for sales discounts and allowances, product returns, markdowns and price adjustments.

Our growth in net sales is driven by a number of trends, including the broader economic environment, levels of consumer spending, and increasing awareness of and demand for our products. Within our existing national retailers, we are able to drive growth by growing space allocation and increasing sales per linear foot, supported by our continued innovation, including our ability to introduce new first-to-mass products in our existing categories and new products in adjacent

 

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categories such as skin care. While we have distribution with a number of key retail accounts, we expect to continue to grow through increased penetration into additional stores within existing accounts as well as the addition of new retail customers and retail stores.

These factors have fueled our growth at a faster rate than the overall cosmetics industry. However, our results of operations and business face challenges and uncertainties, including our ability to introduce new products that will appeal to a broad consumer base, our ability to service demand, the ability of our major retail customers to keep products in stock, our ability to continue to grow our customer base and competitive threats from other cosmetics companies.

Gross profit

Gross profit is our net sales less cost of sales. Cost of sales reflects the aggregate costs to procure our products, including the amounts invoiced by our third-party contractors for finished goods as well as costs related to transportation to our distribution center, customs and duties. Cost of sales also includes the effect of changes in the balance of reserves for excess and obsolete inventory and the write-off of inventory not previously reserved. Gross margin measures our gross profit as a percentage of net sales.

We have an extensive network of third-party manufacturers in China where we purchase finished goods. Over the past two years, we have worked to evolve our supply chain to increase capacity and technical capabilities while maintaining or reducing overall costs as a percentage of sales.

Over the past year, we have improved our gross margin largely through changes in pricing, our product mix, purchasing efficiencies and cost reductions in our supply chain, and expect to continue leveraging our innovation and sourcing capabilities to drive increased margin in future periods.

Selling, general and administrative

Our selling, general and administrative (“SG&A”) expenses primarily consist of personnel-related expenses, including salaries, bonuses, fringe benefits and stock-based compensation. Prior to our initial public offering, our stock-based compensation is highly impacted by the changes in the estimated value of our common stock. See “Critical accounting policies and estimates—Stock-based compensation” for more detail regarding stock-based compensation. Other significant SG&A expenses include warehousing, freight, advertising, professional fees for accounting, auditing, consulting and legal services, travel and overhead expenses, depreciation and amortization of intangible assets.

SG&A expenses have increased over the past year, primarily driven by investments in headcount and investment in our corporate infrastructure to support our continued scale and growth, partially offset by leveraging the balance of our general overhead expenses at a slower pace than net sales.

In the near term, we expect SG&A expense to increase as we invest to support our growth initiatives, including investments in the e.l.f. brand and infrastructure as well as the expansion of our e.l.f. store and international footprints. After the consummation of this offering, there will also be an increase in our SG&A expenses as a result of the additional reporting and compliance costs associated with being a public company. Over time, we expect our SG&A expenses to grow at a slower rate than our net sales growth as we leverage our past investments.

Interest expense

Interest expense primarily consists of cash interest and fees on our outstanding indebtedness. See “Financial condition, liquidity and capital resources” and ‘‘Description of indebtedness.’’

Other income

Our purchases are largely in Chinese renminbi (“RMB”), and, as such, we are exposed to periodic fluctuations in that currency. While we do not have an active hedging program, we have a number of legacy exchange rate forward contracts that are in the process of runoff. We do not follow hedge accounting, and therefore the periodic impact of these legacy hedging activities is calculated on a mark-to-market basis. Other income is primarily driven by fluctuations in the exchange rate in the RMB to the U.S. dollar.

 

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Provision for income taxes

The provision for income taxes represents federal, foreign, state and local income taxes. The effective rate differs from statutory rates due to the effect of state and local income taxes, tax rates in foreign jurisdictions and certain nondeductible expenses. Our effective tax rate will change from quarter to quarter based on recurring and nonrecurring factors including, but not limited to, the geographical mix of earnings, enacted tax legislation, state and local income taxes, tax audit settlements and the interaction of various tax strategies.

Net income (loss)

Our net income for future periods will be affected by the various factors described above.

Recent transactions and basis of presentation

On January 31, 2014, e.l.f. Beauty, Inc. (the “Successor”) acquired 100% of the outstanding shares of capital stock of e.l.f. Cosmetics, Inc. (the “Predecessor” and the “Acquisition”). Accordingly, the accompanying consolidated financial statements presented elsewhere in this prospectus as of and for the years ended December 31, 2014 and 2015 reflect periods both prior and subsequent to the Acquisition. The consolidated financial statements for December 31, 2014 and December 31, 2015 are presented separately for the Predecessor period from January 1, 2014 through January 31, 2014 (the “Predecessor 2014 Period”), the Successor period from February 1, 2014 through December 31, 2014 (the “Successor 2014 Period”) and the year ended December 31, 2015 (the “Successor 2015 Period”), with the periods prior to the Acquisition being labeled as Predecessor and the periods subsequent to the Acquisition labeled as Successor. The financial position and results of the Successor reflect the application of purchase accounting in accordance with Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) Topic 805, Business Combinations (“ASC 805”) .

For the purpose of performing a comparison to the Successor 2015 Period, we have prepared Unaudited Pro Forma Combined Supplemental Financial Information for the year ended December 31, 2014, which gives effect to the Acquisition as if it had occurred on January 1, 2014 (the “Unaudited Pro Forma Combined 2014 Period”). The Unaudited Pro Forma Combined 2014 Period discussed herein has been prepared in accordance with Article 11 of Regulation S-X, does not purport to represent what our actual consolidated results of operations would have been had the Acquisition actually occurred on January 1, 2014, nor is it necessarily indicative of future consolidated results of operations. The Unaudited Pro Forma Combined 2014 Period is being discussed herein for informational purposes only and does not reflect any operating efficiencies or potential cost savings that may result from the consolidation of operations.

 

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In preparing the Unaudited Pro Forma Combined 2014 Period, we combined the Predecessor 2014 Period and Successor 2014 Period and adjusted the historical results within these periods to give effect to pro forma events that are (i) directly attributable to the Acquisition; (ii) factually supportable; and (iii) expected to have a continuing impact on the combined financial results. The pro forma adjustments made to give effect to the Acquisition, as if it had occurred on January 1, 2014, are summarized in the table below:

 

     Predecessor                   Successor            Unaudited
pro forma
combined
 
(dollars in thousands)   Period from
January 1, 2014
through
January 31, 2014
                  Period from
February 1, 2014
through
December 31, 2014
    Pro forma
adjustments
    Year ended
December 31, 2014
 
 

Statement of operations data:

             

Net sales

  $ 9,810            $ 135,134      $      $ 144,944   

Cost of sales

    5,038              73,684        (1,274 )(a)      77,448   
 

 

 

         

 

 

 

Gross profit

    4,772              61,450        1,274        67,496   

Selling, general and administrative expenses

    3,045              56,103        (7,771 )(b)(d)      51,377   
 

 

 

         

 

 

 

Operating income

    1,727              5,347        9,045        16,119   

Other income (expense), net

    36              (6,633            (6,597

Interest expense

    (128           (11,545     (873 )(c)      (12,546
 

 

 

         

 

 

 

Loss before provision for income taxes

    1,635              (12,831     8,172        (3,024

(Provision) benefit for income taxes

    (542           3,545        (2,860 )(e)      143   
 

 

 

         

 

 

 

Net income (loss)

  $ 1,093            $ (9,286   $ 5,312      $ (2,881

 

 

 

(a)   Represents the exclusion of $ 1.3 million in non-recurring charges recorded in cost of sales from the fair value step-up on inventory related to the Acquisition.

 

(b)   Represents $ 0.7 million in incremental amortization expense within SG&A related to intangible assets recorded at the time of the Acquisition.

 

(c)   Represents $ 0.9 million in incremental net interest expense related to new financing facilities.

 

(d)   Represents the exclusion of non-recurring items that were directly related to the Acquisition and did not have a continuing impact on the combined pro forma results, including $ 5.4 million in compensation expense recorded within SG&A associated with a change in control payment to a former employee and $ 3.1 million in transaction costs recorded within SG&A, including professional fees.

 

(e)   Represents $ 2.9 million in incremental tax expense based on statutory rates and associated with the pro forma adjustments.

As the Predecessor and Successor have the same accounting policies, no conforming accounting policy adjustments were necessary. Nor were any reclassifications necessary to conform the Predecessor’s historical financial statements presentation to that of the Successor.

Seasonality

Our results of operations are subject to seasonal fluctuations, with net sales in the third and fourth fiscal quarters typically being higher than in the first and second fiscal quarters. The higher net sales in our third and fourth fiscal quarters are largely attributable to the increased levels of purchasing by retailers for the holiday season, and adverse events that occur during the third or fourth quarter could have a disproportionate effect on our results of operations for the entire fiscal year. As a result of higher sales during the third and fourth quarters, our working capital needs are greater during the second and third quarters of the fiscal year. Fluctuations throughout the year are also driven by the timing of product restocking or rearrangement by our major customers as well as our expansion into new customers. Because a limited number of our retail customers account for a large percentage of our net sales, a change in the order pattern of one or more of our large retail customers could cause a significant fluctuation of our quarterly results or reduce our liquidity.

 

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Results of operations

The following table sets forth our consolidated statements of operations data in dollars and as a percentage of net sales for the periods presented:

 

     Predecessor            Successor     Unaudited
pro forma
combined
    Successor  
(dollars in thousands, except percentages)   Period from
January 1,
2014 through
January 31,
2014
           Period from
February 1,
2014 through
December 31,
2014
    Year ended
December 31,
2014
    Year ended
December 31,
2015
    Six
months
ended
June 30,
2015
    Six
months
ended
June 30,
2016
 
 

Statement of operations data:

               

Net sales

  $ 9,810          $ 135,134      $ 144,944      $ 191,413      $ 75,194      $ 96,820   

Cost of sales

    5,038            73,684        77,448        91,084        35,896        42,383   
 

 

 

       

 

 

 

Gross profit

    4,772            61,450        67,496        100,329        39,298        54,437   

Selling, general and administrative expenses

    3,045            56,103        51,377        74,758        31,168        47,804   
 

 

 

       

 

 

 

Operating income

    1,727            5,347        16,119        25,571        8,130        6,633   

Other income (expense), net

    36            (6,633     (6,597     (4,172     3,254        1,964   

Interest expense

    (128         (11,545     (12,546     (12,721     (6,281     (6,396
 

 

 

       

 

 

 

Income (loss) before provision for income taxes

    1,635            (12,831     (3,024     8,678        5,103        2,201   

(Provision) benefit for income taxes

    (542         3,545        143        (4,321     (2,425     (1,112
 

 

 

       

 

 

 

Net income (loss)

  $ 1,093          $ (9,286   $ (2,881   $ 4,357      $ 2,678      $ 1,089   

 

 
                                           
     Predecessor            Successor     Unaudited
pro forma
combined
    Successor  
     Period from
January 1,
2014 through
January 31,
2014
           Period from
February 1,
2014 through
December 31,
2014
    Year ended
December 31,
2014
    Year ended
December 31,
2015
    Six
months
ended
June 30,
2015
    Six
months
ended
June 30,
2016
 
 
               

% of net sales

               

Net sales

    100%            100%        100%        100%        100%        100%   

Cost of sales

    51%            55%        53%        48%        48%        44%   
 

 

 

       

 

 

 

Gross profit

    49%            45%        47%        52%        52%        56%   

Selling, general and administrative expenses

    31%            42%        35%        39%        41%        49%   
 

 

 

       

 

 

 

Operating income

    18%            4%        11%        13%        11%        7%   

Other income (expense), net

    0%            (5%     (5%     (2%     4%        2%   

Interest expense

    (1%         (9%     (9%     (7%     (8%     (7%
 

 

 

       

 

 

 

Income (loss) before provision for income taxes

    17%            (9%     (2%     5%        7%        2%   

Provision for income taxes

    (6%         3%        0%        (2%     (3%     (1%
 

 

 

       

 

 

 

Net income (loss)

    11%            (7%     (2%     2%        4%        1%   
                                                         

Comparison of six months ended June 30, 2016 to six months ended June 30, 2015

Net sales

Net sales increased $ 21.6 million, or 29%, to $ 96.8 million for the six months ended June 30, 2016, from $ 75.2 million for the six months ended June 30, 2015. The increase was primarily driven by growth in existing national retailers due to expanding space allocation and improved productivity as well as the full-year impact of the establishment of new retailer relationships during 2015.

Gross profit

Gross profit increased $ 15.1 million, or 39%, to $ 54.4 million for the six months ended June 30, 2016, compared to $ 39.3 million for the six months ended June 30, 2015. Increased volume accounted for $ 11.3 million of the increase in gross profit,

 

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with the remaining $ 3.8 million primarily attributable to favorable sales mix changes and cost improvements. Gross margin improved from 52% for the six months ended June 30, 2015 to 56% for the six months ended June 30, 2016, primarily as a result of favorable sales mix changes and cost improvements.

Selling, general and administrative expenses

SG&A expenses were $ 47.8 million for the six months ended June 30, 2016, up $ 16.6 million, or 53%, from $ 31.2 million for the six months ended June 30, 2015. SG&A expenses as a percentage of net sales increased to 49% in the six months ended June 30, 2016 from 41% in the six months ended June 30, 2015. The increase was primarily a result of higher warehouse and distribution costs related to the relocation of our distribution center from New Jersey to California, additional investments in sales and marketing to support growth, higher information technology costs to support infrastructure improvements and increased costs related to preparation for our initial public offering, such as professional fees and additions to headcount.

Other income (expense), net

Other income decreased $ 1.3 million from $ 3.3 million for the six months ended June 30, 2015 to $ 2.0 million for the six months ended June 30, 2016. Favorable exchange rate changes resulted in positive mark-to-market adjustments on our foreign currency forward contracts in each period. The decrease in other income is primarily attributable to the reduction in the notional value of our outstanding forward contracts during the six months ended June 30, 2016 as compared to the six months ended June 30, 2015.

Interest expense

Interest expense increased $ 0.1 million, or 2%, to $ 6.4 million for the six months ended June 30, 2016, compared to $ 6.3 million for the six months ended June 30, 2015. This increase was due to incremental borrowings under our Term Loan Facility related to the June 2016 Dividend recapitalization, partially offset by lower borrowings under our Revolving Credit Facility.

Net income (loss)

As a result of the factors above, net income decreased $ 1.6 million to $ 1.1 million for the six months ended June 30, 2016, compared to $ 2.7 million for the six months ended June 30, 2015.

Comparison of the Successor 2015 Period to the Successor 2014 Period, the Predecessor 2014 Period and the Unaudited Pro Forma Combined Period for the year ended December 31, 2014

The results of operations discussion herein focuses on the comparison of the Successor 2015 Period to the Successor 2014 Period, the Predecessor 2014 Period and the Unaudited Pro Forma Combined 2014 Period.

We believe that a discussion of results of operations for the Predecessor 2014 Period and the Successor 2014 Period on a standalone basis is not meaningful as the Acquisition was accounted for as a business combination in accordance with ASC 805, and the resulting new basis of accounting is reflected in the Company’s consolidated financial statements for all periods beginning on or after January 31, 2014, and therefore, the two periods are not comparable. Except for the specific pro forma adjustments made to arrive at the Unaudited Pro Forma Combined 2014 Period, the underlying drivers for the change in 2015 as compared to 2014, both actual 2014 results and the Unaudited Pro Forma Combined 2014 Period results, are the same. We believe that the comparison of the Successor 2015 Period to the Unaudited Pro Forma Combined 2014 Period provides for a more meaningful discussion of the 2015 and 2014 results of operations for potential investors and users of the financial statements.

Net sales

Net sales were $ 191.4 million for the Successor 2015 Period, as compared to $ 135.1 million for the Successor 2014 Period and $ 9.8 million for the Predecessor 2014 Period. This represents a 32% increase as compared to the Unaudited Pro Forma Combined 2014 Period. This increase was fairly evenly attributable to expanding space allocation within our existing national retailers and the establishment of additional distribution space through new retailer relationships.

 

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Gross profit

As compared to the Unaudited Pro Forma Combined 2014 Period, gross profit increased $ 32.8 million, or 49%, to $ 100.3 million for the Successor 2015 Period. Increased volume accounted for $ 21.6 million of the increase in gross profit, with the remaining $ 11.2 million primarily attributable to favorable sales mix changes. Gross margin improved from 47% for the Unaudited Pro Forma Combined 2014 Period to 52% for the Successor 2015 Period, primarily as a result of favorable sales mix changes in sales to national retailers.

Selling, general and administrative expenses

SG&A expenses were $ 74.8 million for the Successor 2015 Period, compared to $ 56.1 million for the Successor 2014 Period and $ 3.0 million for the Predecessor 2014 Period. SG&A expenses increased $ 23.4 million, or 46%, as compared to the Unaudited Pro Forma Combined 2014 Period. As a percentage of net sales, SG&A expenses increased from 35% in the Unaudited Pro Forma Combined 2014 Period to 39% in 2015. The increase was primarily driven by additions to our headcount and bonus incentives, increased warehouse and distribution costs to support revenue growth and incremental marketing and e-commerce costs primarily related to expenditures to support incremental traffic to our e-commerce site.

Other income (expense), net

Other income (expense) was $ (4.2 million) for the Successor 2015 Period, compared to $ (6.6 million) for the Successor 2014 Period and $ 36,000 for the Predecessor 2014 Period. The decrease in expense was primarily due to a $ 2.8 million reduction in unrealized losses on forward currency contracts and a $ 3.3 million decrease in transaction losses on foreign currency denominated payables, offset by a $ 3.7 million increase in realized losses related to settlement of forward currency contracts. These fluctuations are the result of the volatility in the currency exchange market for the RMB as the U.S. dollar strengthened versus the RMB in the respective periods, particularly in the third and fourth quarters of 2015.

Interest expense

Interest expense was $ 12.7 million for the Successor 2015 Period, as compared to $ 11.5 million for the Successor 2014 Period and $ 0.1 million for the Predecessor 2014 Period. This increase was due to the new credit facilities entered into as of January 31, 2014 as well as additional borrowings under our Revolving Credit Facility during the Successor 2015 Period as compared to the Successor 2014 Period.

 

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Unaudited quarterly statement of operations data

The following table sets forth certain unaudited quarterly statement of operations data for each quarter from April 1, 2014 through June 30, 2016. The unaudited quarterly statement of operations data includes all adjustments (consisting of normal recurring adjustments) that, in the opinion of management, are necessary for a fair presentation of the information presented. This information should be read in conjunction with the consolidated financial statements and related notes thereto included elsewhere in this prospectus. Operating results for interim periods are not necessarily indicative of the results that may be expected for a full fiscal year. Our results of operations are subject to seasonal fluctuations. For additional information regarding the impact of seasonality, see “—Seasonality.”

 

     Successor  
(dollars in thousands)  

Q2

2014

   

Q3

2014

   

Q4

2014

   

Q1

2015

   

Q2

2015

   

Q3

2015

   

Q4

2015

   

Q1

2016

   

Q2

2016

 

Net sales

  $ 28,006      $ 33,027      $ 54,210      $ 38,941      $ 36,253      $ 50,783      $ 65,436      $ 52,673      $ 44,147   

Gross profit

    12,890        15,146        24,437        20,190        19,108        26,002        35,029        29,300        25,137   

Operating income (loss)

    (2,600     1,403        8,450        6,007        2,123        6,504        10,937        6,191        442   

Net income (loss)

    (5,264     (1,431     3,048        1,315        1,363        (748     2,427        3,804        (2,715

Adjusted EBITDA

  $ 3,757      $ 5,312      $ 13,099      $ 10,151      $ 6,149      $ 12,308      $ 17,570      $ 11,567      $ 8,397   

 

 
                                                       
     Successor  
(dollars in thousands)  

Q2

2014

   

Q3

2014

   

Q4

2014

   

Q1

2015

   

Q2

2015

   

Q3

2015

   

Q4

2015

   

Q1

2016

   

Q2

2016

 

Net income (loss)

  $ (5,264   $ (1,431   $ 3,048      $ 1,315      $ 1,363      $ (748   $ 2,427      $ 3,804      $ (2,715

Interest expense

    3,069        3,117        3,312        3,149        3,132        3,194        3,246        3,061        3,335   

Provision (benefit) for income taxes

    (2,104     (452     1,144        1,154        1,272        (114     2,009        2,916        (1,804

Depreciation and amortization

    2,207        2,152        2,214        2,268        2,327        2,796        2,898        2,980        3,250   
 

 

 

 

EBITDA

  $ (2,092   $ 3,386      $ 9,718      $ 7,886      $ 8,094      $ 5,128      $ 10,580      $ 12,761      $ 2,066   

Transaction-related expenses(a)

    2,363        1,595        1,535        507        72        126                        

Cost related to “restructuring” of operations(b)

                  370        227        193        1,168        7        1,182        2,662   

Initial public offering preparation costs

                         87        231        316        510        179        216   

Stock-based compensation

    65        92        104        95        102        158        148        187        968   

Management fee(c)

    252        157        266        251        99        312        192        225        250   

Pre-opening costs(d)

    32        29        88        20        39        5               62        167   

Customer expansion costs(e)

                                879        (124     436        350          

Other miscellaneous items(f)

    1,032        72                             122        408                 

Unrealized losses on foreign currency contracts(g)

    2,105        (19     1,018        1,078        (3,560     5,097        5,289        (3,379     2,068   
 

 

 

 

Adjusted EBITDA

  $ 3,757      $ 5,312      $ 13,099      $ 10,151      $ 6,149      $ 12,308      $ 17,570      $ 11,567      $ 8,397   

 

 

 

(a)   Represents transaction-related expenses related to the acquisition of the Predecessor.

 

(b)   Represents costs associated with the restructuring of the Company’s operations, including warehouse transition and reorganization of our operations in China.

 

(c)   Represents management fees paid to our Sponsor.

 

(d)   Represents costs associated with e.l.f. stores incurred prior to the store opening, including legal-related costs, rent and occupancy expenses, marketing and other store operating supply expenses.

 

(e)   Represents costs associated with securing additional distribution space, including slotting expense, freight and certain costs related to installation of fixtures.

 

(f)   Represents costs related to evaluation of an acquisition in 2014 as well as other non-cash losses and write-offs.

 

(g)   Represents non-cash (gains) / losses on our foreign currency contracts.

 

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Financial condition, liquidity and capital resources

Overview

As of June 30, 2016, we held $ 3.8 million of cash and cash equivalents. In addition, as of June 30, 2016, we had borrowing capacity of $ 22.8 million under our Revolving Credit Facility.

Our primary cash needs are for capital expenditures and working capital. Capital expenditures typically vary depending on strategic initiatives selected for the fiscal year, including investments in infrastructure, expansion into new national retailer doors and expansion of our e.l.f. store base. We expect to fund ongoing capital expenditures from cash generated from operations and, if necessary, draws on our Revolving Credit Facility.

Our primary working capital requirements are for product and product-related costs, the payment of payroll, rent, distribution costs and advertising and marketing. Fluctuations in working capital are primarily driven by the timing of when a retailer rearranges or restocks its products, expansion of space within our existing retailer base, expansion into new retail stores and the general seasonality of our business. As of June 30, 2016, we had working capital, excluding cash, of $ 16.0 million, compared to $ 10.9 million as of December 31, 2015. Working capital, excluding cash and debt, was $ 22.6 million and $ 21.2 million as of June 30, 2016 and December 31, 2015, respectively.

We believe that our operating cash flow and cash on hand will be adequate to meet our operating, investing and financing needs for the next 12 months. If necessary, we may borrow funds under our Revolving Credit Facility to finance our liquidity requirements, subject to customary borrowing conditions. To the extent additional funds are necessary to meet our long-term liquidity needs as we continue to execute our business strategy, we anticipate that they will be obtained through the incurrence of additional indebtedness, additional equity financings or a combination of these potential sources of funds; however, such financing may not be available on favorable terms, or at all. Our ability to meet our operating, investing and financing needs depends to a significant extent on our future financial performance, which will be subject in part to general economic, competitive, financial, regulatory and other factors that are beyond our control, including those described elsewhere in this prospectus under the heading “Risk Factors.” In addition to these general economic and industry factors, the principal factors in determining whether our cash flows will be sufficient to meet our liquidity requirements will be our ability to provide innovative products to our customers and consumers and manage production and our supply chain.

Cash flows

 

     Predecessor                   Successor  
     Period from
January 1, 2014
through
January 31, 2014
                  Period from
February 1, 2014
through
December 31, 2014
   

Year ended
December 31,

2015

   

Six months

ended
June 30,
2015

   

Six months

ended
June 30,
2016

 
 

Net cash provided by (used in):

               

Operating activities

  $ 908            $ (8,415   $ 24,519      $ 5,831      $ 7,858   

Investing activities

    (19           (239,488     (10,242     (3,749     (2,826

Financing activities

                 252,571        (4,941     (4,263     (15,274
 

 

 

         

 

 

   

 

 

   

 

 

   

 

 

 

Net increase (decrease) in cash:

  $ 889            $ 4,668      $ 9,336      $ (2,181   $ (10,242

 

 

Cash flows for the six months ended June 30, 2016 compared to the six months ended June 30, 2015

Cash provided by (used in) operating activities

For the six months ended June 30, 2016, net cash provided by operating activities was $ 7.9 million. This included net income, before deducting depreciation, amortization and other non-cash items, of $ 2.1 million as well as favorable reductions in net working capital of $ 5.8 million during this period. The favorable reductions in net working capital were largely driven by continued focus on working capital optimization and primarily attributable to a $ 7.9 million increase in accounts payable and accrued expenses.

For the six months ended June 30, 2015, net cash provided by operating activities was $ 5.8 million. This included net income, before deducting depreciation, amortization and other non-cash items, of $ 3.6 million as well as favorable

 

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reductions in working capital of $ 2.2 million during this period. The favorable reductions in working capital were primarily driven by a reduction in accounts receivable of $ 9.6 million, an increase in accounts payable and accrued expenses of $ 6.3 million and were partially offset by a $ 12.3 million increase in inventory and a $ 1.3 million increase in prepaid expenses and other current assets.

Cash provided by (used in) investing activities

For the six months ended June 30, 2016, net cash used in investing activities was $ 2.9 million, compared to $ 3.7 million for the six months ended June 30, 2015. The decrease was driven primarily by lower purchases of property and equipment related to store fixtures to support expanded shelf space at national retailers, offset in part by the build-out of new e.l.f. stores scheduled to open during the second half of 2016.

Cash provided by (used in) financing activities

For the six months ended June 30, 2016, net cash used in financing activities was $ 15.2 million, driven primarily by a $ 68 million dividend paid to stockholders, $ 7.0 million of net debt repayments related to our Senior Secured Credit Facility (as defined below) and the payment of $ 3.1 million of deferred offering costs, partially offset by $ 62.3 million in net proceeds from the issuance of additional debt under the Term Loan Facility described below.

For the six months ended June 30, 2015, net cash used in financing activities was $ 4.3 million, consisting of net repayments of debt related to our Senior Secured Credit Facility.

Cash flows for the Successor 2015 Period compared to the Successor 2014 Period and the Predecessor 2014 Period

Cash provided by (used in) operating activities

For the Successor 2015 Period, net cash provided by operating activities was $ 24.5 million. Net income before deducting depreciation, amortization and other non-cash items generated cash of $ 18.1 million and further benefitted from favorable reductions in net working capital of $ 6.4 million during this period. The favorable reductions in net working capital were largely driven from an increased focus on working capital optimization and were primarily attributable to a decrease of $ 4.4 million in accounts receivable, a $ 0.9 million increase in prepaid expenses and a $ 4.3 million increase in accounts payable and accrued expenses and other liabilities being only partially offset by a $ 2.1 million increase in inventories and a $ 1.1 million decrease in due to related parties during the period.

For the Successor 2014 Period, net cash used in operating activities was $ 8.4 million. Net income before deducting depreciation, amortization and other non-cash items generated cash of $ 7.4 million. This was offset by a net increase in working capital of $ 15.8 million. The most significant drivers of the net increase in working capital were a $ 11.0 million increase in accounts receivable, a $ 4.8 million increase in inventory and a $ 2.1 million increase in prepaid expenses and other assets. These increases were primarily due to net sales and inventory builds to support ongoing operational demands as the business scaled during this period. The significant drivers of the net increase in working capital were partially offset by a $ 2.1 million aggregate increase in accounts payable, accrued expenses and other liabilities during the period.

For the Predecessor 2014 Period, net cash provided by operating activities was $ 0.9 million. Net income before deducting depreciation, amortization and other non-cash items generated cash of $ 3.1 million. This was partially offset by a net increase in working capital of $ 2.2 million. The most significant drivers of the net increase in working capital were a $ 5.5 million decrease in accounts receivable being offset by a $ 1.5 million increase in inventory, a $ 0.2 million increase in prepaid expenses and other assets and a $ 6.0 million decrease in accounts payable and accrued expenses during the period.

Cash provided by (used in) investing activities

For the Successor 2015 Period, net cash used in investing activities was $ 10.2 million, consisting primarily of purchases of property and equipment to support the continued scaling of our business infrastructure during this period.

For the Successor 2014 Period, net cash used in investing activities was $ 239.5 million, consisting of $ 237.9 million used for our Acquisition of the Predecessor and $ 1.6 million used for purchases of property and equipment during this period.

 

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Cash provided by (used in) financing activities

For the Successor 2015 Period, net cash used in financing activities was $ 4.9 million, consisting primarily of debt repayments related to our Senior Secured Credit Facility (as defined below).

For the Successor 2014 Period, net cash provided by financing activities was $ 252.6 million, consisting of $ 149.4 million in net proceeds, after issuance costs, from borrowings on our Senior Secured Credit Facility, $ 105.1 million in proceeds from the issuance of our common and preferred stock and a $ 2.0 million repayment on our long-term debt. The proceeds from the Senior Secured Credit Facility and the issuance of the common and preferred stock were utilized to finance the Acquisition of the Predecessor during this period.

Description of indebtedness

Senior Secured Credit Facility

In conjunction with our acquisition of the Predecessor on January 31, 2014, and as amended in conjunction with the one-time extraordinary cash dividend declared on June 7, 2016 as described under “Dividend policy,” we entered into a five-year, senior secured credit agreement (as amended, the “Senior Secured Credit Facility”) with a syndicate consisting of several large financial institutions. The Senior Secured Credit Facility originally consisted of a $ 20 million revolving line of credit (the “Revolving Credit Facility”) and a $ 105 million term loan facility (the “Term Loan Facility”). On June 7, 2016, we entered into an amendment to our Senior Secured Credit Facility, pursuant to which we incurred an additional $ 64 million of indebtedness under the Term Loan Facility and increased the size of our Revolving Credit Facility to $ 25 million.

All amounts under the Revolving Credit Facility are available for draw until the maturity date on January 31, 2019. The Revolving Credit Facility is collateralized by substantially all of our assets and has a commitment fee of 0.5% of unused balance, payable quarterly in arrears. The Revolving Credit Facility also provides for sub-facilities in the form of a $ 5 million letter of credit and a $ 2 million swing line loan; however, the aggregate amounts under the Revolving Credit Facility cannot exceed $ 25 million.

The Term Loan Facility will mature on January 31, 2019 and is also collateralized by substantially all of our assets. The Term Loan Facility will be repaid in quarterly installments equal to (i)  $ 656,250 plus (ii) starting with fiscal quarter ending September 30, 2016, $ 400,000, with the remaining outstanding balance of the Term Loan Facility due upon the maturity date. The Term Loan Facility can be prepaid at any time without penalty and is subject to mandatory prepayments upon (i) the receipt of excess cash flow; (ii) asset dispositions that, individually, result in net proceeds in excess of $ 1 million, or, in aggregate, in excess of $ 2 million during a year; or (iii) the issuance of additional debt. The Term Loan Facility requires an annual administrative fee of $ 50,000.

Both the Revolving Credit Facility and the Term Loan Facility carry interest, at our option, at (i) a rate per annum equal to the greater of an adjusted London Interbank Offered Rate (“LIBOR”) (subject to a minimum floor of 1.25%) plus an applicable margin or (ii) a floating base rate plus an applicable margin. The interest rate on both the Revolving Credit Facility and the Term Loan Facility was 6.25% per annum as of December 31, 2015 and June 30, 2016.

The Senior Secured Credit Facility contains a number of covenants that, among other things, restrict our ability to (subject to certain exceptions) pay dividends and distributions or repurchase our capital stock, incur additional indebtedness or issue preferred stock, create liens on assets, engage in mergers or consolidations and sell or otherwise dispose of assets. The Senior Secured Credit Facility also includes maintenance covenants that require us to comply with certain consolidated total net leverage ratios and consolidated interest coverage ratios. As of December 31, 2015 and June 30, 2016, we were in compliance with all financial covenants. For more information related to the covenants in the Senior Secured Credit Facility, see the section entitled “Description of certain indebtedness—Senior Secured Credit Facility.”

Second Lien Credit Facility

In conjunction with our entry into the Senior Secured Credit Facility, and as amended in conjunction with the special dividend declared on June 7, 2016 as described under “Dividend policy,” we entered into a second lien credit agreement (as amended, the “Second Lien Credit Facility”) which provided a $ 40 million second lien term loan (the “Second Lien Term Loan”). The Second Lien Term Loan does not require any principal payments until maturity on July 31, 2019. The Second Lien Term Loan requires prepayment penalties if prepaid prior to the maturity date, other than in conjunction with a change in control, in the amount of 4% of amounts prepaid in year one, 2% in year two and 1% in year three; and requires

 

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prepayment penalties of 1% if prepaid on or prior to end of year three in conjunction with a change in control. The Second Lien Term Loan carries interest equal to Adjusted LIBOR plus 10% per annum, with an adjusted LIBOR equal to the higher of (i) the London interbank offered rate for U.S. dollars adjusted for customary Eurodollar reserve requirements, if any, and (ii) 1%. As of December 31, 2015 and June 30, 2016, the Second Lien Term Loan carried interest at a rate per annum of 11%.

The Second Lien Credit Facility contains substantially similar covenants as the Senior Secured Credit Facility, including maintenance covenants requiring compliance with certain consolidated total net leverage ratios and consolidated interest coverage ratios. As of December 31, 2015 and June 30, 2016, we were in compliance with all financial covenants. For more information related to the covenants in the Second Lien Credit Facility, see the section entitled “Description of certain indebtedness—Second Lien Credit Facility.”

Contractual obligations and commitments

The following table summarizes our contractual obligations as of December 31, 2015:

 

      Payments due by period  
      Total      Less than
one year
     1-3 Years      3-5 Years      More than
5 years
 

Bank debt(1)

   $ 148,106       $ 10,325       $ 5,250       $ 132,531       $   

Interest on bank debt(2)

     34,903         10,791         21,023         3,089           

Operating lease obligations

     14,886         2,564         5,605         4,682         2,035   
  

 

 

 

Total contractual obligations(3)

   $ 197,895       $ 23,680       $ 31,878       $ 140,302       $ 2,035   

 

 

 

(1)   Long-term debt payments include scheduled principal payments only.

 

(2)   Assumes an annual interest rate of 6.25% and 11% on the senior secured credit facility and second lien term loan, respectively, over the terms of the loans.

 

(3)   We have excluded our liability for uncertain tax positions from the table above because we are unable to make a reasonably reliable estimate of the timing of payments.

Off-balance sheet arrangements

As of June 30, 2016, our off-balance sheet arrangements consisted of operating leases for e.l.f. stores and office and warehouse space. See Note 7 to our unaudited condensed consolidated financial statements included elsewhere in this prospectus for more information regarding these operating leases.

Critical accounting policies and estimates

Our consolidated financial statements included elsewhere in this prospectus have been prepared in accordance with GAAP. The preparation of our financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses. We base our estimates on historical experience and on various other assumptions that we believe are reasonable under the circumstances. Actual results may differ from these estimates under different assumptions or conditions. While our significant accounting policies are more fully described in the notes to our consolidated financial statements included elsewhere in this prospectus, we believe that the following accounting policies and estimates are critical to our business operations and understanding of our financial results.

Revenue recognition

We recognize revenues when persuasive evidence of an arrangement exists, the product has been shipped, when title passes, when all risks and rewards of ownership have transferred, the sales price is fixed or determinable, and collectability is reasonably assured. Delivery is considered to have occurred at the time the title and risk of loss passes to the customer.

In the normal course of business, we offer various incentives to customers. We maintain a provision for sales discounts, markdowns, shortages and price adjustments, which are reflected as reductions to our net sales. The provision for these reductions is established based on our best estimate at the time of sale. We regularly review and revise, when deemed necessary, our estimates of sales incentives and other required reserves based primarily upon the historical rate of realization. These revenue reductions are reflected on the consolidated balance sheet as a sales allowance against accounts receivable.

 

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Business combinations

We allocate the purchase price of acquired companies to the tangible and intangible assets acquired and liabilities assumed based on their estimated fair values. The valuation methodologies used are based on the nature of the asset or liability.

For purposes of our acquisition of the Predecessor, the fair value of the trade name is estimated using the relief from royalty method, an income approach to valuation, which includes projecting net sales and other estimates. Customer relationships are valued based on an estimate of future revenues and costs related to the respective contracts over the remaining expected lives. Favorable leases are recorded based on differences between contractual rents under the respective lease agreements and prevailing market rents at the lease acquisition date.

Determining an acquired intangible asset’s useful life requires management judgment and is based on an evaluation of a number of factors, including the expected use of the asset, consumer awareness, trade name history and future expansion expectations, as well as any contractual provisions that could limit or extend an asset’s useful life. We estimate the useful lives of the intangible assets based on the expected period over which we anticipate generating economic benefit from the asset. We consider the trade name that we acquired to have an indefinite useful life, based upon its history of strong revenue and cash flow performance, and the intent and our ability to support the trade name with marketplace spending for the foreseeable future.

Impairment of long-lived assets, including goodwill and intangible assets

We assess potential impairments to our long-lived assets, which include property and equipment and amortizable intangible assets, whenever events or circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of an asset is measured by a comparison of the carrying amount of an asset group to the estimated undiscounted future cash flows expected to be generated by the asset. If the carrying amount of the asset group exceeds its estimated undiscounted future cash flows, an impairment charge is recognized as the amount by which the carrying amount of the asset exceeds the fair value of the asset. There were no impairment charges recorded on long-lived assets during the Predecessor 2014 Period, the Successor 2014 Period or the Successor 2015 Period.

Goodwill and indefinite-lived intangibles have been assigned to our reporting units for purposes of impairment testing. Historically we had a single reporting unit for the purpose of performing our goodwill impairment test. During the third quarter of 2015, we made structural and reporting changes to our internal organization. This reorganization aligned the internal management and functional support around our primary sales channels, which report into the chief operating decision maker. These changes resulted in the identification of three reporting units that met the definition in ASC 350, Intangibles—Goodwill and Other , of components of the Company’s one operating segment: (i) retail customers; (ii) e.l.f. stores; and (iii) e-commerce. In accordance with ASC 350 , on October 1, 2015, we reallocated the goodwill to the three reporting units using a relative fair value approach. As a result of the internal reorganization, we performed a quantitative goodwill impairment test immediately before and a quantitative goodwill impairment test immediately after this change in reporting units and noted no indication of impairment.

The goodwill impairment test consists of a comparison of each reporting unit’s fair value to its carrying value. The fair value of a reporting unit is an estimate of the amount for which the unit as a whole could be sold in a current transaction between willing parties. If the carrying value of a reporting unit exceeds its fair value, goodwill is written down to its implied fair value. Fair value of a reporting unit is estimated based on a combination of comparative market multiples and discounted cash flow valuation approaches. We are also permitted to make a qualitative assessment of whether it is more likely than not that the fair value of a reporting unit is less than its carrying value prior to applying the quantitative assessment. If based on our qualitative assessment it is more likely than not that the carrying value of the reporting unit is less than its fair value, then a quantitative assessment may be required.

We evaluate our indefinite-lived intangible asset to determine whether current events and circumstances continue to support an indefinite useful life. In addition, our indefinite-lived intangible asset is tested for impairment annually. The indefinite-lived intangible asset impairment test consists of a comparison of the fair value of each asset with its carrying value, with any excess of carrying value over fair value being recognized as an impairment loss. We are also permitted to make a qualitative assessment of whether it is more likely than not an indefinite-lived intangible asset’s fair value is less than its carrying value prior to applying the quantitative assessment. If based on our qualitative assessment it is more likely than not that the carrying value of the asset is less than its fair value, then a quantitative assessment may be required.

 

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We have selected October 1 as the date on which to perform our annual impairment tests for goodwill. We also test for impairment whenever events or circumstances indicate that the fair value of such indefinite-lived intangible asset has been impaired. No impairment of goodwill or our indefinite-lived intangible asset was recorded during the Predecessor 2014 Period, the Successor 2014 Period or the Successor 2015 Period.

Stock-based compensation

Stock-based compensation cost is measured at grant date, based on the fair value of the award, and is recognized on a straight-line method over the requisite service period for awards expected to vest. We estimate the fair value of employee stock-based payment awards subject to only a service condition on the date of grant using the Black-Scholes valuation model. The Black-Scholes model requires the use of highly subjective and complex assumptions, including the option’s expected term and the price volatility of the underlying stock. We estimate the fair value of employee stock-based payment awards subject to both a market condition and the occurrence of a performance condition on the date of grant using a Monte Carlo simulation model that assumes the performance criteria will be met and the target payout levels will be achieved. We will continue to use the Black-Scholes and Monte Carlo models for option pricing following the consummation of this offering.

Forfeitures are estimated at the time of grant and revised, if necessary, in subsequent periods if actual forfeitures differ from those estimates. We recognize compensation expense for awards expected to vest with only a service condition on a straight-line basis over the requisite service period, which is generally the award’s vesting period. Vesting of these awards is accelerated for certain employees in the event of a change in control or an initial public offering. Compensation expense for employee stock-based awards whose vesting is subject to the fulfillment of both a market condition and the occurrence of a performance condition is recognized on a graded-vesting basis at the time the achievement of the performance condition becomes probable.

The expected stock price volatility for the common stock was estimated by taking the average historic price volatility for industry peers based on daily price observations over a period equivalent to the expected term of the stock option grants. Industry peers consist of several public companies in our industry which are of similar size, complexity and stage of development. The risk-free interest rate for the expected term of the option is based on the U.S. Treasury implied yield at the date of grant. The weighted-average expected term is determined with reference to historical exercise and post-vesting cancellation experience and the vesting period and contractual term of the awards. The forfeitures rate is estimated based on historical experience and expected future activity.

The fair value of shares of common stock underlying the stock options has historically been the determined by our board of directors, with input from management. Because there has been no public market for our common stock, the board of directors determined the fair value of common stock at the time of grant by considering a number of objective and subjective factors including independent third-party valuations of our common stock, operating and financial performance, the lack of liquidity of our capital stock and general and industry specific economic outlook, among other factors. Following the consummation of this offering, the fair value of our common stock will be the closing price of our common stock as reported on the date of grant.

We have no current plans to pay a regular dividend.

JOBS Act

We qualify as an emerging growth company pursuant to the provisions of the JOBS Act. Section 107 of the JOBS Act provides that an emerging growth company can take advantage of the extended transition period provided in Section 7(a)(2)(B) of the Securities Act for complying with new or revised accounting standards. We currently intend to opt out of the extended transition period with respect to new or revised accounting standards and, as a result, we will comply with any such new or revised accounting standards on the relevant dates on which adoption of such standards is required for non-emerging growth companies.

Quantitative and qualitative disclosure about market risk

We are exposed to certain market risks arising from transactions in the normal course of our business. Such risk is principally associated with interest rates and foreign exchange.

 

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Interest rate risk

We are exposed to changes in interest rates because the indebtedness incurred under our Senior Secured Credit Facility and Second Lien Credit Facility are variable rate debt. Interest rate changes generally do not affect the market value of our Senior Secured Credit Facility or our Second Lien Credit Facility; however, they do affect the amount of our interest payments and, therefore, our future earnings and cash flows. As of December 31, 2015, we had variable rate debt of $ 148.1 million under our Senior Secured Credit Facility and Second Lien Credit Facility. An interest rate increase of 1% would have increased our interest expense for the year ended December 31, 2015 by $ 1.4 million.

Foreign exchange risk

We are exposed to foreign exchange risk as we have contracts with suppliers in China for future purchases of inventories denominated in RMB. While we do not have an active hedging program, we have a number of legacy exchange rate forward contracts that are in the process of runoff. We neither use these foreign currency forward contracts for trading purposes nor do we follow hedge accounting, and therefore the periodic impact of these legacy hedging activities is calculated on a mark-to-market basis. Accordingly, the foreign currency forward contracts are carried at their fair value either as an asset or liability on the consolidated balance sheet with changes in fair value being recorded in other income (expense), net in our consolidated statements of operations.

Information regarding the Company’s foreign currency forward contracts, all of which mature in 2016, is as follows (in thousands):

 

Forward contracts (“FC”)   

Avg. contractual rate

$ /FC

     Original U.S. dollar
notional amount
    

Asset/(Liab.) fair value

December 31, 2015

 

Buy Chinese Renminbi / Sell USD

     6.2152       $ 148,978       $ (10,702

 

 

Controls and procedures

Internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements in accordance with GAAP. We are currently in the process of reviewing, documenting and testing our internal control over financial reporting.

We have not performed an evaluation of our internal control over financial reporting, as required by Section 404 of the Sarbanes-Oxley Act, nor have we engaged an independent registered public accounting firm to perform an audit of our internal control over financial reporting as of any balance sheet date or for any period reported in our consolidated financial statements. Our management is not presently required to perform an annual assessment of the effectiveness of our internal control over financial reporting. This requirement will first apply to our Annual Report on Form 10-K for the year ending December 31, 2017. For as long as we are an emerging growth company, our independent registered public accounting firm will not be required to attest to the effectiveness of our internal control over financial reporting. When we lose our status as an “emerging growth company” and reach an accelerated filer threshold, our independent registered public accounting firm will be required to attest to the effectiveness of our internal control over financial reporting.

In connection with the preparation of our financial statements for the year ended December 31, 2014, we, in conjunction with our independent registered public accounting firm, identified a material weakness in the design and operating effectiveness of our internal control over financial reporting. The material weakness was primarily comprised of deficiencies related to a lack of technical accounting skills and a lack of adequate review processes and controls within our accounting and finance organization. This material weakness was remediated in 2015. For additional information on this material weakness and the steps we took to remediate it, see “Risk factors—Risks related to our business—We have previously identified a material weakness in our internal control over financial reporting, and if we are unable to maintain effective internal controls, we may not be able to produce timely and accurate financial statements, and we or our independent registered public accounting firm may conclude that our internal control over financial reporting is not effective, which could adversely impact our investors’ confidence and our stock price.”

 

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Business

 

LOGO

e.l.f.: Changing the face of beauty

We are one of the fastest growing, most innovative cosmetics companies in the United States. Driven by our mission to make luxurious beauty accessible for all women to play beautifully , we have challenged the traditional belief that quality cosmetics are only available at high prices in select channels. e.l.f. offers high-quality, prestige-inspired beauty products for eyes, lips and face at extraordinary value, with the majority of our items retailing $ 6 or less. Our price points encourage trial and experimentation, while our commitment to quality and a differentiated consumer engagement model engender loyalty among a passionate and vocal group of consumers. We have built an authentic brand and a company with strong growth, margins and cash flow from operations.

We believe our success is rooted in our innovation process and ability to build direct consumer relationships. Born as an e-commerce company over a decade ago, we have created a modern consumer engagement and responsive innovation model that keeps our products on-trend and our consumers engaged as brand ambassadors. Our consumers provide us with real-time feedback through reviews and social media, which enables us to refine and augment our product portfolio in response to their needs. We leverage our fast-cycle product development and asset-light supply chain to launch high-quality products in as few as 20 weeks from concept, and 27 weeks on average. Our products are first launched on elfcosmetics.com, and distribution is generally only broadened to our retail customers after we receive strong consumer validation online. We believe this has led to our consistently strong productivity. We are one of the fastest growing cosmetics brands at Target, Walmart and CVS.

Our brand appeals to some of the most sought after consumers in the category. We believe the combination of our affordable price points and on-trend, innovative product assortment encourages trial, offers a strong value proposition and appeals to a broad base of consumers. Relative to the overall cosmetics category, our brand over-indexes with Millennials, multi-cultural consumers and some of the heaviest users in the category. This attractive and loyal consumer base supports high sales per linear foot and higher category sales for our retail customers. By combining our strong relationships with leading retailers with integrated consumer engagement across our e.l.f. stores, e-commerce and social media, we are a true multi-channel brand.

 

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Our net sales growth in the United States over the last three years was 20 times that of the mass cosmetics category on average. Our net sales still only represented 2.3% of the $ 8 billion U.S. mass cosmetics category in 2015. Our net sales grew from $ 144.9 million in the Unaudited Pro Forma Combined 2014 Period to $ 191.4 million in the year ended December 31, 2015, and, over the same period, our Adjusted EBITDA grew from $ 28.1 million to $ 46.2 million, representing an increase of 32% and 64%, respectively. Over the same period, net income grew from an unaudited pro forma combined net loss of $ 2.9 million to a net profit of $ 4.4 million. In 2015, our Adjusted EBITDA margin was 24% and our net income margin was 2%. 2

 

LOGO

Our history

We were founded in 2004 by father-son entrepreneurs Alan and Joey Shamah. Having spent over 30 collective years in the apparel business, they noted the changes being driven by the advent of “fast-fashion” players. They believed that a similar opportunity existed in cosmetics, where the traditional beauty model of high prices, long product cycles and traditional advertising was out of touch with changing consumer behavior. Utilizing sourcing relationships in China, they rapidly created prestige-inspired products at an affordable price. Bypassing traditional channels, they connected directly with consumers and launched elfcosmetics.com, where the first products sold for $ 1 each.

From those early days onward, we sought to delight our consumers with luxurious beauty at an extraordinary value. Our affordable, on-trend offering coupled with our direct approach resonated with young, diverse makeup enthusiasts, who became loyal e.l.f. consumers and helped build the brand through digital engagement and strong word of mouth. We spent the first few years nurturing this small and loyal consumer base. We grew virally and by 2006 found ourselves with a few hundred thousand orders and a vibrant community that valued our quality, affordable prices and honest approach.

Consumers told us what they did and did not like, as well as what other products they wanted to see from the brand. And we listened. We established deep, genuine connections with our consumers as they informed, inspired and motivated us. We broadened our assortment and expanded our price range up to $ 6 while staying true to our promise to provide extraordinary value relative to comparable prestige products. e.l.f. brought a degree of sophistication that was not present at these price points, and the industry took note—we won our first Allure Best of Beauty award in 2008 for our Shimmering Facial Whip, building credibility behind our promise of affordable, luxurious beauty.

In 2008, Target, a key beauty destination for many consumers, decided to test e.l.f. in its stores. Once at Target, we brought incremental sales to Target’s cosmetic category and the highest sales per linear foot across the entire cosmetics department. We believe the Target guest appreciated not having to choose between quality and affordable prices, and the e.l.f. cosmetics brand has exhibited strong sales growth in this account ever since. Over the next several years, we nurtured our vibrant community and expanded our distribution to other leading retailers such as Walmart. We gained chain-wide distribution in Target stores in 2013 and in that same year, we opened our first e.l.f. store to add another dimension to the brand experience and further bring our accessible beauty vision to life.

In January 2014, TPG Growth, a leading global private equity firm, acquired a controlling interest in e.l.f. to further scale and transform the company. Concurrent with the acquisition, Tarang Amin was appointed as CEO. The objective was to grow the business by enhancing the management team, building the e.l.f. brand, driving industry-leading innovation, expanding distribution and improving operational efficiency.

 

 

2     Adjusted EBITDA and Adjusted EBITDA margin are not measurements of financial performance under GAAP. See “Summary consolidated financial data” for a discussion of Adjusted EBITDA, Adjusted EBITDA margin and their respective limitations and reconciliations to GAAP measures.

 

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Over the past two years, we have made significant investments in our business by adding top talent and building our functional capabilities. We have developed strong consumer relationships and a new brand strategy behind play beautifully; accelerated our first-to-mass innovation capability, including our first category adjacency in skin care; expanded our distribution to approximately 19,000 retail stores, including Walmart, CVS and Old Navy; and significantly strengthened our operations, including transforming our China team and supplier base to deliver even higher quality. Our efforts have made e.l.f. one of the fastest-growing cosmetics companies in the United States. Women’s Wear Daily, a leading beauty industry publication, awarded e.l.f. Mass Brand of the Year in 2014 in recognition of our strong growth and impact on the overall cosmetics industry.

We are proud of the progress we have made to date and believe that we are in the early stages of brand development with significant room to grow. Many of the traditional brands in cosmetics have been in business 50 to 100 years. We are still building our brand and customer base and will continue to seek to shift industry paradigms. We aim to make the world a place where women can play beautifully every day.

Our mission

 

LOGO

Every word of this mission is meaningful to us. We believe that women should not have to choose between quality and price, so we take great pride in making prestige-inspired cosmetics accessible to all women. We understand our consumers and their desire to do more than look good. We share in their joy of makeup and strive to deliver them the beauty experience they desire. Our mission to play beautifully fosters a deep, authentic connection with our consumer.

Play beautifully is more than a trademarked slogan. It is an invitation to celebrate our consumer’s love of makeup, passion to explore new products and techniques, and desire to look and feel beautiful every day. From natural to classic to bold, e.l.f. gives our consumers endless possibilities so that they can have fun creating the looks they want.

 

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The cosmetics industry is large and attractive

We believe that the cosmetics category is highly attractive given its scale, growth dynamics and consumer demand trends. The U.S. and global cosmetics markets generated $ 14 billion and $ 57 billion, respectively, of retail sales in 2015. The cosmetics category primarily consists of face makeup, eye makeup, lip products, nail products and cosmetics sets/kits and excludes beauty tools and accessories such as brushes and applicators.

 

  Face makeup .      Face makeup products include BB/CC creams, blush, bronzer and highlighter, foundation, concealer and powder. Estimated U.S. retail sales of face makeup were $ 5 billion in 2015.

 

  Eye makeup .     Eye makeup products include eyeliner/pencil, eye shadow and mascara. Estimated U.S. retail sales of eye makeup were $ 4 billion in 2015.

 

  Lip products .     Lip products include lip gloss, lip liner/pencil and lipstick. Estimated U.S. retail sales of lip products were $ 3 billion in 2015.

 

  Nail products .     Nail products include nail polish, nail treatments/strengthener and nail polish remover. Estimated U.S. retail sales of nail products were $ 1 billion in 2015.

 

  Cosmetics sets/kits .     Cosmetics sets/kits include multiple cosmetics items of the same brand line packaged together in a set and priced at an advantageous price compared to purchasing the items separately. Estimated U.S. retail sales of cosmetics sets/kits were $ 1 billion in 2015.

The following chart illustrates cosmetics sales in the United States by product type in 2015:

U.S. Cosmetics Retail Sales by Product 2015

 

LOGO

Source: Euromonitor International Limited

The cosmetics category has experienced strong growth both in the United States and globally. In the United States, retail sales increased from $ 11 billion in 2010 to $ 14 billion in 2015, representing a CAGR of 5%, with each product category driving growth. Globally, retail sales increased from $ 43 billion in 2010 to $ 57 billion in 2015, representing a CAGR of 5%. Drivers of growth include innovation and new product launches, which span from new formulations that enhance performance, feel and fragrance, to new colors, delivery forms and packaging.

Cosmetics appeal broadly to women of all ages and ethnic groups, with penetration reaching 82% of U.S. women in 2014. Given the importance of cosmetics in a woman’s daily regimen and the availability of products across price points, the category has demonstrated resiliency through economic cycles. For example, during the most recent recessionary period of 2008 to 2009, the cosmetics category remained stable while broader gross domestic product declined 3%. We expect cosmetics to continue to be among the fastest growing and most consistent consumer categories.

 

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Channels

Cosmetics are broadly sold through food, drug, and mass channels, which accounted for 46% of U.S. cosmetics retail sales in 2015. Cosmetics are also distributed through department stores, direct and specialty channels accounting for 27%, 20% and 7% of retail sales, respectively, in 2015. The following chart illustrates cosmetics retail sales in the United States by channel in 2015:

U.S. Cosmetics Retail Sales by Channel 2015

 

LOGO

Source: Euromonitor International Limited data, Company channel definitions

FDM stores are typically considered to be the mass channel and include a diverse set of retailers, including grocery retailers such as Kroger, drug retailers such as CVS and mass merchandisers such as Target and Walmart. This channel is a key beauty destination for many consumers that seek affordable cosmetics and find that the large store footprints and multi-category offerings provide added convenience. From 2010 to 2015, cosmetics retail sales in FDM stores grew at a 4% CAGR.

Department stores typically utilize an assisted sales model for selling prestige cosmetics: products are stored in locked cabinets and consumers must ask a store associate to hand them products they would like to purchase. In this channel, store associates are able to provide beauty advice, product recommendations and facilitate product trial. From 2010 to 2015, cosmetics retail sales in department stores grew at a 7% CAGR.

The specialty channel includes multi-brand beauty retailers such as Sephora and Ulta. The cosmetics specialty channel also includes mono-brand beauty retailers such as e.l.f., Benefit Cosmetics and MAC Cosmetics. While beauty specialty retailers utilize an open sell model in which consumers are able to directly select product from shelves, stores are also staffed by sales associates who are able to provide advice, recommendations and promote product trial. In addition, many also offer salon services such as brow bars and spa services such as facials. Some specialty retailers in apparel and other segments, such as Old Navy, also offer cosmetics. From 2010 to 2015, cosmetics retail sales in specialty channels grew at a 3% CAGR.

The direct channel includes e-commerce, home shopping and direct selling. e-commerce sales accounted for 10% of the U.S. cosmetics market in 2015. From 2010 to 2015, while retail sales in the direct channel grew at a 6% CAGR, e-commerce sales grew at a 15% CAGR, three times the rate of the broader cosmetics category. We believe that beauty bloggers, social media and other online content enable consumers to be educated about cosmetics online and that growth rates in this channel will continue to outpace the broader category.

e.l.f. participates in the FDM, specialty and direct channels and has a strong track record of delivering above category average growth.

 

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Market segments

In the United States, the cosmetics category traditionally has been separated into two discrete segments—prestige and mass—which generally represent higher and lower price points and are associated with certain channels. The following chart illustrates cosmetics sales in the United States by market segment in 2015:

U.S. Cosmetics Retail Sales by Segment 2015

 

LOGO

Source: Euromonitor International Limited

Prestige products, which accounted for 42% of U.S. cosmetics retail sales in 2015, are characterized by higher price points and are typically sold in department stores and in high-end specialty stores such as Sephora. They have historically been at the forefront of quality and innovation in the category but remain too expensive for many consumers in the United States, where the average disposable personal income is less than $ 15,000. From 2010 to 2015, retail sales in the prestige segment grew at a 9% CAGR.

Mass products, which generated 58% of 2015 U.S. cosmetics retail sales, are more affordable than their prestige counterparts but generally have not delivered the same level of quality or innovation. They are more broadly available than prestige products given their presence in FDM and direct channels. From 2010 to 2015, retail sales in the mass segment grew at a 3% CAGR.

We believe that a paradigm shift has occurred in cosmetics: today’s cosmetics consumer is increasingly connected and informed, and purchasing decisions are often influenced by friends, beauty bloggers, social media and other online content. These sources provide consumers easy access to a breadth and depth of information formerly only available from beauty experts in assisted sales environments. The growth of specialty retailers like Ulta that carry both mass and prestige products has blurred the lines between segments and influenced consumers’ perceptions of each. As a result, consumers have shown a propensity to seek the most innovative products across prestige and mass to maximize their experience and budget.

Competitive landscape

The cosmetics industry is relatively concentrated. In 2015, over 60% of cosmetics retail sales in the United States were generated by brands owned by L’Oreal S.A., The Estee Lauder Companies Inc., The Procter & Gamble Company, Revlon Inc. and Shiseido Company, Limited. These large multinational companies own many brands across mass and prestige cosmetics. Of the nearly 30 cosmetics brands with retail sales exceeding $ 100 million in the United States in 2015, e.l.f. is one of only four that are independent. In addition to the traditional brands against which we compete, small independent companies continue to enter the market with new brands and customized product offerings. At less than 1% of total cosmetics retail sales, there is low private-label penetration in this highly branded category.

Among other areas, we believe that we compete against other cosmetics brands on price, quality of products and packaging, perceived value, innovation, in-store presence and visibility, and e-commerce and mobile commerce initiatives. e.l.f.’s share of the U.S. mass cosmetics market was 2.3% in 2015, ranking us as the eighth largest mass cosmetics brand in the United States excluding brands primarily focused on nails.

 

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In 2015, e.l.f.’s retail sales grew at 43%, which is almost five times faster than the next fastest top-10 mass cosmetics brand based on size, excluding brands primarily focused on nails, as illustrated by the chart below:

2015 Sales Growth for Top 10 U.S. Mass Cosmetics Brands Based on Size (1)

 

 

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Source: e.l.f. retail sales growth rate per Nielsen and e.l.f. internal data; other brands retail sales growth rates per Euromonitor

 

(1)   Excludes Sally Hansen, which is primarily a nail brand.

Our strategic differentiation: how e.l.f. helps women to play beautifully

We are driven by what today’s cosmetics consumer wants—an assortment of high-quality, prestige-inspired cosmetics at extraordinary value. We do not define ourselves as strictly mass or prestige, or limit our product availability to select channels. Through our modern consumer engagement and responsive innovation model, we interact with our consumers instead of broadcasting at them. This allows us to stay in tune with their needs and build trust and loyalty. Our business model has multiple areas of competitive advantage:

 

 

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Authentic brand that attracts some of the best consumers in the category

e.l.f. was founded to fill the gap between high-priced prestige beauty products and less innovative mass products. For over a decade, we have prioritized getting to know our consumers, and they in turn have provided us with valuable feedback, enabling us to address this gap and build e.l.f. into an authentic and trusted brand. By providing a comprehensive experience—from integrated engagement online, through social media and in our stores to our differentiated product offerings—we have drawn a strong following among the most sought after and heaviest users of cosmetic products.

One of our greatest strengths is the consumer that we attract. We appeal to a broad base of beauty consumers from experts to novices who enjoy experimenting with makeup. Many traditional brands have rapidly aging user bases. In contrast, we have strong appeal with Millennials and Hispanics, two of the fastest growing demographic groups in the United States.

 

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Cosmetics Industry Consumers* – Age and Ethnicity

 

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Source: Calimesa Consulting Partners, LLC; MetrixLab

 

Source: Third-party study commissioned by our Sponsor

* Includes mass and prestige cosmetics                        

 

Consumer-centric and efficient marketing model

We believe that modern cosmetics consumers are fundamentally different than generations of women before them and are not as engaged by the broad-scale marketing and advertising tactics used by many traditional beauty companies. In 2014, over $ 2 billion was spent on U.S. beauty advertising according to Nielsen, including many print media and TV campaigns highlighting celebrities and supermodels as brand advocates. In contrast, e.l.f. has deployed a low-cost, consumer-centric marketing model. Total expenses for advertising and promotions in 2015 were $ 3.9 million, less than 3% of our net sales. This compares to an average of over 20% of net sales for the top five global cosmetics companies from both the mass and prestige segments by net sales in their last fiscal year according to their public filings with the SEC or equivalent international regulatory agency.

Our consumers have been our best advocates, growing the e.l.f. brand virally through strong word of mouth. Many are very active in social media, write reviews of our products online and generate content on YouTube and other social media outlets. We have the #1 mass cosmetics brand e-commerce site with over 25 million visitors a year and possess a social media following on Instagram, Facebook and YouTube that rivals the larger cosmetic brands. elfcosmetics.com reflects our passionate consumer base with over 100,000 ratings. Over the past two years, we have received 18 times more reviews than the industry average. Consumers also love our high-quality, innovative products, with 66% of 2015 reviews being 5 stars, the highest rating. Our digital content—including images, text, and video—inspires our fans with looks and products they love and avoids common industry messaging that beauty is about perfection. We feature e.l.f. consumers as our stars, and reinforce our promise to make luxurious beauty accessible.

High-quality cosmetics at an extraordinary value enabled by flexible, asset-light operations

e.l.f. consumers recognize our ability to provide a broad assortment of high-quality products at an extraordinary value. The majority of our items retail for $ 6 or less, providing a low-risk way for consumers to try new products. Examples of our high-quality and extraordinary value innovations include e.l.f. Mineral Infused Face Primer at $ 6 versus a prestige primer at $ 36, e.l.f. Baked Eyeshadow Trio at $ 4 versus a competitive baked eyeshadow trio at $ 28 and e.l.f. Lip Exfoliator at $ 3 versus a similar type of lip treatment at $ 24. From formulation to package design, our products deliver quality and innovation at a fraction of prestige prices, facilitating frequent consumer purchasing and experimentation without the guilt of overspending.

Our low price points are supported by our ability to source low cost, high-quality cosmetics quickly. As of August 2016, we had 48 e.l.f. professionals involved in sourcing, quality and innovation. We have longtime relationships with strategic vendors that pair a strong quality orientation with the ability to execute rapidly. Our supply chain is built for growth with asset-light operations, ample capacity and low capital requirements. This capability and commitment to an agile supply chain allows us to introduce a stream of on-trend innovation.

All e.l.f. products are hypoallergenic and non-comedogenic. We do not test on animals or endorse such practices, nor do we use ingredients that are tested on animals. We have been designated as being a “cruelty-free” company by People for the Ethical Treatment of Animals.

 

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Our portfolio spans the eyes, lips, face, kits, tools and skin care categories. Our largest product categories, face makeup and eye makeup, accounted for 38% and 33%, respectively, of our sales of cosmetics in 2015, which excludes tools and skin care. In comparison, face makeup and eye makeup accounted for 36% and 29%, respectively, of the U.S. cosmetics category retail sales in 2015.

 

 

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Eye makeup .     Eye makeup accounted for 33% of our sales in 2015, excluding tools and skin care. Eye makeup is a segment where our consumers truly have an opportunity to play and experiment. Our breadth of accessible, high-quality eye makeup includes eyeshadow, eyeliner, mascara and eyelashes, and eyebrow grooming products. We offer everything from the basics to must-have items for capturing the season’s latest looks. Our top-rated eye cosmetic products include our best-selling Mad for Matte Eyeshadow Palette with 10 matte shades that consumers can use to customize a multitude of looks, our e.l.f. Eyebrow Kit and e.l.f. Intense Ink Eyeliner. We currently offer eye makeup products with retail prices from $ 1 to $ 10.

 

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Lip makeup .     Lip makeup accounted for 14% of our sales in 2015, excluding tools and skin care. We offer a wide assortment of color and non-color lip products that delight our consumers. Our lip colors are made with nourishing ingredients in a range of finishes and forms, including lipsticks, glosses and liners. Our Matte Lip Color and Moisturizing Lipsticks offer deep, pigmented color for $ 3 and are consistent top sellers. We also offer lip care products like our e.l.f. Lip Exfoliator that gently exfoliates lips prior to makeup application. Overall, our lip products have retail prices from $ 1 to $ 10.

 

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Face makeup .     Face makeup accounted for 38% of our sales in 2015, excluding tools and skin care. Our consumers use a variety of products to achieve their desired look. Their multi-step regimen often involves products from a base primer layer to finishing and highlighting powders. Our high-quality face makeup line includes a breadth of complexion essentials our consumers can use to prime their skin, conceal imperfections and smooth, sculpt, highlight and define a look. We currently offer foundation, primer, blush, powder, concealer, bronzer, tinted moisturizer, shimmer, bronzers and luminizers that retail from $ 1 to $ 8. Consumer favorites include the top-rated e.l.f. Blush Palette and e.l.f. Mineral Infused Face Primer .

 

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Kits .     Kits accounted for 15% of our sales in 2015, excluding tools and skin care. In addition to purchasing our products individually, our consumers may opt to try our sets, kits and palettes, which encourage them to try a complete look and provide greater variety at exceptional value. We also provide special kits during the holiday season that enable consumers to gift their favorite e.l.f. products. These kits also give national retailers an opportunity to prominently display e.l.f.

 

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Beauty tools .     We sell a broad range of prestige-inspired makeup brushes, tools and accessories that enable our consumers to perfect the technique and look they desire. Within tools, many of our brushes are top sellers, including our e.l.f. 11 Piece Brush Collection for $ 30 and our e.l.f. Kabuki Face Brush for $ 6. Our tools are highly complementary to our eye, lip and face makeup and round out what our consumers need to play beautifully. We currently offer beauty tools, including brush sets, with retail prices ranging from $ 1 to $ 35.

 

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Skin care .     In late 2015, we launched our skin care line. Inspired by global and prestige trends, e.l.f. skin care provides the consumer with a luxurious beauty experience – high-quality formulas with prestige-like componentry and packaging, all at an extraordinary value. Our skin care assortment offers a regimen of hydration-focused products and includes moisturizers, cleansers, eye and night creams, masks, an exfoliating scrub and a serum. Leveraging our historical success with tools, we also offer skin care-specific brushes. Within the first year of our skin care launch, the e.l.f. Daily Hydration Moisturizer received an Allure Best of Beauty award. Our skin care products have a retail price range between $ 4 and $ 12.

 

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Fast-cycle innovation and validation model

We believe innovation is key to our success and that we are a leader in the industry in speed and new product introductions. We have built an innovation capability that can progress a new e.l.f. beauty product from concept to online launch in as few as 20 weeks from concept, and 27 weeks on average. In 2015, this capability allowed us to introduce over 50 new items across eyes, lips, face, tools, kits and skin care, and 40% of our retail sales came from products launched in the last three years based on data from Nielsen.

We leverage multiple sources of inspiration to develop our new product ideas, including global trend assessments, supplier and industry research, strategic customer input and consumer feedback and insights. Our innovation strategy is underpinned by three key pillars to delight consumers:

 

  First-to-mass.     “First-to-mass” products are inspired by trends in prestige beauty that we bring to the mass market. As consumers are increasingly savvy and knowledgeable about trends in the prestige market, they look for how they can achieve on-trend looks, but at an accessible price. In the past eight years, we have introduced over 50 new items. Examples include the e.l.f. Mineral Infused Face Primer at $ 6 versus a prestige primer at $ 36, e.l.f. Baked Eyeshadow Trio at $ 4 versus a competitive baked eyeshadow trio at $ 28, the e.l.f. Contouring Brush at $ 6 versus a similar type of brush at $ 35 and the e.l.f. Lip Exfoliator at $ 3 versus a similar type of lip treatment at $ 24.

 

  Core expansion.     Core expansion items are those trend-inspired products across eyes, lips, face and tools that augment our assortment and deliver extraordinary value across price points. We consistently evaluate our core eyes, lips, face and tools offerings and develop new items based on category trends, consumer feedback and other market intelligence. We had over 50 new launches in 2015, including Intense Ink Eyeliner at $ 3, Instant Lift Brow Pencil at $ 2, Gotta Glow Lip Tint at $ 6 and Matte Magic Mist & Set Spray at $ 4.

 

  Adjacencies.     We believe that we can reapply our model to launch products into adjacent categories. We recently entered the skin care category with a high-quality skin care product assortment priced at just $ 4 to $ 12. Inspired by global and prestige trends, e.l.f. skin care provides the consumer with a luxurious beauty experience – high-quality formulas with prestige-like componentry and packaging, all at an extraordinary value.

When we launch a new e.l.f. beauty product online, we leverage our unique community of digitally engaged consumers. With 25 million visits per year and over 100,000 online reviews, elfcosmetics.com is a vehicle for refining products and determining best sellers. We are able to analyze sales results, reviews and feedback through social media to provide a quick indication of a product’s performance. We use this valuable data to introduce validated, best-selling products to retail, which drives leading performance relative to others in the category. Not only does this fast, high-output, testing methodology result in leading performance in retail, it also contributes to building our consumer relationships. Our consumers are part of the process, and know that their feedback is valuable and impacts the brand. We believe our active dialogue with our consumers provides us with a highly differentiated perspective on innovation and informs the launch, validation and refinement of our products.

 

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Unlike many cosmetics companies that launch products in concert with the timing of when retailers rearrange or restock products, we leverage our multi-channel model to launch products throughout the year and test them online and in e.l.f. stores. Distribution is generally only broadened to our retail customers after we receive strong consumer validation in those channels, leading to strong productivity and year-over-year comparable store sales growth. This focus on best sellers allows us to present retail customers with a broad portfolio of highly productive products with focused color assortments, which contrasts starkly with most cosmetics companies’ broad color assortments spread over fewer items.

 

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True multi-channel brand blurs the lines between mass and prestige

We are a true multi-channel brand with strength across e-commerce, national retailers and our e.l.f. stores. Our ability to engage our consumers across multiple touch points differentiates e.l.f. from traditional mass brands, which typically focus on one channel. We also leverage insights gained from each channel to drive performance across the business.

e-commerce .      We have the #1 mass cosmetics brand e-commerce site with over 25 million visitors per year and 4.5 million cumulative transactions representing over 50 million units. elfcosmetics.com also has the highest revenue, traffic, time spent on-site and units per transaction of any mass cosmetics brand website. Our e-commerce business serves as a strong source of sales and an important component of our engagement and innovation model. We have nurtured a loyal, highly active online community for over a decade. Our foundation as an e-commerce company and our digital engagement model drive high conversion on elfcosmetics.com, where we sell our full product offering of over 900 SKUs. Offering a dynamic platform for consumers to play beautifully , elfcosmetics.com reflects our passionate consumer base with its more than 100,000 ratings. Over the past two years, we have received 18 times more reviews than the industry average.

National retailers .     We currently sell our products in approximately 19,000 retail stores in the United States in the mass, drug store, food, and specialty retail channels. We are one of the fastest growing cosmetics brands at Target, Walmart and CVS. e.l.f. offers retailers a compelling retailer value proposition driven by four key factors:

 

  Highly sought after consumers.     One of our greatest strengths is the consumer that we attract. We appeal to a broad base of beauty consumers—from experts to novices who enjoy experimenting with makeup—and have drawn a strong following among the most sought after and heaviest users of cosmetic products. Many traditional brands have rapidly aging user bases. In contrast, we have strong appeal with Millennials and Hispanics, two of the fastest growing demographic groups in the United States.

 

  Innovation.     The key drivers of growth in the cosmetics industry are innovation and new product launches, and we have a track record of bringing prestige-inspired innovation quickly to the mass channel. We have built an innovation capability that can progress a new e.l.f. beauty product from concept to online launch in as few as 20 weeks and 27 weeks on average. Our new on-trend products attract consumers to our retail customers’ stores and drive increased sales from consumers wanting to experience these trending products.

 

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  Highly incremental sales.     Most new brands entering a category capture the majority of their sales from existing brands instead of adding new sales to the category. By contrast, e.l.f. has proven its ability to deliver incremental category sales across a range of retail formats. A recent controlled store test at a national retailer highlighted that over 50% of e.l.f.’s sales were incremental to the key product categories upon introduction of e.l.f. products at the retailer, as opposed to diverting sales from another brand on the shelf.

% of e.l.f. Sales Incremental to Select Cosmetics Product Categories

 

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Source: e.l.f. point of sale data from a national retailer s internal data

 

  High productivity.     From a productivity standpoint, we stand out in comparison to other brands in the category on both a dollar sales and unit sales basis. The chart below illustrates our productivity at one of our largest retail customers.

Brand Productivity Per Linear Foot Per Week at a National Retailer

 

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Source: U.S. cosmetics retail sales per Nielsen XAOC including C-Stores database for a national retailer for the 52 weeks ended February 19, 2016 and linear feet per Retail Merchandising Services, Inc. data

Our top 10 retail customers represented 72% of our net sales in 2015. Our largest retail customers, Target and Walmart, accounted for 28% and 23%, respectively, of our net sales in 2015.

Target is our longest-standing national retail customer and a key beauty destination for many consumers. At Target, we achieved double digit growth in retail sales from 2014 to 2015. e.l.f. is Target’s most productive cosmetics brand measured in sales per linear foot, and we have had full chain distribution in the United States since 2013. We have been steadily growing shelf space at Target and believe there is a significant opportunity for more space given the productivity of our larger sets and a strong innovation pipeline.

At Walmart, the world’s largest retailer, we have significantly outpaced cosmetics category growth and continue to earn additional space. Cosmetics is an important category for Walmart, with sales of over $ 2 billion in the United States in 2014. Similar to our experience at Target, we have been able to grow Walmart’s cosmetics category through incremental consumer purchases and strong productivity. As of August 2016, e.l.f. products were sold in approximately 85% of Walmart’s U.S. stores. Given our strong productivity, we believe we have the opportunity to expand distribution to more stores as well as gain additional shelf space.

In the drug channel, CVS, the largest drug store chain in the United States, undertook a national roll-out of e.l.f. in 2015 based on strong test results. We are still in the early stages of both CVS and broader drug channel expansion.

 

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In the specialty channel, we have full chain distribution at Old Navy, and the brand continues to earn incremental space as a result of strong productivity.

e.l.f. store s .     We were the first mass cosmetics brand with our own stores, a format historically limited to prestige brands. We believe our stores serve as one of our most effective and efficient vehicles for marketing and consumer engagement. e.l.f. stores showcase a broad assortment of e.l.f. products, create an environment dedicated to play beautifully , and allow us to test and validate new products. As of August 2016, we had nine e.l.f. stores in the New York metro area located in high-traffic malls and urban areas.

International .     e.l.f. products are sold in a number of international markets. Similar to how we started in the United States, we believe we can introduce e.l.f. via an e-commerce platform to test new markets and expand our distribution based on the market-specific learnings we gather online. This approach, coupled with our rapid, low-cost innovation, provides flexibility and a strong foundation for growth in new and established markets abroad. We are focused on growing sales in three priority international markets: Canada, the United Kingdom and Mexico. We have also identified other attractive markets where we believe the e.l.f. brand can succeed, including Australia, Chile, France and Vietnam, among others. International sales accounted for 7% of net sales in 2015.

High-performance team and culture

Our CEO Tarang Amin joined us in January 2014, and under his leadership we have assembled a world-class management team that possesses an excellent track record of results and has successfully worked together for many years. During the team’s prior tenure at Schiff Nutrition (NYSE: SHF), the company grew in enterprise value from $ 190 million to $ 1.5 billion in less than two years and was acquired by Reckitt Benckiser (London Stock Exchange: RB). With strong backgrounds from The Clorox Company, The Procter & Gamble Company, L’Oreal S.A., Mary Kay Inc., TPG and other leading companies, our team has demonstrated skills in building brands, leading innovation, expanding distribution, making acquisitions and driving world-class operations. We operate with a high-performance team culture. We communicate with great candor and transparency in the spirit of helping the team succeed, make quick decisions and drive executional excellence. The combination of a talented team, strong culture and values and disciplined execution forms the foundation of our success.

Our values guide our behavior and set the tone for our high-performance team culture:

 

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The e.l.f. growth strategy

We believe e.l.f. is one of the most disruptive brands in the cosmetics industry. We are in the early stages of development, with significant room to grow by converting more consumers to the brand, making e.l.f. products more widely available and offering more innovative products to our consumers. We expect the United States to be the largest source of our growth over the next few years and also see an opportunity to expand in select international markets. We also believe we have an opportunity to improve our margins through greater operating leverage and efficiency.

We have made substantial investments over the last two years and believe we are well positioned for continued growth driven by four strategies:

 

  Build a great brand

Draw new consumers to the brand .     We have a loyal consumer following, as illustrated by our repeat purchase rates which are among the highest in the industry: 58% of our consumers purchase one or more additional products within 12 months of initial purchase. We believe we can significantly grow this following of passionate consumers from current levels. Increasing brand awareness is a major growth driver for our company, as it has historically led to strong trial and high repeat purchase rates. e.l.f. is still unknown to many women, with only 6% unaided and 58% aided awareness as of August 2015. In contrast, many traditional brands have unaided awareness close to 40% and aided awareness close to 100%. We plan to continue to drive awareness and draw consumers to the brand.

Encourage current consumers to use more e.l.f. products.     Our consumers’ loyalty to the e.l.f. brand drives growth through increased usage of our products across categories and advocacy of our brand to other potential consumers. Many of our consumers regularly visit elfcosmetics.com, where in 2015 they bought over nine units per transaction on average. We have designed our product assortment to encourage cross-category purchases across eyes, lips, face, tools and skin care. We find that consumers often enter the brand through one of our lower priced items and then purchase other e.l.f. products across categories once they understand our extraordinary value proposition. Our consumers also seek out our innovation, buying new products both online and in stores. We believe that through sustained innovation and efficient marketing, we will increase the number of e.l.f. items our consumers purchase.

 

  Lead innovation

Use innovation to drive sales and margin.     We have a track record of bringing prestige-inspired innovation quickly to the mass channel. We expect to continue to leverage our rapid innovation and flexible supply chain to introduce new products across the eyes, lips, face and tools categories. We believe our innovation has also led consumers to purchase products at higher price points while still delivering an extraordinary value. Many consumers who first tried a $ 1 item have now migrated to $ 3 to $ 8 items, which often have higher margins than our less expensive products.

Expand into skin care and relevant adjacencies.     We have successfully brought a prestige-like approach to mass cosmetics at extraordinary value. We believe there are opportunities to use this same approach in other beauty categories, leveraging our brand equity and relationship with e.l.f. enthusiasts to extend our brand into adjacent segments. One such category is skin care, which generated $ 16 billion in retail sales in the United States and $ 110 billion globally in 2015. We recently introduced a high-quality skin care line retailing for just $ 4 to $ 12 per product, a fraction of the price of prestige brands. We plan to capitalize on our innovation expertise to develop new products in other adjacent categories.

 

  Expand brand penetration

Grow space allocation with our existing national retailers.     We have significant potential upside in deepening distribution with our existing retailers by continuing to leverage our productivity, innovation and growth to win more shelf space. Even at our largest customers, e.l.f. is currently in less than 6% of the space allocated to cosmetics despite having among the highest productivity in the category. While certain legacy cosmetics brands have an average of 15 to 18 feet of inline space in major retailers, e.l.f.’s average is only five feet. We believe that our strong performance will enable our shelf presence in our current retailers to become larger over time.

Increase number of new customers.     We are one of the fastest growing cosmetics brands at Target, Walmart and CVS, and our growth rates and productivity are among the highest in the industry. We have major distribution whitespace, as we are currently in only approximately 19,000 national retail stores in the United States and believe there are thousands of additional stores available to us.

 

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Grow our direct-to-consumer business.     We plan to continue to grow elfcosmetics.com by driving traffic and conversion. In addition, our e.l.f. stores have been highly productive and profitable. As of August 2016, we operated nine stores in the New York metro area and we plan to selectively open more e.l.f. stores nationally in high-traffic areas.

Expand internationally.     We operate in a number of countries outside the United States, which accounted for 7% of our net sales in 2015. Given the portability of the e.l.f. brand, we believe that we have a significant opportunity in international markets over the long term.

 

  Drive world-class operations

Leverage high-performance team culture and execution capability.     We have made significant investments in our business over the past two years by hiring top talent and building functional capabilities. Our management team comes from leading consumer packaged goods companies and has experience implementing growth strategies and driving operational improvements. We believe what differentiates us from many traditional cosmetics companies is our ability to make fast decisions and execute with excellence. We believe we have a major speed-to-market advantage over many other companies and are highly responsive to retail customer and consumer needs. We will continue to leverage our executional excellence as we seek to become the preferred partner of our key customers.

Drive operating margins and efficiencies.     We have built a low-cost, quality-oriented supply chain with ample capacity to support future growth. We intend to grow our margins by pursuing additional cost savings opportunities and enhancing our product mix through innovation. We also expect to benefit from operating leverage as we scale the business.

Operations

We have developed a scalable, asset-light supply chain centered on speed to market and high-quality at low costs. Our China-based sourcing, quality and innovation teams work with their U.S.-based counterparts to deliver ongoing product quality, innovation and cost savings.

Manufacturing process

Our manufacturing process centers on close collaboration with a network of third-party manufacturers in China. What differentiates us is our ability to drive speed, quality and efficient production. We leverage high annual unit volumes with our suppliers to have them quickly produce small quantities of a new product so that we can launch online in as few as 20 weeks and 27 weeks on average. These early sales provide us with validation data to determine which products to introduce at our national retail customers. Based on what we decide to scale up, we can provide higher, more reliable, longer-term volumes to our manufacturers. We find this process more efficient than making assumptions about what products will sell and being burdened with high levels of working capital.

Over the past two years, we have transformed our China team and supply network to drive even higher quality, while keeping our flexible and low cost structure. We have ample manufacturing capacity as well as back-up capability in the event that one or more suppliers cannot meet our needs. Our broad supply base gives us the ability to fulfill our product requirements and remain cost competitive.

Innovation

Leading innovation is one of our core strategies and is supported by strong research and development capabilities. We have built a team of both internal and external personnel that focuses on a broad range of innovation capabilities including product development, materials science, quality assurance and packaging. Our team delivers dozens of new products every year as well as improvements to our core line.

Our innovation approach is consumer driven. Our product development team works closely with marketing to identify consumer needs, trends and market opportunities. We use these insights to quickly develop and screen prototypes. We utilize elfcosmetics.com to validate our innovation through sales data and direct consumer feedback. This leads to a nimble process that delivers rapid output.

We are passionate about delivering high-quality products. Our in-house quality control, quality assurance and regulatory staff define product specifications and formulas. We partner with a network of third-party manufacturers for production. Product quality and performance is achieved by applying industry standard processes for ingredient integrity and manufacturing compliance. We supplement these processes with both internal and external stability and microbiological testing to monitor compliance with industry and country-specific regulations and standards.

 

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Ingredients and packaging

We work closely with our suppliers on new product innovation and quality. Our innovation team creates our formulas and our suppliers produce to our specifications. With no single product contributing more than 2% of net sales in 2015, and with over 200 materials used in our formulas, we are not overly dependent on any single formula raw material. These raw materials are broadly available and have regular quality testing for ingredient integrity.

e.l.f. team members create our component and secondary packaging specifications and source their production. We have multiple component and packaging suppliers in place with ample back-up capacity. Our co-packers purchase from our packaging suppliers at our pre-negotiated specifications and rates. This allows us to efficiently manage our packaging quality, capacity and cost.

Quality control

We have a comprehensive quality assurance program that gives us visibility into the quality of our products during the sourcing and production cycle. Our innovation team approves product samples and is on-site for initial production runs. Our China-based quality team provides oversight through on-site inspections and audits of our third-party manufacturers as well as component and packaging suppliers. We conduct comprehensive audits at least annually of all our suppliers and have an on-site weekly presence at our primary suppliers, where we inspect and monitor finished and semi-finished product, raw materials, batch records and testing records. We also validate our manufacturers’ finished product testing results with third-party laboratory testing. In the spirit of continual improvement, we have frequent dialogue with our suppliers on quality assurance enhancements.

Warehousing, distribution and logistics

In early 2016, we opened a new distribution center in Ontario, California, to replace our previous distribution center in New Jersey. This facility supports multi-channel shipping, with the ability to pick and ship directly to e-commerce consumers, e.l.f. stores, national retail customers and international customers. We have also invested capital in scanning and conveying technology. Our facility is operated by a leading third-party logistics provider.

Seasonality

Our results of operations are subject to seasonal fluctuations, with net sales in the third and fourth fiscal quarters typically being higher than in the first and second fiscal quarters. The higher net sales in our third and fourth fiscal quarters are largely attributable to the increased levels of purchasing by retailers for the holiday season, and adverse events that occur during the third or fourth quarter could have a disproportionate effect on our results of operations for the entire fiscal year. As a result of higher sales during the third and fourth quarters, our working capital needs are greater during the second and third quarters of the fiscal year. Fluctuations throughout the year are also driven by the timing of product restocking or rearrangement by our major customers as well as our expansion into new customers. Because a limited number of our retail customers account for a large percentage of our net sales, a change in the order pattern of one or more of our large retail customers could cause a significant fluctuation of our quarterly results or reduce our liquidity.

Management information systems

We use our information systems to manage our national retailers, e.l.f. stores, e-commerce and corporate operations. These management information systems provide business process support and intelligence across our multi-channel operations.

In 2015, we embarked on a comprehensive strategy to replace our legacy information system infrastructure. Our new systems employ a comprehensive enterprise resource planning (“ERP”) platform provided and supported by a leading global software partner. This system covers order entry, customer service, accounts payable, accounts receivable, purchasing, asset management and manufacturing.

Our order management process is automated via electronic data interchange with the vast majority of our retail customers feeding orders directly to our ERP platform. From time to time, we enhance and complement the system with additional software. We are currently integrating into a warehouse management system managed by our third-party logistics provider, which will allow us to improve real-time tracking and management of inventory. We are also implementing computerized point-of-sale systems in our e.l.f. stores to enable real-time reporting and analytics.

 

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In connection with our overall strategy and improvement of these processes, we hired a Vice President of Information Technology in 2016 who oversees our systems infrastructure upgrade. We expect these systems to be fully functional by the third quarter of 2016 and have a broader strategic roadmap to continue building our information technology capabilities.

Trademarks and other intellectual property

We believe that our intellectual property has substantial value and has contributed significantly to the success of our business. Our primary trademarks include “e.l.f.,” “eyes lips face” and “play beautifully,” all of which are registered with the U.S. Patent and Trademark Office for our goods and services of primary interest. These trademarks are also registered or have a registration pending in Australia, Brazil, Canada, China, the European Union, India, Mexico, Russia and approximately 18 other countries or registries. We also have numerous other trademark registrations and pending applications for product names and tag lines. Our trademarks are valuable assets that reinforce the distinctiveness of our brand and our consumers’ favorable perception of our products. The current registrations of these trademarks in the United States and foreign countries are effective for varying periods of time between six and 15 years, expire at various times between 2016 and 2028 and may be renewed periodically, provided that we comply with all applicable renewal requirements including, where necessary, the continued use of the trademarks in connection with similar goods. In addition to trademark protection, we own numerous URL designations, including elfcosmetics.com. We also rely on and use reasonable business activities to protect unpatented proprietary expertise and product formulations, continuing innovation and other know-how to develop and maintain our competitive position.

Employees

As of December 31, 2015, we had approximately 159 full-time employees and an additional 72 part-time employees. As of December 31, 2015, we had 104 and 55 full-time employees in the United States and China, respectively. Approximately 93% of our part-time employees worked in our e.l.f. stores. None of our employees are currently covered by a collective bargaining agreement, and we have experienced no work stoppages. We consider our relationship with our employees to be good.

Government regulation

We and our products are subject to regulation by the FDA, the CPSC and the FTC as well as various other federal, state, local and foreign regulatory authorities. These laws and regulations principally relate to the ingredients, proper labeling, advertising, packaging, marketing, manufacture, safety, shipment and disposal of our products.

Under the FDCA cosmetics are defined as articles or components of articles that are applied to the human body and intended to cleanse, beautify or alter its appearance, with the exception of soap. The labeling of cosmetic products is also subject to the requirements of the FDCA, the Fair Packaging and Labeling Act, the Poison Prevention Packaging Act and other FDA regulations. Cosmetics are not subject to pre-market approval by the FDA, however certain ingredients, such as color additives, must be pre-authorized. If safety of the products or ingredients has not been adequately substantiated, a specific warning label is required. Other warnings may also be mandated pursuant to FDA regulations. The FDA monitors compliance of cosmetic products through market surveillance and inspection of cosmetic manufacturers and distributors to ensure that the products neither contain false nor misleading labeling and that they are not manufactured under unsanitary conditions. Inspections also may arise from consumer or competitor complaints filed with the FDA. In the event the FDA identifies false or misleading labeling or unsanitary conditions or otherwise a failure to comply with FDA requirements, we may be required by a regulatory authority or we may independently decide to conduct a recall or market withdrawal of our product or to make changes to our manufacturing processes or product formulations or labels which could result in an insufficient amount of our products in the market and harm our reputation.

The FDA evaluates the “intended use” of a product to determine whether it is a drug, cosmetic product, or both. If a product is intended for use in the diagnosis, cure, mitigation, treatment or prevention of a disease condition or to affect the structure or function of the human body, the FDA will regulate the product as a drug. Drug products will then be subject to applicable requirements under the FDCA. The FDA may also consider labeling claims in determining the intended use of a product. If the FDA considers label claims for our cosmetic products to be claims affecting the structure or function of the human body, or intended for a disease condition, those products may be regulated as “new” drugs. If such products were regulated as “new” drugs by the FDA, it would be necessary to obtain pre-market approval, which includes, among other things, conducting clinical trials to demonstrate safety and efficacy of our products in order to continue marketing those

 

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products. However, we may not have sufficient resources to conduct any required clinical studies and because clinical trial outcomes are uncertain we may not be able to demonstrate sufficient efficacy or safety data to resume future marketing of those products.

Our current products that are intended to treat acne and used as sunscreen are considered OTC drug products by the FDA. Our OTC products are subject to regulation through the FDA’s “monograph” system which specifies, among other things, permitted active drug ingredients and their concentrations. The FDA’s monograph system also provides the permissible product claims and certain product labeling requirements, based on the intended use of the product. Our OTC drug products must be manufactured consistent with the FDA’s current GMP requirements, and the failure to maintain compliance with these requirements could require us to conduct recalls, market withdrawals, or make changes to our manufacturing practices. Any of these actions could result in harm to our reputation or affect our ability to provide sufficient product to the market.

The FDA may change the regulations as to any product category, requiring a change in labeling, product formulation or analytical testing. However, we may not have sufficient resources to conduct any required analytical testing, reformulate the product or make required label changes, possibly resulting in an inability to continue or resume marketing these products. Any inquiries or investigations from the FDA, FTC or other foreign regulatory authorities into the regulatory status of our cosmetic products and any subsequent interruption in the marketing and sale of those products could severely damage our brand and company reputation in the marketplace.

We are subject to regulation by the CPSC under the Consumer Product Safety Act, as amended by the Consumer Product Safety Improvement Act of 2008. These statutes and the related regulations ban from the market consumer products that fail to comply with applicable product safety laws, regulations, and standards. The CPSC has the authority to require the recall, repair, replacement or refund of any such banned products or products that otherwise create a substantial risk of injury and may seek penalties for regulatory noncompliance under certain circumstances. CPSC regulations also require manufacturers of consumer products to report to the CPSC certain types of information regarding products that fail to comply with applicable regulations. Certain state laws also address the safety of consumer products, and mandate reporting requirements, and noncompliance may result in penalties or other regulatory action.

The FTC, FDA and other government authorities also regulate advertising and product claims regarding the safety, performance and benefits of our products. These regulatory authorities typically require a safety assessment of the product and reasonable basis to support any marketing claims. What constitutes a reasonable basis for substantiation can vary widely from market to market, and there is no assurance that our efforts to support our claims will be considered sufficient. The most significant area of risk for such activities relates to improper or unsubstantiated claims about the use and safety of our products. If we cannot adequately support safety or substantiate our product claims, or if our promotional materials make claims that exceed the scope of allowed claims for the classification of the specific product, the FDA, FTC or other regulatory authority could take enforcement action or impose penalties, such as monetary consumer redress, requiring us to revise our marketing materials, amend our claims or stop selling certain products, all of which could harm our business, financial condition and results of operations.

We are also subject to a number of U.S. federal and state and foreign laws and regulations that affect companies conducting business on the Internet, including consumer protection regulations that regulate retailers and govern the promotion and sale of merchandise. Many of these laws and regulations are still evolving and being tested in courts, and could be interpreted in ways that could harm our business. These may involve user privacy, data protection, content, intellectual property, distribution, electronic contracts and other communications, competition, protection of minors, consumer protection, telecommunications, product liability, taxation, economic or other trade prohibitions or sanctions and online payment services. In particular, we are subject to federal, state and foreign laws regarding privacy and protection of people’s data. Foreign data protection, privacy and other laws and regulations can be more restrictive than those in the United States. U.S. federal and state and foreign laws and regulations are constantly evolving and can be subject to significant change. In addition, the application, interpretation and enforcement of these laws and regulations are often uncertain, and may be interpreted and applied inconsistently from country to country and inconsistently with our current policies and practices. There are also a number of legislative proposals pending before the U.S. Congress, various state legislative bodies and foreign governments concerning privacy and data protection which could affect us. For example, the European Commission recently published the final draft of new data protection regulations that include operational requirements for companies that receive personal data which are different than those previously in place in the European Union, and also include significant penalties for non-compliance.

 

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Environmental, health and safety

We are subject to numerous foreign, federal, provincial, state, municipal and local environmental, health and safety laws and regulations relating to, among other matters, safe working conditions, product stewardship and environmental protection, including those relating to emissions to the air, discharges to land and surface waters, generation, handling, storage, transportation, treatment and disposal of hazardous substances and waste materials, and the registration and evaluation of chemicals. We maintain policies and procedures to monitor and control environmental, health and safety risks, and to monitor compliance with applicable environmental, health and safety requirements. Compliance with such laws and regulations pertaining to the discharge of materials into the environment, or otherwise relating to the protection of the environment, has not had a material effect upon our capital expenditures, earnings or competitive position. However, environmental laws and regulations have tended to become increasingly stringent and, to the extent regulatory changes occur in the future, they could result in, among other things, increased costs to our company. For example, certain states such as California and the U.S. Congress have proposed legislation relating to chemical disclosure and other requirements related to the content of our products.

Description of property

Our principal executive office is located in Oakland, California. We also have one distribution center located in Ontario, California as well as offices in New York and Shanghai, China. In addition, we operated nine e.l.f. stores in the New York metro area as of August 2016. All of our properties are leased. The leases expire at various times through 2026, subject to renewal options. We consider our properties to be generally in good condition and believe that our existing facilities are adequate to support our existing operations.

Legal proceedings

We are from time to time subject to, and are presently involved in, litigation and other proceedings. We believe that there are no pending lawsuits or claims that, individually or in the aggregate, may have a material adverse effect on our business, financial condition or results of operations.

 

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Management

Executive officers and directors

Below is a list of our executive officers and directors and their respective ages and a brief account of the business experience of each of them as of August 1, 2016.

 

Name    Age      Position

Executive Officers

     
Tarang P. Amin      51       Chairman, Chief Executive Officer and Director
John P. Bailey      35       President and Chief Financial Officer
Richard F. Baruch, Jr.      48       Senior Vice President and Chief Commercial Officer
Erin C. Daley      45       Senior Vice President and Chief Marketing Officer
Jonathan T. Fieldman      46       Senior Vice President, Operations
Scott K. Milsten     
46
  
   Senior Vice President, General Counsel, Corporate Secretary & Chief People Officer
Non-Employee Directors      
Lauren Cooks Levitan      50       Director
William E. McGlashan, Jr.      52       Director
Joseph A. Shamah      35       Director
Sabrina L. Simmons      53       Director
Maureen C. Watson      48       Director
Richard G. Wolford      71       Director

 

Executive officers and employee directors

Tarang P. Amin.      Mr. Amin has served as our Chief Executive Officer and Director since January 2014, and has served as our Chairman since August 2015. Mr. Amin has more than 25 years of consumer products experience, as well as a demonstrated record of driving profitable growth at the companies he leads. Previously, he served as President, Chief Executive Officer and Director of Schiff Nutrition, a manufacturer of nutritional supplements, from March 2011 to January 2013. Under his leadership, Schiff, with leading brands Airborne, MegaRed, Digestive Advantage and Move Free, grew enterprise value from $ 190 million to $ 1.5 billion. Prior to that, Mr. Amin worked for The Clorox Company, a multinational manufacturer and marketer of consumer products, from December 2002 to March 2011. He served as Vice President, General Manager of The Clorox Company’s $ 1.7 billion Litter, Food and Charcoal Strategic Business Units, taking Kingsford, Hidden Valley and Fresh Step to new records. He also served in senior management roles that helped to double the sales of the global Clorox franchise to $ 1.5 billion. Prior to Clorox, Mr. Amin held management positions at Procter & Gamble, a multinational consumer goods company, where he helped grow Pantene’s sales from $ 50 million to $ 2 billion, as well as helped increase sales of Bounty by $ 300 million. Mr. Amin earned his B.A. in international policy and M.B.A. from Duke University. We believe Mr. Amin’s executive leadership skills and considerable experience in consumer products provide him with the qualifications and skills to serve as a member of our board of directors.

John P. Bailey.      Mr. Bailey has served as our President and Chief Financial Officer since August 2015. Previously, from July 2010 to August 2015, Mr. Bailey served as Partner with TPG, a global investment firm, where he was responsible for leading the consumer sector for TPG Growth, LLC, the middle market and growth equity platform of TPG and an affiliate of the Company. While at TPG, Mr. Bailey served as a member of the board of directors of the Company, as well as a number of portfolio companies including Angie’s Artisan Treats, Beautycounter, Fender and Ride and provided significant contributions to the board of directors of Schiff Nutrition. Prior to joining TPG, Mr. Bailey was with Greenwich, Connecticut-based North Castle Partners, a consumer private equity firm focused in the healthy, active and sustainable living sectors, focusing on consumer and retail investments in the personal care, food and beverage, fitness and recreation, vitamin minerals, and supplements and OTC health sectors. During that time, Mr. Bailey served on the boards of directors of Cascade Sports, Octane Fitness and Red Door Spas, and worked closely with a number of other portfolio companies. Prior to North Castle,

 

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Mr. Bailey was in the investment banking division of Credit Suisse First Boston. Mr. Bailey earned his B.B.A. at the University of Michigan Business School.

Richard F. Baruch Jr.     Mr. Baruch has served as our Senior Vice President and Chief Commercial Officer since February 2014. Mr. Baruch most recently served as Senior Vice President and Chief Commercial Officer at Schiff Nutrition from July 2012 to January 2013. From December 2010 to June 2012, he was Vice President, Category Advisory Services at Coca-Cola Refreshments, a division of The Coca-Cola Company, a leading global beverage company, where he led an initiative to build a new organization and bring a new set of capabilities to Coca-Cola’s North American business. From January 2009 to December 2012, Mr. Baruch was President and Chief Operating Officer of Cotn’Wash, Inc., a laundry products company. Prior to that, Mr. Baruch spent 14 years at The Clorox Company in a number of leadership roles, with the most recent as Vice President and General Manager of the Home Care business. He began his career at Procter & Gamble in various sales management roles. Mr. Baruch holds a B.A. in English from the University of Pennsylvania.

Erin C. Daley.      Ms. Daley has served as our Senior Vice President and Chief Marketing Officer since February 2014. Prior to that, Ms. Daley served as Vice President of Marketing and New Products at Schiff Nutrition from September 2011 to January 2013, having led initiatives resulting in more than 35% of company revenue being generated from new items and having established a future product pipeline valued in excess of $ 100 million. From February 2013 to January 2014, Ms. Daley served as a consultant for Reckitt Benckiser, a multinational producer of health, hygiene and home products, in support of the Schiff business integration, as well as for several health and wellness consumer start-ups. Previously, Ms. Daley worked for Pacific Gas & Electric Company, where she served as Director of Solutions Marketing from January 2010 to September 2011, and Director, Corporate Branding from December 2008 to December 2010. From July 2004 to November 2007, she served as a Brand Manager at Procter & Gamble where she launched Crest Whitestrips and developed Charmin Ultra Strong. She began her career in Washington, D.C. as a legislative affairs and communications representative. Ms. Daley holds a B.A. in Economics from the University of Michigan and an M.B.A. from Cornell University.

Jonathan T. Fieldman .    Mr. Fieldman has served as our Senior Vice President, Operations since July 2016. Prior to that, Mr. Fieldman served as Senior Vice President, Operations at Angie’s Boom Chicka Pop, a snack food company, from January 2015 to July 2016. From January 2014 to January 2015, Mr. Fieldman served as Chief Supply Officer for Shaklee Corporation, a natural nutrition company. Previously, Mr. Fieldman worked for Schiff Nutrition, where he served as Senior Vice President, Operations from May 2011 to February 2013. Prior to Schiff Nutrition, Mr. Fieldman spent 12 years at The Clorox Company in various supply chain roles, including Planning Director, Sourcing Director and Plant Manager, with the most recent as Vice President, Specialty Supply Chain. Prior to that, Mr. Fieldman worked for General Mills, Inc., a multinational manufacturer and marketer of branded consumer foods, for eight years in a variety of manufacturing roles. Mr. Fieldman holds a B.S. in Industrial Engineering and Engineering Management from Stanford University.

Scott K. Milsten.      Mr. Milsten has served as our Senior Vice President, General Counsel and Corporate Secretary since January 2014 and, in addition, as our Chief People Officer since August 2016. Previously, Mr. Milsten served as Senior Vice President, General Counsel and Corporate Secretary at Schiff Nutrition from July 2011 to January 2013. Prior to that, Mr. Milsten was Senior Vice President, General Counsel and Corporate Secretary of Celera Corporation, a healthcare diagnostics company, from August 2009 until Celera’s sale to Quest Diagnostics Incorporated in June 2011. He also served as Vice President, General Counsel and Corporate Secretary of Celera from November 2008 to August 2009. Prior to Celera, Mr. Milsten was Deputy General Counsel for Gen-Probe Incorporated, a molecular diagnostic products and services company. Prior to joining Gen-Probe, he practiced corporate law with the law firm of Latham & Watkins LLP. Mr. Milsten holds a J.D. from the University of Pennsylvania Law School and a B.A. in English from Duke University.

Non-employee directors

Lauren C ooks Levitan.     Ms. Levitan has served as a member of our board of directors since June 2016. Ms. Levitan currently serves as Chief Financial Officer of Fanatics, Inc., a retailer of licensed sports apparel and merchandise, a position she has held since June 2015. Previously, from January 2009 to May 2015, Ms. Levitan was Co-Founder and Managing Partner at Moxie Capital LLC, a private equity firm, where she provided capital investment and advisory services to branded, consumer-facing businesses that operated in wholesale, retail, e-commerce and direct sales. Prior to that, she served as Managing Director and Senior Research Analyst at Cowen & Company, an investment bank, and as Managing Director at Robertson Stephens, an investment bank, and worked in various capacities in the retail industry at Crate & Barrel and the Gymboree Corporation and in equity capital markets and investment banking at Goldman Sachs. She received her B.A. in Political Science from Duke University and received her M.B.A. from Stanford University Graduate School of Business. We believe Ms. Levitan’s operational, financial and strategic experience across a variety of retail businesses provide her with the qualifications and skills to serve as a member of our board of directors.

 

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William E. McGlashan, Jr.     Mr. McGlashan has served as a member of our board of directors since August 2015 and has been designated to serve as a member of our board by our Sponsor. Mr. McGlashan is the Managing Partner of TPG Growth and a member of the TPG Executive Committee. Mr. McGlashan currently serves on the boards of directors of several private companies. Mr. McGlashan served as a director of SuccessFactors, Inc. from 2005 to 2012, where he served on the audit committee, nominating and governance committee and mergers & acquisition committee from 2007 to 2012. Mr. McGlashan also served as a director of Schiff Nutrition from 2010 to 2012, where he served on the compensation committee from 2010 to 2012. From December 2001 to March 2004, Mr. McGlashan served as Chairman of the board of directors and Chief Executive Officer of Critical Path, Inc., a digital communications software company. Mr. McGlashan holds a B.A. in History from Yale University and an M.B.A. from Stanford University Graduate School of Business. We believe Mr. McGlashan’s significant corporate governance experience and operational expertise provide him with the qualifications and skills to serve as a member of our board of directors.

Joseph A. Shamah.     Mr. Shamah has served as a member of our board of directors since January 2014 and has been designated to serve as a member of our board by J.A. Cosmetics Corp. Mr. Shamah founded the Company in 2004 with his father, Alan Shamah. Mr. Shamah served as Chief Executive Officer of the Company until the TPG acquisition in January 2014, at which time he continued to serve as an officer and member of our executive team until December 2015. He graduated from New York University’s Stern School of Business and serves as a president of the board of trustees of the Barkai Yeshiva School in Brooklyn, New York. We believe Mr. Shamah’s institutional knowledge and experience with the Company provide him with the qualifications and skills to serve as a member of our board of directors.

Sabrina L. Simmons.     Ms. Simmons has served as a member of our board of directors since March 2016. Ms. Simmons currently serves as Executive Vice President and Chief Financial Officer of The Gap, Inc., a clothing company, a position she has held since January 2008. Previously, Ms. Simmons also served in the following positions at Gap: Executive Vice President, Corporate Finance from September 2007 to January 2008, Senior Vice President, Corporate Finance and Treasurer from March 2003 to September 2007, and Vice President and Treasurer from September 2001 to March 2003. Prior to that, Ms. Simmons served as Chief Financial Officer and an executive member of the board of directors of Sygen International PLC, a British genetics company. Prior to that, Ms. Simmons was Assistant Treasurer at Levi Strauss & Co., a clothing company. Ms. Simmons currently serves as a member of the board of directors of Williams-Sonoma, Inc., a consumer retail company, where she is a member of the audit and finance committee. Ms. Simmons currently also serves on the Haas School of Business Advisory Board and is a member of the Gap Foundation Board of Trustees. Ms. Simmons received her B.S. in Business from the University of California, Berkeley and received her M.B.A. from the Anderson School at the University of California, Los Angeles. Ms. Simmons is a certified public accountant (inactive status). We believe Ms. Simmons’ significant financial and accounting experience provide her with the qualifications and skills to serve as a member of our board of directors.

Maureen C. Watson.     Ms. Watson has served as a member of our board of directors since August 2015 and has been designated to serve as a member of our board by our Sponsor. Ms. Watson currently serves as Chief Product Officer of Madison Reed, Inc., a hair care company, a position she has held since August 2015. Previously, she served at Sephora USA, Inc., a cosmetics company, as Senior Vice President, Merchandising from March 2013 to March 2015. Prior to that, she served as Senior Vice President, Global Sales and Merchandising of Lucky Brand Jeans (Lucky Brand, Inc.), a clothing company, from September 2010 to September 2011. Prior to that, Ms. Watson served in various leadership roles at The Gap, Inc. Ms. Watson earned a B.A. in Political Science and French from Middlebury College. We believe Ms. Watson’s extensive consumer products and cosmetics experience provide her with the qualifications and skills to serve as a member of our board of directors.

Richard G. Wolford.     Mr. Wolford has served as a member of our board of directors since September 2014 and has been designated to serve as a member of our board by our Sponsor. Mr. Wolford served as interim President and Chief Executive Officer of Diamond Foods, Inc., an American packaged food company, from February 2012 until May 2012. Mr. Wolford served as Chief Executive Officer and a director of Del Monte Foods Company, a North American food production and distribution company, from April 1997 until March 2011. He was elected President of Del Monte in February 1998 and Chairman of the board of directors in May 2000. From 1988 to 1996, Mr. Wolford was Chief Executive Officer of HK Acquisition Corp., where he developed food industry investments with venture capital investors. From 1967 to 1987, he held a variety of positions at Dole Foods, an agricultural multinational corporation, including President of Dole Packaged Foods from 1982 to 1987. Mr. Wolford was a member of the board of directors of Diamond Foods, Inc. from April 2011 until May 2012. Mr. Wolford served on the board of directors of Schiff Nutrition from September 2011 to January 2013. Mr. Wolford served as a member of the board of directors of Pulte Homes, Inc., a homebuilding company, from May 2008 to August 2009. In addition, Mr. Wolford served as Chairman of the board of directors of the Grocery Manufacturers Association (“GMA”), from January 2010 to March 2011, resigning upon the sale of Del Monte. As Chairman of GMA, Mr. Wolford also served on the board of directors of Consumer

 

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Goods Forum, a global association of consumer packaged goods companies, retailers and manufacturers. Prior to that, Mr. Wolford served as Vice Chairman of GMA from January 2008 to January 2010, and chaired GMA’s Industry Affairs Council from June 2005 to January 2010. In 2011, Mr. Wolford was the recipient of the GMA Hall of Achievement award honoring extraordinary leadership and commitment to the consumer packaged goods industry. Mr. Wolford holds a B.A. in Economics from Harvard University. We believe Mr. Wolford’s extensive public company management, reporting, finance and corporate governance experience, as well as deep knowledge of the consumer products industry, provide him with the qualifications and skills to serve as a member of our board of directors.

Composition of the board of directors

Director independence

Our board of directors currently consists of seven members. Our board of directors has determined that each of Mses. Levitan, Simmons and Watson and Messrs. McGlashan and Wolford qualify as independent directors in accordance with the New York Stock Exchange (“NYSE”) listing requirements. Mr. Amin is not considered independent because he is an employee of the Company, and Mr. Shamah is not considered independent because he was an employee of the Company until December 2015. NYSE’s independent director definition includes a series of objective tests, including that the director is not, and has not been within the last three years, one of our employees and that neither the director nor any of his or her family members has engaged in various types of business dealings with us. In addition, as required by NYSE rules, our board of directors has made an affirmative determination as to each independent director that he or she has no material relationship with the Company (either directly or as a partner, stockholder or officer of an organization that has a relationship with us). In making these determinations, our board of directors considered ownership of our stock and reviewed and discussed information provided by the directors and us with regard to each director’s business and personal activities and relationships as they may relate to us and our management. There are no family relationships among any of our directors or executive officers.

Classified board of directors

In accordance with our amended and restated certificate of incorporation to be in effect immediately prior to the consummation of this offering, our board of directors will be divided into three classes with staggered, three-year terms. At each annual meeting of stockholders, the successors to directors whose terms then expire will be elected to serve from the time of election and qualification until the third annual meeting following election. Effective upon the consummation of this offering, we expect that our directors will be divided among the three classes as follows:

 

  the Class I directors will be Mses. Simmons and Watson, and their terms will expire at the annual meeting of stockholders to be held in 2017;

 

  the Class II directors will be Messrs. Shamah and Wolford, and their terms will expire at the annual meeting of stockholders to be held in 2018; and

 

  the Class III directors will be Messrs. Amin and McGlashan and Ms. Levitan, and their terms will expire at the annual meeting of stockholders to be held in 2019.

Our amended and restated certificate of incorporation will provide that the authorized number of directors may be changed only by resolution of the board of directors. Any additional directorships resulting from an increase in the number of directors will be distributed among the three classes so that, as nearly as possible, each class will consist of one-third of the directors. The division of our board of directors into three classes with staggered three-year terms may delay or prevent a change of our management or a change in control of our company.

For so long as our Sponsor has the right to designate at least one director for nomination under the Amended Stockholders Agreement, the number of directors serving on our board of directors will not exceed nine; provided, that the number of directors may be increased if necessary to satisfy the requirements of applicable laws and stock exchange regulations.

Board composition arrangements

Following this offering, the composition of our board of directors will be governed by the Amended Stockholders Agreement and the related provisions of our amended and restated certificate of incorporation. Pursuant to the terms of the Amended Stockholders Agreement, our Sponsor will have the right to designate up to three members of our board of directors so long as it holds at least 30% of our outstanding common stock, two members of our board of directors so long as it holds less than 30% but greater than or equal to 20% of our outstanding common stock, and one member of our board of directors so

 

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long as it holds less than 20% but greater than or equal to 5% of our outstanding common stock. Also under our Amended Stockholders Agreement, J.A. Cosmetics Corp. will have the right to designate one member of our board of directors so long as it holds at least 10% of our outstanding common stock. In addition, subject to applicable laws and stock exchange regulations, our Sponsor will have the right to have a representative appointed to serve on each committee of our board of directors other than the audit committee for so long as our Sponsor has the right to designate at least one director for election to our board. Messrs. McGlashan and Wolford and Ms. Watson were designated to serve on our board of directors by our Sponsor, and Mr. Shamah was designated to serve on our board of directors by J.A. Cosmetics Corp. To the extent not inconsistent with Section 141(k) of the DGCL and our amended and restated certificate of incorporation, any director who is nominated by our Sponsor or J.A. Cosmetics Corp. may only be removed by our Sponsor or J.A. Cosmetics Corp., respectively, and if our Sponsor or J.A. Cosmetics Corp. provides notice of its desire to remove one of its nominated directors, our board of directors and the other parties to the Amended Stockholders Agreement shall take all reasonable action necessary to effect such removal.

Board leadership structure and the board’s role in risk oversight

Committees of the board of directors

The standing committees of our board of directors will consist of an audit committee, a compensation committee and a nominating and corporate governance committee. Our board of directors may also establish from time to time any other committees that it deems necessary or desirable. Under our Amended Stockholders Agreement, subject to applicable laws and stock exchange regulations, our Sponsor will have the right to have a representative appointed to serve on each committee of our board of directors other than the audit committee for so long as our Sponsor has the right to designate at least one director for election to our board.

Our chief executive officer and other executive officers will regularly report to the non-employee directors and the audit, compensation and nominating and corporate governance committees to ensure effective and efficient oversight of our activities and to assist in proper risk management and the ongoing evaluation of management controls.

Audit committee

Upon the consummation of this offering, the audit committee will consist of Mr. Wolford, who will serve as the Chair, and Mses. Levitan and Simmons. Each of the members of our audit committee qualifies as an independent director under NYSE corporate governance standards and the independence requirements of Rule 10A-3 of the Exchange Act. Our board of directors has determined that Ms. Simmons qualifies as an “audit committee financial expert” as such term is defined in Item 407(d)(5) of Regulation S-K.

The purpose of the audit committee is to assist the board of directors in its oversight of: (i) the integrity of our financial statements; (ii) our compliance with legal and regulatory requirements; (iii) the independent auditor’s qualifications and independence; (iv) the performance of our independent auditor; and (v) the design and implementation of our internal audit function, and the performance of the internal audit function after it has been established.

Our board of directors has adopted a written charter for the audit committee, which will be effective upon the consummation of this offering and available on our website.

Compensation committee

Upon the consummation of this offering, the compensation committee will consist of Mr. McGlashan, who will serve as the Chair, and Mr. Wolford. Each of the members of our compensation committee is an independent director under the applicable rules and regulations of the NYSE relating to compensation committee independence.

The purpose of the compensation committee is to assist our board of directors in discharging its responsibilities relating to (i) setting our compensation program and compensation of our executive officers, directors and key personnel, (ii) monitoring our incentive-compensation and equity-based compensation plans, (iii) succession planning for our executive officers, directors and key personnel and (iv) preparing the compensation committee report required to be included in our proxy statement under the rules and regulations of the SEC.

Our board of directors has adopted a written charter for the compensation committee, which will be effective upon the consummation of this offering and available on our website.

 

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Nominating and corporate governance committee

Upon the consummation of this offering, the nominating and corporate governance committee will consist of Ms. Watson, who will serve as the Chair, and Ms. Levitan. Each of the members of our nominating and corporate governance committee is an independent director under the applicable rules and regulations of the NYSE relating to nominating and corporate governance committee independence.

The nominating and corporate governance committee is responsible for making recommendations to our board of directors regarding candidates for directorships and the size and composition of our board of directors. In addition, the nominating and corporate governance committee is responsible for overseeing our corporate governance policies and reporting and making recommendations to our board of directors concerning governance matters.

Our board of directors has adopted a written charter for the nominating and corporate governance committee, which will be effective upon the consummation of this offering and available on our website.

Compensation committee interlocks and insider participation

None of the members of our compensation committee has at any time been one of our executive officers or employees. None of our executive officers currently serves, or has served during the last completed fiscal year, on the compensation committee or board of directors of any other entity that has one or more executive officers serving as a member of our board of directors or compensation committee.

Board diversity

Our nominating and corporate governance committee will be responsible for reviewing with the board of directors, on an annual basis, the appropriate characteristics, skills and experience required for the board of directors as a whole and its individual members. In evaluating the suitability of individual candidates (both new candidates and current members), the nominating and corporate governance committee, in recommending candidates for election, and the board of directors, in approving (and, in the case of vacancies, appointing) such candidates, may take into account many factors, including but not limited to the following:

 

  personal and professional integrity;

 

  ethics and values;

 

  experience in corporate management, such as serving as an officer or former officer of a publicly held company;

 

  experience in the industries in which we compete;

 

  experience as a board member or executive officer of another publicly held company;

 

  diversity of expertise and experience in substantive matters pertaining to our business relative to other board members;

 

  conflicts of interest; and

 

  practical and mature business judgment.

Our board of directors evaluates each individual in the context of the board of directors as a whole, with the objective of assembling a group that can best maximize the success of our business and represent stockholder interests through the exercise of sound judgment using its diversity of experience in these various areas.

Code of ethics and business conduct

We have adopted a Code of Ethics and Business Conduct that applies to all of our directors, officers and employees, including our principal executive officer and principal financial and accounting officer. Our Code of Ethics and Business Conduct will be available on our website upon the completion of this offering. Our Code of Ethics and Business Conduct is a “code of ethics,” as defined in Item 406(b) of Regulation S-K. We will make any legally required disclosures regarding amendments to, or waivers of, provisions of our code of ethics on our website.

 

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Executive compensation

Overview

This compensation discussion provides an overview of our executive compensation program and compensation for our named executive officers (“NEOs”) for the 2015 fiscal year. Our NEOs for the 2015 fiscal year were (i) Mr. Tarang P. Amin, our Chief Executive Officer, (ii) Mr. John P. Bailey, our President and Chief Financial Officer, (iii) Mr. Scott K. Milsten, our Senior Vice President, General Counsel, Corporate Secretary & Chief People Officer, and (iv) Mr. Jay P. Brandimarte, our former Senior Vice President and Chief Financial Officer.

Summary compensation table

The following table sets forth information regarding compensation awarded to, earned by or paid to our NEOs during the year ended December 31, 2015.

 

Name and principal position    Year     Salary
( $ )
    

Option

awards
( $ )(5)

   

Non-equity
incentive plan
compensation

( $ )(7)

   

All other
compensation

( $ )

   

Total

( $ )

 

Tarang P. Amin(1)

     2015        475,000                950,000        32,065 (8)      1,457,065   

Chief Executive Officer, Chairman

             

John P. Bailey(2)

     2015        163,462         490,269        637,500               1,291,231   

President, Chief Financial Officer

             

Scott K. Milsten

     2015        325,000         0        260,000               585,000   

Senior Vice President, General Counsel, Corporate Secretary & Chief People Officer(3)

             

Jay P. Brandimarte(4)

     2015        207,465         31,528 (6)      73,333        343,287 (9)      655,613   

Former Senior Vice President, Chief Financial Officer

             

 

 

 

(1)   Mr. Amin was appointed as Chairman of our board of directors effective as of August 2015.

 

(2)   Mr. Bailey commenced employment and was appointed as President and Chief Financial Officer, effective as of August 2015. His base salary is $ 425,000.

 

(3)   Mr. Milsten was appointed as our Chief People Officer in August 2016.

 

(4)   Mr. Brandimarte served as our Senior Vice President, Chief Financial Officer from September 2014 to August 2015, when his employment with us terminated.

 

(5)   Amounts reported in the “Option Awards” column represent the grant date fair values of stock options granted under the 2014 Equity Plan, calculated in accordance with FASB Topic 718, disregarding the effects of estimated forfeitures. For a discussion of the assumptions used to calculate the value of our stock options, see note 12 to our audited financial statements included elsewhere in this prospectus. During fiscal year 2015, (i) Mr. Bailey was granted an option to purchase 482,664 shares of our common stock, of which 223,867 shares are subject to time-based vesting and the remainder are subject to performance-based vesting and (ii) Mr. Milsten was granted an option to purchase 76,066 shares of our common stock, with all such shares subject to performance-based vesting. The grant date fair value with respect to the performance-based portion of such awards is calculated based on the probable outcome of the applicable performance conditions as more fully described under the heading “2014 Equity Plan” below, which was assessed as zero. The aggregate maximum fair value of the performance-based portion of such stock options assuming the highest level of achievement of the performance conditions with respect to Mr. Bailey’s stock option is $ 709,497 and with respect to Mr. Milsten’s stock option is $ 38,071.

 

(6)   In connection with his execution of a separation agreement and general release of claims, an option held by Mr. Brandimarte that was subject to time-based vesting became immediately vested in respect of 15,600 shares of our common stock as of his separation date and this option remained exercisable until August 21, 2016, the first anniversary of his separation date. The amount in this column includes the incremental fair value of Mr. Brandimarte’s option award after giving effect to the modification. For a more detailed description of Mr. Brandimarte’s terms of separation, please see the heading entitled “Separation agreement” below.

 

(7)   Represents the actual bonus earned for fiscal year 2015 and paid in February 2016. For Mr. Brandimarte, the amount reflects his pro-rated annual bonus for fiscal year 2015 based on actual performance, as reduced by $ 100,000, in exchange for an extension of the exercisability of his vested option to purchase 15,600 shares of our common stock until August 21, 2016.

 

(8)   This amount reflects reimbursement to Mr. Amin paid in 2015 for expenses incurred by him in an amount of $ 19,860 and $ 12,205, for fiscal years 2014 and 2015, respectively, relating to financial planning and tax preparation assistance per the terms of his employment agreement.

 

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(9)   In addition to the option acceleration noted above, pursuant to his separation agreement, Mr. Brandimarte became entitled to severance payments as follows: (i) continued payment of his base salary for 12 months following his date of separation ( $ 325,000); and (ii) continued payments for healthcare coverage under COBRA for Mr. Brandimarte and his covered dependents for up to 18 months following his date of separation (resulting in an actual aggregate payment of $ 18,287).

Employment agreements

We and our operating subsidiary, e.l.f. Cosmetics, Inc., have entered into employment agreements with each of our current NEOs. These agreements set forth the terms and conditions of employment of each NEO, including base salary, initial stock option grants and standard employee benefit plan participation. Our board of directors or the compensation committee reviews each NEO’s compensation from time to time to ensure that it adequately reflects the NEO’s qualifications, experience, role and responsibilities.

Initial term

Each employment agreement provides that the respective NEO will continue to serve in his stated capacity until the fifth anniversary of his date of hire (the “Initial Term”). The Initial Term will be automatically extended for successive one-year periods (the “Extension Period”), unless either we or the NEO provide written notice of intent to terminate at least 60 days prior to the end of the Initial Term or any Extension Period.

Severance

Each NEO’s employment agreement provides that if his employment is terminated by us for reasons other than death, disability or “cause,” or at the election of the NEO “for good reason,” prior to the end of the Initial Term, then he will be entitled to receive severance payments of (i) an amount equal to his base salary, payable monthly for a period of 12 months following the date of termination (except that Mr. Amin will be entitled to two times his base salary); (ii) continued COBRA coverage for such NEO and his eligible dependents for a period of up to 18 months; (iii) the amount of any unpaid annual bonus earned for a previously completed fiscal year (the “Accrued Bonus”); (iv) a pro-rated bonus based on actual performance for the fiscal year in which termination occurs, provided that the NEO has been employed with us for at least six months of such fiscal year; and (v) any accrued but unpaid base salary and vacation time, such employee benefits, if any, to which the NEO or his dependents may be entitled under our employee benefit plans or programs, and reimbursement for reasonable business expenses, each as would have been payable through the date of termination (the “Accrued Obligations”). All such payments (other than the Accrued Bonus and the Accrued Obligations) are contingent upon each NEO’s compliance with certain non-compete, confidentiality and other provisions as set forth in his respective employment agreement, and the execution of a general release of claims against the Company.

Pursuant to each employment agreement, “cause” is defined as the NEO’s (i) material nonperformance of his obligations to the Company, subject to certain notice and opportunity to cure provisions; (ii) commission of an act of fraud, embezzlement, misappropriation, willful misconduct against or breach of his fiduciary duty to the Company; (iii) material breach of certain non-compete, non-solicitation, confidentiality and other restrictive covenants; (iv) conviction, plea of no contest or nolo contendre , deferred adjudication or unadjudicated probation for any felony or any crime involving moral turpitude; (v) failure to carry out, or comply with, in any material respect, any lawful directive of the board of directors, subject to certain notice and opportunity to cure provisions; or (vi) unlawful use or possession of illegal drugs.

Pursuant to each employment agreement “good reason” is defined as (i) a material default in the performance of the Company’s obligations under the applicable employment agreement; (ii) a significant diminution of the NEO’s duties, responsibilities or authority, or a material diminution of his base compensation, unless such diminution is mutually agreed between the NEO and the Company; or (iii) the Company’s relocation of the NEO’s principal office without his consent to a location in excess of 50 miles from San Francisco, California, in each case subject to certain notice and opportunity to cure provisions.

Separation agreement

Mr. Brandimarte terminated his service as our Senior Vice President, Chief Financial Officer effective August 21, 2015. In connection with his termination, we entered into a separation agreement and general release of claims with Mr. Brandimarte whereby Mr. Brandimarte became entitled to severance payments as follows: (i) continued payment of his base salary for 12 months following his date of separation; (ii) continued payments for healthcare coverage under COBRA for Mr. Brandimarte and his covered dependents for up to 18 months following his date of separation; (iii) the Accrued Bonus; (iv) a pro-rated annual bonus for fiscal year 2015 based on actual performance, as measured following the end of such

 

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period and subject to such reduction as noted below; and (v) the Accrued Obligations. In addition, 15,600 shares underlying Mr. Brandimarte’s outstanding option became immediately vested as of his separation date. Pursuant to the terms of his separation agreement, we reduced the amount of Mr. Brandimarte’s pro-rata bonus as described above by $ 100,000 and extended the exercisability of his vested option until August 21, 2016, the first anniversary of his separation date.

Base salaries

We provide a base salary to our NEOs and other employees to compensate them for services rendered during the year. Base salaries are intended to provide a level of compensation sufficient to attract and retain an effective management team when considered in combination with the other components of our executive compensation program. The relative levels of base salary for our NEOs are designed to reflect each such NEO’s scope of responsibility and accountability to us. Please see the “Salary” column in the summary compensation table for the base salary of each NEO in 2015.

Bonuses

Pursuant to their respective employment agreements, Messrs. Amin and Bailey were entitled to an annual cash bonus targeted at 100% and 75% of their respective base salaries, and Messrs. Milsten and Brandimarte were entitled to an annual cash bonus targeted at 40% of their respective base salaries, in each case subject to the attainment of certain financial goals as determined by the board of directors. For fiscal year 2015, our board of directors established an Adjusted EBITDA goal for the annual cash bonus program and provided for bonuses to be payable at 80% to 200% of each NEO’s annual cash bonus target for performance based on predetermined Adjusted EBITDA levels of achievement. No bonus would be payable if performance was less than 94% of the Adjusted EBITDA goal, and the bonus amount was capped at 200% of each NEO’s annual cash bonus target.

In early 2016, our board of directors determined that, based on our Adjusted EBITDA performance for 2015, each NEO was entitled to receive 200% of his annual cash bonus target. Mr. Brandimarte’s bonus for 2015 was pro-rated based on his partial year of service and reduced by $ 100,000 in exchange for the extension of the exercisability of his vested option to purchase 15,600 shares of our common stock until August 21, 2016. The actual annual cash bonuses paid to each NEO with respect to 2015 are set forth above in the summary compensation table in the column entitled “Non-Equity Incentive Plan Compensation.”

Equity compensation

Stock options awarded to our senior executives have typically been subject to both (i) time-based and (ii) performance-based vesting. The time-based portion of such options will become vested and exercisable immediately prior to this offering, subject to each executive’s continued employment by us through such date. The performance-based portion of such options will vest if our equityholders, including our Sponsor, who are party to the Stockholders Agreement (as defined in “Certain relationships and related party transactions—Stockholders Agreement”) and their permitted transferees, receive cash distributions in respect of their investment in us, including proceeds received in connection with this offering, that exceed certain investment return multiples.

Generally, in the event of a senior executive’s termination by reason of death or disability, by the Company without “cause” or by the executive for “good reason” (as such terms are defined in his or her employment agreement), (i) the time-based portion of any option which would have vested within 12 months (or 24 months if such termination occurs without cause or for good reason within 12 months of the executive’s date of hire or the grant date of the option as set forth in the applicable award agreement) following the termination will become immediately vested and exercisable and (ii) the executive will vest in the performance-based portion of such option in the event the performance goal is achieved within six months following the date of termination.

For more information related to our equity compensation incentives, see the section entitled “Equity compensation plans and stock purchase plans” below.

Other elements of compensation

Retirement plans

We also maintain a 401(k) retirement savings plan through e.l.f. Cosmetics, Inc. for the benefit of our employees, including our NEOs, who satisfy certain eligibility requirements. Under the 401(k) plan, eligible employees may elect to defer a portion of

 

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their compensation, within the limits prescribed by the Internal Revenue Code of 1986, as amended (the “Code”), on a pre-tax or after-tax (Roth) basis through contributions to the 401(k) plan. We also generally make matching contributions based on the percentage of each employee’s elective deferrals, subject to a pre-determined maximum. We believe that providing a vehicle for tax-deferred retirement savings through our 401(k) plan adds to the overall desirability of our executive compensation package and further incentivizes our employees in accordance with our compensation policies. We did not make any matching contributions to any of our NEOs during the year ended December 31, 2015.

Employee benefits and perquisites

All of our full-time employees, including our NEOs, are eligible to participate in our health and welfare plans, including medical, dental and vision benefits, medical flexible spending accounts, short-term and long-term disability insurance and life insurance.

In addition, pursuant to his employment agreement, we offer Mr. Amin reimbursement of up to $ 20,000 per year for expenses incurred by him in connection with financial planning and tax preparation assistance. Please see the summary compensation table for information relating to amounts reimbursed to Mr. Amin during 2015. Except as noted above with respect to Mr. Amin, we do not provide our NEOs with perquisites or other personal benefits other than those which apply uniformly to all of our employees.

Outstanding equity awards at 2015 fiscal year-end

The following table sets forth information regarding outstanding option awards held by our NEOs as of December 31, 2015. All awards reflected were granted under the 2014 Equity Plan.

 

              Option awards(1)  
Name    Grant date      Number of
securities
underlying
unexercised
options (#)
exercisable
     Number of
securities
underlying
unexercised
options (#)
unexercisable
     Equity
incentive
plan
awards:
number of
securities
underlying
unexercised
unearned
options (#)
     Option
exercise
price ( $ )(2)
     Option
expiration
date
 

Tarang P. Amin

     1/31/2014         88,801         355,203         854,966       $ 5.07         1/31/2024   

John P. Bailey

     8/12/2015                 223,867         258,797       $ 5.07         8/12/2025   

Scott K. Milsten

     1/31/2014         15,600         62,400         56,550       $ 5.07         1/31/2024   
     8/12/2015                         76,066       $ 5.07         8/12/2025   

Jay Brandimarte

     9/4/2014         15,600                       $ 5.07         8/21/2016 (3) 

 

 

 

(1)   Subject to each executive’s continued employment, (i) the time-based portion of each such option granted pursuant to the 2014 Equity Plan will become fully vested and exercisable immediately prior to the consummation of this offering; and (ii) the performance-based portion of such options will become vested and exercisable if our equityholders who are party to the Stockholders Agreement, and their permitted transferees, receive cash distributions in respect of their investment in us, including proceeds received in connection with this offering, that exceed certain investment return multiples.

 

(2)   Although occurring after the end of the most recent fiscal year, option exercise prices have been adjusted to reflect the reduction approved by the Compensation Committee of our board of directors in connection with the special dividend declared on June 7, 2016 as described under “Dividend policy.” In connection with the payment of the special dividend, the exercise price of each outstanding option was reduced by $4.93, the amount of the per share dividend.

 

(3)   Pursuant to his separation agreement as described above, the option held by Mr. Brandimarte became vested and exercisable in respect of 15,600 shares of our common stock as of his separation date. The portion of the option that was vested was exercisable until August 21, 2016.

Equity compensation plans and stock purchase plans

The following description of each of our equity compensation plans is qualified by reference to the full text of those plans, which will be filed as exhibits to the registration statement of which this prospectus forms a part. Our equity compensation plans are designed to continue to give the Company flexibility to grant a wide variety of equity awards to reflect what the compensation committee believes at the time of such award will best motivate and reward our employees, directors, consultants and other service providers.

 

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2014 Equity Incentive Plan

We currently maintain the 2014 Equity Plan. The purposes of the 2014 Equity Plan are to enhance the profitability and value of the Company by offering incentives to attract, retain and reward our employees, non-employee directors and consultants and to align the interests between such individuals and our stockholders. The material terms of the 2014 Equity Plan are summarized below:

Share reserve .      Subject to adjustment as described below, the 2014 Equity Plan has an aggregate of 3,427,748 shares of our common stock reserved for issuance under the plan. As of December 31, 2015, awards with respect to 3,205,212 shares of our common stock were outstanding and 220,036 shares of our common stock remained available for issuance under the 2014 Equity Plan. The following share counting provisions are in effect for the share reserve under the 2014 Equity Plan:

 

  to the extent that an award terminates, expires, is forfeited or canceled for any reason without having been exercised in full or is settled in cash, any shares subject to the award at such time will be available for future grants under the 2014 Equity Plan;

 

  to the extent that shares subject to an award are withheld or reacquired by the Company to satisfy the exercise price or tax withholding obligations under the 2014 Equity Plan, such shares will be available for future grants under the 2014 Equity Plan; and

 

  to the extent any stock appreciation right is granted in tandem with an option, such grant will only apply once against the maximum number of shares which may be granted under the 2014 Equity Plan.

Administration .      Our board of directors or an authorized committee thereof administers the 2014 Equity Plan. Subject to the terms and conditions of the 2014 Equity Plan, the administrator has the authority to, among other things, select the persons to whom awards are to be made, to determine the kinds of awards granted, the number of shares to be subject to awards and the terms and conditions of awards, and to adopt, amend or rescind rules relating to administration of the 2014 Equity Plan.

Eligibility .      Awards under the 2014 Equity Plan may be granted to our officers, employees or consultants or the officers, employees or consultants of certain of our subsidiaries. Such awards may also be granted to our non-employee directors. However, only employees of our Company or certain of our subsidiaries may be granted incentive stock options (“ISOs”).

Awards .     The 2014 Equity Plan provides that the administrator may grant or issue stock options, stock appreciation rights, restricted stock awards, other stock- or cash-based awards or any combination thereof. Each award will be set forth in a separate award agreement with the participant and will indicate the type of award and applicable terms and conditions.

 

  Nonstatutory stock options (“NSOs”) provide for the right to purchase shares of our common stock at a specified price which may not be less than the fair market value of a share of our common stock on the date of grant, and usually become exercisable (at the discretion of the administrator) in one or more installments after the grant date, subject to the participant’s continued employment or service with us. NSOs may be granted for any term specified by the administrator that does not exceed 10 years as measured from the date of grant. The administrator may permit a participant to exercise all or any part of his or her stock option prior to vesting, provided that the portion of unvested shares subject thereto will be subject to the same terms and conditions as restricted stock granted under the 2014 Equity Plan and may also be subject to a right of repurchase in favor of the Company in addition to any other restrictions as the administrator may deem appropriate.

 

  ISOs provide for the right to purchase shares of our common stock and are designed in a manner intended to comply with the provisions of Section 422 of the Code. Among other restrictions, ISOs must have an exercise price of not less than the fair market value of a share of our common stock on the date of grant, may only be granted to employees and must not be exercisable after a period of 10 years measured from the date of grant. In the case of an ISO granted to an individual who owns (or is deemed to own) at least 10% of the total combined voting power of all classes of our capital stock, the 2014 Equity Plan provides that the exercise price must be at least 110% of the fair market value of a share of common stock on the date of grant and the ISO may not be exercisable after a period of five years as measured from the date of grant.

 

 

Stock appreciation rights represent the right to receive payment (in cash and/or in common stock in the discretion of the administrator) of an amount equal to the excess of the fair market value of a share of our common stock on the date of exercise over the fair market value of our common stock on the date of grant. Stock appreciation rights may be granted

 

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separately or in conjunction with stock options. They generally vest and are exercisable at such time and on such terms and conditions as determined by the administrator at the time of grant, and may have a term not exceeding 10 years as measured from the date of grant. However, stock appreciation rights granted in conjunction with stock options generally may be exercisable on the same terms and conditions and for the same period as the related stock option. In addition, the administrator may also grant stock appreciation rights referred to as “limited stock appreciation rights,” which are exercisable only upon the occurrence of a sale of the Company, or such other event as the administrator may determine at the time of grant or thereafter.

 

  Restricted stock represents the grant of shares of our common stock at a price, if any, determined by the administrator, subject to certain restrictions. Restricted stock typically will be forfeited by the holder or may be repurchased by us at the original purchase price if the conditions or restrictions on vesting, which may include the attainment of specified performance goals, are not met. In general, restricted stock may not be sold or otherwise transferred or hypothecated until certain restrictions are removed or expire. To the extent determined by the administrator, holders of restricted stock, unlike recipients of options, may have voting rights and the right to receive dividends, if any, prior to the time when the restrictions lapse. The administrator, however, may determine that payment of dividends, if any, be deferred until the restrictions are removed or expire.

 

  Other stock-based awards may be in the form of shares of common stock, stock equivalents, restricted stock units or such other awards as the administrator may determine that are payable in, valued in whole or in part by reference to, or otherwise based on shares of our common stock. Other stock-based awards may be subject to such vesting conditions, including the achievement of performance criteria, as the administrator may determine or may be awarded without any restrictions. To the extent applicable, the administrator may determine the exercise price, if any, of other stock-based awards and whether to provide for the payment (or deferral) of any dividends subject to shares underlying such awards.

 

  Other cash-based awards may also be granted to eligible individuals in such amounts, on such terms and conditions and for such consideration, including no consideration, as the administrator may determine. Cash-based awards may be granted subject to the satisfaction of vesting conditions, which may be accelerated by the administrator in its sole discretion at any time, or may be awarded purely as a bonus and not subject to any restrictions or conditions.

Sale or reorganization .      In the event of a sale or reorganization of the Company the administrator may, in its sole discretion, (i) provide for the accelerated vesting of, or lapse of restrictions applicable to, outstanding awards at any time; (ii) provide for the continuation, assumption or substitution of outstanding awards, whether vested or unvested; (iii) terminate outstanding and unexercised stock-based awards pursuant to applicable award agreements; or (iv) provide for the purchase of outstanding awards by us or any of our subsidiaries in an amount of cash equal to the excess of the fair market value of shares of common stock covered by such awards over the aggregate exercise price or purchase price (if any) required to be paid under such awards for the acquisition of the underlying common stock. In addition, the administrator will appropriately adjust the aggregate number or kind of securities that may be issued under the 2014 Equity Plan, the number and kind of securities or other property which may be issued pursuant to awards under the 2014 Equity Plan or the purchase price thereof in order to prevent dilution or enlargement of rights granted to, or available for participants, under the 2014 Equity Plan.

Under the 2014 Equity Plan, a “sale of the Company” is generally defined as a bona fide sale of (i) the majority of the Company’s outstanding shares or (ii) all or substantially all of the Company’s assets, determined on a consolidated basis, in either case to any person (other than an affiliate of the Company). A “reorganization” is generally defined as any merger, consolidation, statutory exchange, spin-off, reorganization, sale or transfer of all or substantially all of the Company’s assets or business, or other corporate transaction or event in which the Company’s outstanding shares of common stock are converted or exchanged, either immediately or upon liquidation of the Company, into the right to receive securities or the property of the Company or other entity.

Adjustments of awards.     In the event of any stock split, including a reverse stock split, or similar transaction, the administrator will adjust the respective exercise price and number of shares covered by outstanding awards to prevent dilution or enlargement of the rights granted to, or available for, participants under the 2014 Equity Plan. Further, in the event of any other change in the capital structure of the Company, including by reason of any extraordinary stock or cash dividend, any conversion, adjustment or issuance of any class of securities convertible or exercisable into any class of equity securities of the Company, then the administrator may adjust the 2014 Equity Plan and any award granted thereunder in order to prevent dilution or enlargement of the rights grant to, or available for participants.

Amendment and termination .      Our board of directors may amend, modify, suspend or terminate the 2014 Equity Plan at any time. However, except in connection with certain changes in the Company’s capital structure or to comply with

 

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applicable law, stockholder approval will be required for an amendment that (i) increases the maximum number of shares which may be issued under the 2014 Equity Plan or (ii) requires stockholder approval in order for the 2014 Equity Plan to continue to comply with certain provisions of Section 422 of the Code, related to ISOs. The administrator (to the extent such power has been delegated by our board of directors) may amend the terms of any award. However, generally no amendment may impair the rights of a holder of an outstanding award without the holder’s consent.

Immediately prior to the completion of this offering and in connection with the effectiveness of our 2016 Plan, the 2014 Equity Plan will terminate and no further awards will be granted thereunder. However, any awards under the 2014 Equity Plan that are outstanding as of the effective date of the 2016 Plan will continue to be subject to the terms and conditions of the 2014 Equity Plan.

2014 Phantom Equity Plan

We also currently maintain the 2014 Phantom Equity Plan (the “Phantom Plan”) to further incentivize our current and prospective employees, non-employee directors and consultants. We have only granted phantom shares to our employees in leadership positions who reside outside of the United States. Each phantom share entitles the holder to receive a one-time cash payment in an amount equal to the fair market value of the amounts distributable to a holder of our common stock in connection with a sale of the Company, less the grant date fair value. “Sale of the Company” is generally defined in the same manner as under the 2014 Equity Plan. Holders of phantom shares are not entitled to any dividend or distribution rights, voting rights, liquidation rights, preemptive or other rights generally available to stockholders of the Company.

The total number of phantom shares available for issuance under the Phantom Plan is 80,000. If any phantom shares are forfeited or cancelled for any reason, then they will again be available for issuance under the Phantom Plan. If at any time a holder of phantom shares ceases providing services to the Company for any reason prior to vesting, then all phantom shares held by such individual will be immediately forfeited and deemed canceled without any consideration.

In the event of a stock split, declaration of a stock dividend or similar distribution, recapitalization, spin-off or other similar occurrence, the board of directors or compensation committee, as administrator of the Phantom Plan, may equitably adjust the number of phantom shares available for future awards and the number of phantom shares then outstanding under the Phantom Plan in such manner as it deems appropriate.

Our board of directors may further amend or terminate the Phantom Plan and any outstanding award agreement pursuant to which phantom shares were issued at any time and for any reason, provided that no such amendment of the Phantom Plan or applicable award agreements that would adversely affect the holders of outstanding phantom shares may be made without prior written consent of the holders of a majority of the affected shares.

2016 Equity Incentive Award Plan

In connection with this offering, we intend to adopt the 2016 Plan, which will become effective immediately prior to the consummation of this offering. The principal purpose of the 2016 Plan is to attract, retain and motivate selected employees, consultants and directors through the granting of stock-based compensation awards and cash-based performance bonus awards. The material terms of the 2016 Plan, as it is currently contemplated, are summarized below.

Share reserve .    Under the 2016 Plan, an aggregate of                 shares of our common stock will be initially reserved for issuance pursuant to a variety of stock-based compensation awards, including stock options, stock appreciation rights (“SARs”), restricted stock awards, restricted stock unit awards, deferred stock awards, dividend equivalent awards, stock payment awards and performance awards. The number of shares initially reserved for issuance or transfer pursuant to awards under the 2016 Plan will be increased by (i) the number of shares represented by awards outstanding under our 2014 Equity Plan that are forfeited or lapse unexercised following the effective date up to a maximum of                 shares and (ii) an annual increase on the first day of each calendar year beginning in 2017 and ending in 2026, equal to the lesser of (A)             (     %) of the shares of common stock outstanding (on an as converted basis) on the last day of the immediately preceding calendar year and (B) such smaller number of shares of stock as determined by our board of directors; provided, however, that no more than                 shares of stock may be issued upon the exercise of ISOs.

The following counting provisions will be in effect for the share reserve under the 2016 Plan:

 

  to the extent that an award terminates, expires or lapses for any reason or an award is settled in cash without the delivery of shares, any shares subject to the award at such time will be available for future grants under the 2016 Plan;

 

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  to the extent shares are tendered or withheld to satisfy the grant or exercise price or tax withholding obligation with respect to any award under the 2016 Plan, such tendered or withheld shares will be available for future grants under the 2016 Plan;

 

  to the extent that shares of our common stock underlying unvested awards are repurchased by us, such shares will be available for future grants under the 2016 Plan;

 

  the payment of dividend equivalents in cash in conjunction with any outstanding awards will not be counted against the shares available for issuance under the 2016 Plan;

 

  to the extent permitted by applicable law or any exchange rule, shares issued in assumption of, or in substitution for, any outstanding awards of any entity acquired in any form of combination by us or any of our subsidiaries will not be counted against the shares available for issuance under the 2016 Plan; and

 

  to the extent that an entity acquired in any form of combination by us or any of our subsidiaries has shares available for grant under pre-existing plan, the shares available for grant pursuant to the terms of such pre-existing plan (as may be appropriately adjusted) may be used for awards under the 2016 Plan and will not be counted against the shares available for issuance under the 2016 Plan.

Administration .    The compensation committee of our board of directors is expected to administer the 2016 Plan. Our board of directors or the compensation committee thereof may delegate their duties and responsibilities to committees of directors and/or officers, subject to certain limitations that may be imposed under Section 162(m) of the Code, Section 16 of the Exchange Act and/or stock exchange rules. The administrator must consist of at least two members of our board of directors, each of whom is intended to qualify as an “outside director,” within the meaning of Section 162(m) of the Code, a “non-employee director” for purposes of Rule 16b-3 under the Exchange Act and an “independent director” within the meaning of the rules of the applicable stock exchange, or other principal securities market on which shares of our common stock are traded. The 2016 Plan provides that our board of directors or the compensation committee thereof may delegate its authority to grant awards to employees other than executive officers and certain senior executives of the Company to a committee consisting of one or more members of our board of directors or one or more of our officers. Awards made to our non-employee directors must be approved by our full board of directors. Our board of directors may at any time remove the compensation committee as the administrator and revest in itself the authority to administer the 2016 Plan.

Subject to the terms and conditions of the 2016 Plan, the administrator has the authority to select the persons to whom awards are to be made, to determine the number of shares to be subject to awards, to prescribe the terms and conditions of awards and to make all other determinations and to take all other actions necessary or advisable for the administration of the 2016 Plan. The administrator is also authorized to adopt, amend or rescind rules relating to administration of the 2016 Plan.

Eligibility .    Options, SARs, restricted stock and all other stock-based and cash-based awards under the 2016 Plan may be granted to individuals who are then our officers, employees or consultants or are the officers, employees or consultants of certain of our subsidiaries. Such awards also may be granted to our non-employee directors. Only employees of our Company or certain of our subsidiaries may be granted ISOs.

Awards .    The 2016 Plan provides that the administrator may grant or issue stock options, SARs, restricted stock, restricted stock units, deferred stock, dividend equivalents, performance awards, stock payments and other stock-based and cash-based awards, or any combination thereof. Each award will be set forth in a separate agreement with the person receiving the award and will indicate the type of award, and the terms and conditions thereof.

 

  NSOs will provide for the right to purchase shares of our common stock at a specified price which may not be less than fair market value on the date of grant, and usually will become exercisable (at the discretion of the administrator) in one or more installments after the grant date, subject to the participant’s continued employment or service with us and/or subject to the satisfaction of corporate performance targets and individual performance targets established by the administrator. NSOs may be granted for any term specified by the administrator that does not exceed 10 years.

 

  ISOs will be designed in a manner intended to comply with the provisions of Section 422 of the Code and will be subject to specified restrictions contained in the Code. Among such restrictions, ISOs must have an exercise price of not less than the fair market value of a share of common stock on the date of grant, may only be granted to employees and must not be exercisable after a period of 10 years measured from the date of grant. In the case of an ISO granted to an individual who owns (or is deemed to own) at least 10% of the total combined voting power of all classes of our capital stock, the 2016 Plan provides that the exercise price must be at least 110% of the fair market value of a share of common stock on the date of grant and the ISO must not be exercisable after a period of five years measured from the date of grant.

 

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  Restricted stock may be granted to any eligible individual and made subject to such restrictions as may be determined by the administrator. Restricted stock typically will be forfeited by the holder or may be repurchased by us at the original purchase price if the conditions or restrictions on vesting are not met. In general, restricted stock may not be sold or otherwise transferred or hypothecated until certain restrictions are removed or expire. Holders of restricted stock, unlike recipients of options, will have voting rights and will have the right to receive dividends, if any, prior to the time when the restrictions lapse; however, extraordinary dividends will generally be placed in escrow and will not be released until the restrictions are removed or expire.

 

  Restricted stock units may be awarded to any eligible individual, typically without payment of consideration, but subject to vesting conditions based on continued employment or service or on performance criteria established by the administrator. Like restricted stock, restricted stock units may not be sold, or otherwise transferred or hypothecated, until vesting conditions are removed or expire. Unlike restricted stock, stock underlying restricted stock units will not be issued until the restricted stock units have vested, and recipients of restricted stock units generally will have no voting or dividend rights prior to the time when vesting conditions are satisfied.

 

  Deferred stock awards represent the right to receive shares of our common stock on a future date. Deferred stock may not be sold or otherwise transferred or hypothecated until issued. Deferred stock will not be issued until the deferred stock award has vested, and recipients of deferred stock generally will have no voting or dividend rights prior to the time when the vesting conditions are satisfied and the shares are issued. Deferred stock awards generally will be forfeited, and the underlying shares of deferred stock will not be issued, if the applicable vesting conditions and other restrictions are not met.

 

  Deferred stock units may be awarded to any eligible individual and may be subject to vesting conditions based on continued employment or service or on performance criteria established by the administrator. Like deferred stock, deferred stock units may not be sold, or otherwise transferred or hypothecated, until vesting conditions are removed or expire. Stock underlying deferred stock units will not be issued until the deferred stock units have vested or upon a specified settlement date thereafter. Recipients of deferred stock units generally will have no voting or dividend rights prior to the time when the vesting conditions are satisfied and the shares are issued.

 

  SARs may be granted in connection with stock options or other awards, or separately. SARs granted in connection with stock options or other awards typically will provide for payments to the holder based upon increases in the price of our common stock over a set exercise price. The exercise price of any SAR granted under the 2016 Plan must be at least 100% of the fair market value of a share of our common stock on the date of grant. Except as required by Section 162(m) of the Code with respect to a SAR intended to qualify as performance-based compensation as described in Section 162(m) of the Code, there are no restrictions specified in the 2016 Plan on the exercise of SARs or the amount of gain realizable therefrom, although restrictions may be imposed by the administrator in the SAR agreements. SARs under the 2016 Plan will be settled in cash or shares of our common stock, or in a combination of both, at the election of the administrator.

 

  Dividend equivalents represent the value of the dividends per share, if any, paid by us, calculated with reference to the number of shares covered by the award. Dividend equivalents may be settled in cash or shares and at such times as determined by the administrator.

 

  Performance awards may be granted by the administrator on an individual or group basis. Generally, these awards will be based upon specific performance targets and may be paid in cash or in common stock or in a combination of both. Performance awards may include “phantom” stock awards that provide for payments based upon the value of our common stock. Performance awards may also include bonuses that may be granted by the administrator on an individual or group basis and which may be payable in cash or in common stock or in a combination of both.

 

  Stock payments may be authorized by the administrator in the form of common stock or an option or other right to purchase common stock as part of a deferred compensation or other arrangement in lieu of all or any part of compensation, including bonuses, that would otherwise be payable in cash to the employee, consultant or non-employee director.

Adjustments of awards .    In the event of any stock dividend, stock split, combination or exchange of shares, merger, consolidation, spin-off, recapitalization, distribution of our assets to stockholders (other than normal cash dividends) or any other corporate event affecting the number of outstanding shares of our common stock or the share price of our common stock other than an equity restructuring (as defined below), the administrator may make appropriate, proportionate adjustments to:

 

  the aggregate number and kind of shares subject to the 2016 Plan;

 

  the number and kind of shares subject to outstanding awards;

 

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  the terms and conditions of outstanding awards (including, without limitation, any applicable performance targets or criteria with respect to such awards); and

 

  the grant or exercise price per share of any outstanding awards under the 2016 Plan.

In the event of any transaction or event described above, or any unusual or nonrecurring transaction or events, and in order to prevent dilution or enlargement of the potential benefits intended to be made available under the 2016 Plan, the administrator in its sole discretion may:

 

  provide for the termination or replacement of an award in exchange for cash or other property;

 

  provide that any outstanding award cannot vest, be exercised or become payable after such event; and/or

 

  provide that awards may be exercisable, payable or fully vested as to shares of common stock covered thereby.

In the event of an equity restructuring, the administrator will make appropriate, proportionate adjustments to the number and type of securities subject to each outstanding award and the exercise price or grant price thereof, if applicable. In addition, the administrator will make equitable adjustments, as the administrator in its discretion may deem appropriate to reflect such equity restructuring, with respect to the aggregate number and type of shares subject to the 2016 Plan. The adjustments upon an equity restructuring are nondiscretionary and will be final and binding on the affected holders and the Company.

For purposes of the 2016 Plan, “equity restructuring” means a nonreciprocal transaction between us and our stockholders, such as a stock dividend, stock split, spin-off, rights offering or recapitalization through a large, nonrecurring cash dividend, that affects the number or kind of shares (or other securities) or the share price of our common stock (or other securities) and causes a change in the per share value of the common stock underlying outstanding stock-based awards granted under the 2016 Plan.

Foreign participants, claw-back provisions and transferability .     The administrator may modify award terms, establish subplans and/or adjust other terms and conditions of awards, subject to the share limits described above, in order to facilitate grants of awards subject to the laws and/or stock exchange rules of countries outside of the United States. All awards will be subject to the provisions of any claw-back policy implemented by the Company to the extent set forth in such claw-back policy and/or in the applicable award agreement. With limited exceptions for estate planning, domestic relations orders, certain beneficiary designations and the laws of descent and distribution, awards under the 2016 Plan are generally non-transferable prior to vesting unless otherwise determined by the administrator, and are exercisable only by the participant during his or her lifetime.

Amendment and termination .    Our board of directors or the compensation committee thereof (with board approval) may terminate, amend or modify the 2016 Plan at any time and from time to time. However, we must generally obtain stockholder approval:

 

  to increase the number of shares available under the 2016 Plan (other than in connection with the automatic annual increases and certain corporate events, in each case, as described above);

 

  to cancel any outstanding option or SAR in exchange for cash or another award when the exercise or base price of the option or SAR, respectively, exceeds the fair market value of the underlying shares; or

 

  to the extent required by applicable law, rule or regulation (including any applicable stock exchange rule).

Termination.     Our board of directors may terminate the 2016 Plan at any time. No ISOs may be granted pursuant to the 2016 Plan after the tenth anniversary of the effective date of the 2016 Plan, and no additional automatic annual share increases to the 2016 Plan’s aggregate share limit will occur from and after such anniversary. Any award that is outstanding on the termination date of the 2016 Plan will remain in force according to the terms of the 2016 Plan and the applicable award agreement.

2016 Employee Stock Purchase Plan

In connection with this offering, we will also adopt the ESPP, which will become effective immediately prior to the effectiveness of the registration statement of which this prospectus forms a part. The ESPP is designed to allow our eligible employees to purchase shares of our common stock with accumulated payroll deductions. The ESPP is intended to qualify under Section 423 of the Code. The material terms of the ESPP, as it is currently contemplated, are summarized below.

Plan administration.     Our compensation committee is expected to administer the ESPP, subject to the terms and conditions of the ESPP. Our board of directors or the compensation committee may delegate administrative tasks under the ESPP to

 

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the services of an agent and/or employees. The administrator will have the discretionary authority to administer and interpret the ESPP. Interpretations and constructions of the administrator of any provision of the ESPP or of any rights thereunder will be conclusive and binding on all persons. We will bear all expenses and liabilities incurred by the ESPP administrator.

Shares available under ESPP .     The maximum number of shares of our common stock which will be authorized for sale under the ESPP is equal to the sum of (a)                 shares of common stock and (b) an annual increase on the first day of each calendar year beginning in 2017 and ending in 2026, equal to the lesser of (i) one percent (1%) of the shares of our common stock outstanding (on an as converted basis) on the last day of the immediately preceding calendar year and (ii) such number of shares of common stock as determined by our board of directors; provided, however, that no more than                 shares of our common stock may be issued under the ESPP, subject to certain adjustments. The shares made available for sale under the ESPP may be authorized but unissued shares, treasury stock or common stock purchased on the open market.

Eligible employees.     Employees eligible to participate in the ESPP for a given offering period generally include employees who are employed by us or one of our designated subsidiaries on the first day of the offering period, or the enrollment date. Any employee who owns (or is deemed to own through attribution) 5% or more of the combined voting power or value of all our classes of stock or the stock of one of our subsidiaries will not be allowed to participate in the ESPP. Further, the administrator may exclude any of our employees and any employees of our subsidiaries who customarily work less than five months in a calendar year, are customarily scheduled to work less than 20 hours per week, fail to meet other service requirements designated by the administrator or qualify as “highly compensated employees” within the meaning of Section 423 of the Code.

Participation.     Employees will enroll under the ESPP by completing a payroll deduction form permitting the deduction from their compensation of at least     % of their compensation but not more than a maximum percentage of their compensation per offering period as specified by the administrator. A participant may not purchase more than                 shares in each offering period. The administrator has the authority to change these limitations for any subsequent offering period.

Offering.     Under the ESPP, participants are offered the option to purchase shares of our common stock at a discount during a series of successive offering periods. The offering periods will commence and end on dates as determined by the ESPP administrator. However, in no event may an offering period be longer than 27 months in length.

The option purchase price will generally be designated by the administrator and may not be less than the lower of 85% of the closing trading price per share of our common stock on the first trading date of an offering period in which a participant is enrolled or 85% of the closing trading price per share on the designated purchase date within each offering period.

Unless a participant cancels his or her participation in the ESPP before the purchase date, the participant will be deemed to have exercised his or her option in full as of each purchase date. Upon exercise, the participant will purchase the number of whole shares that his or her accumulated payroll deductions will buy at the option purchase price, subject to the participation limitations listed above.

A participant may increase, decrease or suspend his or her payroll deduction authorization at any time prior to the end of the offering period, provided that the administrator may limit the number of changes a participant may make to his or her payroll deduction elections during each offering period. In the event a participant suspends his or her payroll deductions, such participant’s cumulative payroll deductions prior to the suspension will remain in his or her account and will be applied to the purchase of shares on the next occurring purchase date. A participant may also withdraw all but not less than all of the payroll deductions credited to his or her account and not yet used to exercise his or her rights no later than              prior to the end of an offering period. In the event of withdrawal, all of the participant’s payroll deductions credited to his or her account will be refunded as soon as reasonably practicable following his or her notice of withdrawal.

Rights granted under the ESPP are generally non-transferrable (other than by will or the applicable laws of descent and distribution) and are exercisable only by the participant during his or her lifetime. Any unauthorized attempt at assignment, transfer, pledge or other disposition will not be given effect.

Adjustments upon change in control and other changes in capitalization .     In the event the administrator determines that any dividend or other distribution, change in control, reorganization, liquidation, dissolution or sale or transfer of all or substantially all of the assets of the Company, or sale or exchange of our common stock or other securities or other similar corporate transaction or event affects our common stock such that an adjustment is determined by the administrator to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended by the Company to be made available under the plan, the administrator will make equitable adjustments to reflect such changes with respect to:

 

  the aggregate number and type of shares available under the ESPP (including adjustments to the maximum number of shares that may be purchased);

 

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  the class, number of shares and price per share subject to outstanding rights under the ESPP; and

 

  the purchase price with respect to any outstanding rights under the ESPP.

A change in control is defined in a manner substantially similar to the definition of a change in control under the 2016 Plan. In the event of any transaction or similar occurrence described above, or any unusual or nonrecurring transactions or events affecting the Company, any affiliate of the Company or their respective financial statements, or changes in applicable law or accounting principles, the administrator is also authorized to terminate any outstanding rights without being exercised or in exchange for cash, replace outstanding rights with other rights or property, provide that outstanding rights be assumed by a successor or survivor corporation (or parent or subsidiary thereof), make adjustments to the number and type of shares subject to outstanding rights or of rights that may be granted in the future, or provide for a participants accumulated payroll deductions to be used for purchases of common stock prior to the next occurring purchase date as the administrator may determine in its sole discretion as appropriate in order to prevent the dilution or enlargement of the benefits or potential benefits intended to be made available under the ESPP.

Amendment and termination.     The administrator may amend, suspend or terminate the ESPP at any time. However, approval of the Company’s stockholders will be required to amend the ESPP to (i) increase the aggregate number, or change the type of shares that may be sold pursuant the rights granted; (ii) change the corporations or classes of corporations or classes of corporations whose employees may be granted rights under the ESPP; or (iii) change the ESPP in any manner that would cause the ESPP to no longer be an “employee stock purchase plan” within the meaning of Section 423(b) of the Code.

We intend to file with the SEC a registration statement on Form S-8 covering the shares issuable under the 2016 Equity Plan and the ESPP.

Director compensation

We have provided each of our non-employee directors, with the exception of Mr. McGlashan, the option to either receive an annual cash payment of $ 25,000 or a one-time option to purchase 12,500 shares of our common stock in lieu of such payments. Pursuant to the Stockholders Agreement, Mr. McGlashan serves on our board of directors as a representative of the Sponsor and receives no compensation for his service on the board of directors. In addition, Mr. Shamah served as an officer of the Company until December 2015. As a result, Mr. Shamah received no compensation in respect of his service as a member of our board of directors during 2015.

During the year ended December 31, 2015, we did not pay cash compensation to any of our non-employee directors. We also did not grant any stock options or other equity awards, except with respect to Ms. Watson, who, on August 12, 2015, was granted an option to purchase 12,500 shares of our common stock in connection with her appointment to our board of directors. The option vests and becomes exercisable with respect to the underlying shares in substantially equal installments on each of the first five anniversaries of the date of grant, subject to Ms. Watson’s continued service to the Company through the applicable vesting date. In addition, we reimburse our directors for travel and other reasonable business expenses incurred in the performance of their services for us.

Director compensation table

The table set forth below describes all fees paid in 2015 to our directors who are not named executive officers.

 

Name   

Fees earned or
paid in cash

( $ )

     Option
awards
( $ )(1)
     All other
compensation
    

Total

( $ )

 

William E. McGlashan, Jr.(2)

                               

Maureen C. Watson

             27,375                 27,375   

Richard G. Wolford

                               

Joseph A. Shamah(3)

                     313,750         313,750   

Amy Shenkan(4)

                               

 

 

 

(1)   Amounts reported in the “Option Awards” column represent the grant date fair values of stock options granted under the 2014 Equity Plan, calculated in accordance with FASB Topic 718, disregarding the effects of estimated forfeitures. For a discussion of the assumptions used to calculate the value of our stock options, see note 12 to our audited financial statements included elsewhere in this prospectus. As of December 31, 2015, (i) Mr. Wolford and Mses. Watson and Shenkan each held an option to purchase 12,500 shares of our common stock and (ii) Mr. Shamah held options to purchase an aggregate of 87,750 shares of our common stock.

 

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(2)   Mr. McGlashan was appointed to our board effective August 11, 2015.

 

(3)   Amounts reported included in the column entitled “All Other Compensation” reflect base salary of $ 313,750 paid to Mr. Shamah in his capacity as an officer of the Company.

 

(4)   Ms. Shenkan ceased service on our board of directors effective April 20, 2016.

Director compensation program

In                  2016, our board of directors approved a compensation policy for our non-employee directors to be effective in connection with the consummation of this offering (the “Post-IPO Director Compensation Program”). Pursuant to the Post-IPO Director Compensation Program, our non-employee directors will receive cash compensation, paid quarterly in arrears, as follows:

 

  Each non-employee director will receive an annual cash retainer in the amount of $          ;

 

  Any non-employee chairperson of the board of directors will receive additional annual cash compensation of $         for such chairperson’s service on the board;

 

  The chairperson of the audit committee will receive additional annual compensation in the amount of $          for such chairperson’s service on the audit committee, and each non-chairperson member of the audit committee will receive additional annual cash compensation in the amount of $          for such member’s service on the audit committee;

 

  The chairperson of the compensation committee will receive additional annual compensation in the amount of $          for such chairperson’s service on the compensation committee, and each non-chairperson member of the compensation committee will receive additional annual cash compensation in the amount of $          for such member’s service on the compensation committee; and

 

  The chairperson of the nominating and corporate governance committee will receive additional annual compensation in the amount of $          for such chairperson’s service on the nominating and corporate governance committee, and each non-chairperson member of the nominating and corporate governance committee will receive additional annual cash compensation in the amount of $          for such member’s service on the nominating and corporate governance committee.

In addition, under the Post-IPO Director Compensation Program, each non-employee director who is elected or appointed to our board of directors after the completion of this offering will be granted an option purchase                 shares of our common stock upon the director’s initial appointment or election to our board of directors (the “Initial Grant”). In addition, each non-employee director who is serving on our board of directors immediately following an annual stockholder’s meeting will be granted an option to purchase                 shares of our common stock on the date of such annual stockholder’s meeting (the “Annual Grant”). The Initial Grant will vest as to                  of shares subject to the Initial Grant on each anniversary of the applicable grant date, subject to continued service through the applicable vesting date. The Annual Grant will vest as to all of the shares subject to the Annual Grant on the earlier of the first anniversary of the applicable grant date or the next annual stockholders’ meeting, subject to continued service through the vesting date. The option grants will otherwise be subject to the terms of the 2016 Plan and the Company’s standard form of option agreement.

 

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Certain relationships and related party transactions

The following is a description of transactions since January 1, 2013 in which the amount involved exceeds $ 120,000, and in which any of our directors, executive officers or holders of more than 5% of our capital stock, or an affiliate or immediate family member thereof, had or will have a direct or indirect material interest.

Registration rights

We entered into a registration rights agreement (the “Registration Rights Agreement”) on January 31, 2014 with our Sponsor and certain stockholders. The Registration Rights Agreement provides that all stockholders party to the agreement are entitled to participate in certain offerings of the Company’s securities registered under the Securities Act, subject to certain exceptions, and provides for “demand” and “piggyback” registration rights. The Registration Rights Agreement also provides that we will pay certain expenses of these stockholders relating to such registrations and indemnify them against certain liabilities that may arise under the Securities Act.

The Registration Rights Agreement has been filed as an exhibit to the registration statement of which this prospectus forms a part.

Stockholders Agreement

We entered into a stockholders agreement (the “Stockholders Agreement”) on January 31, 2014 with our Sponsor, J.A. Cosmetics Corp. and certain other stockholders. In connection with this offering, we will enter into an amended and restated stockholders agreement with our Sponsor, J.A. Cosmetics Corp., Joseph Shamah, our executive officers and certain other equity holders (the “Amended Stockholders Agreement”), which will contain provisions related to the composition of our board of directors, the committees of our board of directors and our corporate governance. Our board of directors will initially be comprised of seven directors, (i) three of whom will be designated by our Sponsor, (ii) one of whom will be designated by J.A. Cosmetics Corp., (iii) one of whom will be the Chief Executive Officer and (iv) two of whom will meet the independence criteria set forth in Rule 10A-3 under the Exchange Act. Pursuant to the terms of the Amended Stockholders Agreement, our Sponsor will have the right to designate up to three members of our board of directors so long as it holds at least 30% of our outstanding common stock, two members of our board of directors so long as it holds less than 30% but greater than or equal to 20% of our outstanding common stock, and one member of our board of directors so long as it holds less than 20% but greater than or equal to 5% of our outstanding common stock. Also under our Amended Stockholders Agreement, J.A. Cosmetics Corp. will have the right to designate one member of our board of directors so long as it holds at least 10% of our outstanding common stock. In addition, subject to applicable laws and stock exchange regulations, our Sponsor will have the right to have a representative appointed to serve on each committee of our board of directors other than the audit committee for so long as our Sponsor has the right to designate at least one director for election to our board. Pursuant to the Amended Stockholders Agreement, the holders of approximately     % of our outstanding common stock will agree to vote their shares in favor of individuals designated to serve on our board of directors by our Sponsor and J.A. Cosmetics Corp. and grant an irrevocable proxy to our Sponsor that gives it sole voting power with respect to matters relating to the composition of our board of directors and the rights of our Sponsor and J.A. Cosmetics Corp. to appoint members of our board of directors, for so long as our Sponsor has the right to designate at least one member of our board of directors. To the extent not inconsistent with Section 141(k) of the DGCL and our amended and restated certificate of incorporation, any director who is nominated by our Sponsor or J.A. Cosmetics Corp. may only be removed by our Sponsor or J.A. Cosmetics Corp., respectively, and if our Sponsor or J.A. Cosmetics Corp. provides notice of its desire to remove one of its nominated directors, our board of directors and the other parties to the Amended Stockholders Agreement shall take all reasonable action necessary to effect such removal.

In addition, the Amended Stockholders Agreement will provide that for as long as our Sponsor owns or holds, directly or indirectly, at least 30% of the shares of our outstanding common stock, we must obtain the consent of our Sponsor before we or our subsidiaries are permitted to take any of the following actions:

 

  authorize, issue or enter into any agreement providing for the issuance (contingent or otherwise) of (x) any notes or debt securities with options, warrants or other rights to acquire equity securities or otherwise containing profit participation features or (y) any equity securities other than equity securities issued to employees, directors, consultants or advisors pursuant to a plan, agreement or arrangement approved by our board of directors;

 

  liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction or series of transactions;

 

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  incur any indebtedness in an aggregate amount in excess of $50.0 million (other than indebtedness under the terms and provisions of the Senior Secured Credit Facility); and

 

  increase or decrease the size of our board of directors.

The Amended Stockholders Agreement will provide our Sponsor with certain information rights to receive our quarterly and annual financial statements so long as it has the right to designate at least one member of our board of directors. In addition, for so long as our Sponsor holds at least 5% of our outstanding common stock, our Sponsor will be permitted to review our books and records and to discuss our affairs, finances and condition with our officers.

The Amended Stockholders Agreement will further provide that it shall not preclude or in any way restrict our Sponsor or any of its affiliates from investing or participating in any particular enterprise, or trading in the securities thereof, whether or not such enterprise has products or services that compete with our products and services. The Company and the equity holders party to the Amended Stockholders Agreement will waive, in perpetuity, any and all claims in connection with the doctrine of corporate opportunity (or any similar doctrine).

Management Services Agreement

We entered into a management services agreement (the “Management Services Agreement”) with our Sponsor on January 31, 2014 whereby our Sponsor agreed to provide certain financial and strategic advisory services and consulting services. Under the Management Services Agreement, we incurred management and consulting fees of $ 0.8 million, $ 0.9 million and $ 0.5 million in the Successor 2014 Period, Successor 2015 Period and six months ended June 30, 2016, respectively. We have agreed to indemnify the Sponsor and, among others, its employees, stockholders and affiliates, against all actions, suits, claims, liabilities, losses, damages, costs and out-of-pocket expenses incurred as a result the Management Services Agreement or the acquisition of the Predecessor.

Upon the consummation of this offering, the Management Services Agreement will terminate. On termination, and in accordance with the terms of the agreement, we will pay the Sponsor the net present value of the remaining portion of any management and consulting fees owed through December 31, 2016 as well as certain other expenses of the Sponsor. We expect the amount payable on the termination of the Management Services Agreement will be approximately $ 0.2 million.

Director and executive officer compensation

Please see “Executive compensation” for information regarding compensation of directors and executive officers.

Employment agreements

We have entered into employment agreements with our executive officers. For more information regarding these agreements, see “Executive compensation—Summary compensation table.”

The employment agreements have been filed as exhibits to the registration statement of which this prospectus forms a part.

Indemnification agreements and directors’ and officers’ liability insurance

We have entered into indemnification agreements with each of our directors and executive officers. These agreements will require us to, among other things, indemnify each director and executive officer to the fullest extent permitted by Delaware law, including indemnification of expenses such as attorneys’ fees incurred by the director or executive officer in any action or proceeding, including any action or proceeding by or in right of us, arising out of the person’s services as a director or executive officer. We have obtained an insurance policy that insures our directors and officers against certain liabilities, including liabilities arising under applicable securities laws.

Other transactions

On January 25, 2016 and July 22, 2016, we loaned Tarang P. Amin, our Chief Executive Officer, Director and Chairman, $ 6.6 million at an interest rate of 0.75% and $ 1.5 million at an interest rate of 0.71%, respectively. The proceeds of the loans were used to finance the exercise price of Mr. Amin’s options to purchase common stock. As collateral for the loans, an

 

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aggregate of 956,753 shares of common stock beneficially owned by Mr. Amin were pledged to the Company pursuant to pledge and security agreements dated January 25, 2016 and July 22, 2016. In connection with the special dividend declared on June 7, 2016 (as described under “Dividend policy”), the outstanding amount of the loan provided on January 25, 2016 was reduced to $ 4.2 million. The loans were repaid in full on August 24, 2016.

On January 25, 2016, we loaned Scott K. Milsten, our Senior Vice President, General Counsel and Corporate Secretary, $ 1.0 million at an interest rate of 0.75%. The proceeds of the loan were used to finance the exercise price of Mr. Milsten’s options to purchase common stock. As collateral for the loan, 97,000 shares of common stock beneficially owned by Mr. Milsten were pledged to the Company pursuant to a pledge and security agreement dated January 25, 2016. In connection with the special dividend declared on June 7, 2016 (as described under “Dividend policy”), the outstanding amount of the loan was reduced to $ 0.6 million. The loan was repaid in full on August 22, 2016.

On February 9, 2016, we loaned John P. Bailey, our President and Chief Financial Officer, $ 2.2 million at an interest rate of 0.81%. The proceeds of the loan were used to finance the exercise price of Mr. Bailey’s options to purchase common stock. As collateral for the loan, 223,867 shares of common stock beneficially owned by Mr. Bailey were pledged to the Company pursuant to a pledge and security agreement dated February 9, 2016. In connection with the special dividend declared on June 7, 2016 (as described under “Dividend policy”), the outstanding amount of the loan was reduced to $ 1.1 million. The loan was repaid in full on August 22, 2016.

The brother-in-law of John P. Bailey, our President and Chief Financial Officer, is as an employee of the Company. The approximate dollar value of the employee’s total compensation, including equity awards, for 2016 is expected to be $ 0.3 million.

Alan Shamah, our former president, is the father of Joseph A. Shamah, a member of our board of directors. The approximate dollar value of Alan Shamah’s total compensation, including equity awards, for the combined Predecessor 2014 and Successor 2014 periods and the year ended December 31, 2015 was $ 0.6 million and $ 0.4 million, respectively.

Cosmopack LLC and Promotions Plus, each a related party entity owned by a relative of Frank Pisani, a former executive officer, manage our distribution and fulfillment operations at our New Jersey warehouse. In December 2014, Mr. Pisani concluded his employment with the Company. We incurred $ 4.1 million and $ 6.1 million for these services during the combined Predecessor 2014 and Successor 2014 periods and the year ended December 31, 2015, respectively.

Policies and procedures for related party transactions

Our board of directors has adopted a written related person transaction policy to set forth the policies and procedures for the review and approval or ratification of related person transactions. This policy will cover, with certain exceptions set forth in Item 404 of Regulation S-K, any transaction, arrangement or relationship, or any series of similar transactions, arrangements or relationships in which we were or are to be a participant, where the amount involved exceeds $ 120,000 and a related person had, has or will have a direct or indirect material interest, including, without limitation, purchases of goods or services by or from the related person or entities in which the related person has a material interest, indebtedness, guarantees of indebtedness and employment by us of a related person.

Our audit committee will be responsible for reviewing and approving in advance the related party transactions covered by our related transaction policies and procedures.

 

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Principal and selling stockholders

The following table contains information about the beneficial ownership of our common stock as of August 1, 2016, (i) immediately prior to the consummation of this offering and (ii) as adjusted to reflect the sale of shares of our common stock offered by this prospectus by:

 

  each person, or group of persons, known to us who beneficially owns more than 5% of our capital stock;
  each named executive officer;
  each of our directors;
  all directors and executive officers as a group; and
  each selling stockholder.

Our calculation of the percentage of beneficial ownership prior to and after the offering is based on 14,929,143.5 shares of common stock outstanding on August 1, 2016, which reflects the assumed conversion of all of our outstanding shares of preferred stock into an aggregate of 13,504,123.5 shares of common stock.

Beneficial ownership and percentage ownership are determined in accordance with the rules and regulations of the SEC and include voting or investment power with respect to shares of stock. This information does not necessarily indicate beneficial ownership for any other purpose. In computing the number of shares beneficially owned by a person and the percentage ownership of that person, shares of common stock subject to restrictions, options or warrants held by that person that are currently exercisable or exercisable within 60 days of August 1, 2016 are deemed outstanding. Such shares are not deemed outstanding for the purposes of computing the percentage ownership of any other person. Except as indicated in the footnotes to the following table or pursuant to applicable community property laws, we believe, based on information furnished to us, that each stockholder named in the table has sole voting and investment power with respect to the shares set forth opposite such stockholder’s name.

Pursuant to the Amended Stockholders Agreement, the holders of approximately     % of our outstanding common stock will agree to vote their shares in favor of individuals designated to serve on our board of directors by our Sponsor and J.A. Cosmetics Corp. and grant an irrevocable proxy to our Sponsor that gives it sole voting power with respect to matters relating to the composition of our board of directors and the rights of our Sponsor and J.A. Cosmetics Corp. to appoint members of our board of directors, for so long as our Sponsor has the right to designate at least one member of our board of directors. For further information regarding the Amended Stockholders Agreement and other material transactions between us and certain of our stockholders, see “Certain relationships and related party transactions.”

 

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Unless otherwise indicated in the footnotes, the address of each of the individuals named below is: c/o e.l.f. Beauty, Inc., 570 10 th Street, Oakland, California 94607.

 

     Shares beneficially owned
prior to the offering
    Shares beneficially owned after the offering  
                Excluding exercise of the
underwriters’
over-allotment option to
purchase additional shares
    Including exercise of the
underwriters’
over-allotment option to
purchase additional shares
 
Name of beneficial owner               Number     Percent     Number     Percent     Number     Percent  

Greater than 5% Stockholders:

           

Parties to the Amended Stockholders Agreement(1)

    14,655,789        93.4%          %          %   

TPG elf Holdings, L.P.(2)

    8,489,122        56.8%          %          %   

J.A. Cosmetics Corp.(3)

    2,999,999        20.1%          %          %   

Named Executive Officers and Directors:

           

Tarang P. Amin(4)

    2,129,539        14.1%          %          %   

John P. Bailey(5)

    482,664        3.2%          %          %   

Scott K. Milsten(6)

    258,065        1.7%          %          %   

Jay Brandimarte(7)

    15,600        *          %          %   

William E. McGlashan, Jr.(8)

                    %          %   

Joseph A. Shamah(9)

    3,031,199        20.3%          %          %   

Sabrina L. Simmons(10)

    12,500        *          %          %   

Maureen C. Watson(11)

    12,500        *          %          %   

Richard G. Wolford(12)

    12,500        *          %          %   

Lauren Cooks Levitan(13)

           *          %          %   

All executive officers and directors as a group (12 persons)

    6,172,967        39.3%          %          %   

 

 

 

*   Less than 1%

 

(1)   Each of the parties to the Amended Stockholders Agreement, which includes TPG elf Holdings, L.P., J.A. Cosmetics Corp., Messrs. Amin, Bailey, Baruch, Fieldman, Milsten and Shamah and Ms. Daley, among other parties, will (a) agree to vote its shares in favor of individuals designated to serve on our board of directors by TPG elf Holdings, L.P. and J.A. Cosmetics Corp. and (b) grant an irrevocable proxy in respect of all of its shares of our common stock to TPG elf Holdings, L.P. (or its permitted transferees), for so long as TPG elf Holdings, L.P. has the right to designate at least one member of our board of directors, to vote all of the shares of the common stock held by such entity or individual in connection with matters relating to the composition of our board of directors and the rights of TPG elf Holdings, L.P. and J.A. Cosmetics Corp. to appoint members of our board of directors; provided that such proxy will terminate with respect to Messrs. Amin, Bailey, Baruch, Fieldman, Milsten and Shamah and Ms. Daley and their affiliated holders if and when they are no longer executive officers, directors or holders of more than 10% of any class of our equity securities, as the case may be.

 

(2)   Consists of (a) 8,482,841 shares of common stock issuable upon conversion of preferred stock held by TPG elf Holdings, L.P. and (b) 6,281 shares of common stock held by TPG elf Holdings, L.P. As a result of the voting obligations and irrevocable proxy set forth in the Amended Stockholders Agreement, TPG elf Holdings, L.P. may be deemed to be the beneficial owner of an additional 6,166,667 shares held by the other parties to the agreement, including 234,000 shares of common stock underlying options exercisable within 60 days of August 1, 2016 held by certain executive officers of the Company who will be parties to the Amended Stockholders Agreement. The general partner of TPG elf Holdings, L.P. is TPG Growth II Advisors, Inc., a Delaware corporation. David Bonderman and James G. Coulter are the sole stockholders of TPG Growth II Advisors, Inc. and may therefore be deemed to beneficially own the securities held by TPG elf Holdings, L.P. Messrs. Bonderman and Coulter disclaim beneficial ownership of the securities held by TPG elf Holdings, L.P. except to the extent of their pecuniary interest. The address of each of TPG Growth II Advisors, Inc. and Messrs. Bonderman and Coulter is c/o TPG Global, LLC, 301 Commerce Street, Suite 3300, Fort Worth, Texas 76102.

 

(3)  

Consists of (a) 2,997,780 shares of common stock issuable upon conversion of preferred stock held by J.A. Cosmetics Corp. and (b) 2,219 shares of common stock held by J.A. Cosmetics Corp. As a result of the voting obligations set forth in the Amended Stockholders Agreement, J.A. Cosmetics Corp. may be deemed to be the beneficial owner of an additional 11,655,790 shares held by the other parties to the agreement,

 

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including 234,000 shares of common stock underlying options exercisable within 60 days of August 1, 2016 held by certain executive officers of the Company who will be parties to the Amended Stockholders Agreement. Joseph A. Shamah, Alan Shamah and Frank Pisani have shared voting, investment and dispositive power over the shares held by J.A. Cosmetics Corp. The address of J.A. Cosmetics Corp. is 1393 East 7 th  Street, Brooklyn, New York 11230.

 

(4)   Consists of (a) an aggregate of 999,260 shares of common stock issuable upon conversion of preferred stock and an aggregate of 740 shares of common stock held by family trusts over which Tarang P. Amin and his spouse each have sole investment and voting power, (b) 956,753 shares of common stock held by Mr. Amin and (c) 172,786 shares of common stock underlying stock options exercisable within 60 days of August 1, 2016 held by Mr. Amin.

 

(5)   Consists of (a) 223,867 shares of common stock held by John P. Bailey and (b) 258,797 shares of common stock underlying stock options exercisable within 60 days of August 1, 2016 held by Mr. Bailey.

 

(6)   Consists of (a) 64,951 shares of common stock issuable upon conversion of preferred stock and 48 shares of common stock held by Milsten/Conner Trust dated October 17, 2008, (b) 97,000 shares of common stock held by Scott K. Milsten and (c) 96,066.0 shares of common stock underlying stock options exercisable within 60 days of August 1, 2016 held by Mr. Milsten.

 

(7)   Includes 15,600 shares of common stock underlying stock options exercisable within 60 days of August 1, 2016 held by Jay Brandimarte.

 

(8)   William E. McGlashan, Jr. is a TPG Partner. Mr. McGlashan has no voting or investment power over and disclaims beneficial ownership of the shares held by TPG elf Holdings, L.P. The address of Mr. McGlashan is c/o TPG Global, LLC, 301 Commerce Street, Suite 3300, Fort Worth, Texas 76102.

 

(9)   Includes (a) 31,200 shares of common stock held by Joseph A. Shamah and (b) 2,997,780 shares of common stock issuable upon conversion of preferred stock and 2,219 shares of common stock held by J.A. Cosmetics Corp. Joseph A. Shamah, Alan Shamah and Frank Pisani have shared voting, investment and dispositive power over the shares held by J.A. Cosmetics Corp. Joseph A. Shamah disclaims beneficial ownership of the shares held by J.A. Cosmetics Corp. except to the extent of his pecuniary interest therein.

 

(10)   Includes 12,500 shares of common stock underlying stock options exercisable within 60 days of August 1, 2016 held by Sabrina L. Simmons.

 

(11)   Includes 12,500 shares of common stock underlying stock options exercisable within 60 days of August 1, 2016 held by Maureen C. Watson.

 

(12)   Includes 12,500 shares of common stock underlying stock options exercisable within 60 days of August 1, 2016 held by Richard G. Wolford.

 

(13)   In June 2016, Lauren Cooks Levitan was appointed to our board of directors, and on August 9, 2016 she was granted stock options exercisable for 12,500 shares of common stock, all of which are exercisable within 60 days of August 1, 2016.

 

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Description of capital stock

The following description summarizes the terms of our capital stock, our amended and restated certificate of incorporation and our amended and restated bylaws. Because it is only a summary, it does not contain all the information that may be important to you. For a complete description, you should refer to our amended and restated certificate of incorporation and amended and restated bylaws, each of which will be in effect upon the consummation of this offering, the forms of which are filed as exhibits to the registration statement of which this prospectus is a part.

Our purpose is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the DGCL. Upon the consummation of this offering, our authorized capital stock will consist of 250,000,000 shares of common stock, par value $ 0.01 per share, and 30,000,000 shares of preferred stock, par value $ 0.01 per share. As of June 30, 2016, there were outstanding 14,630,379.5 shares of common stock, on an as-converted basis, held of record by 22 stockholders. In addition, 1,737,763 shares of our common stock were issuable upon exercise of outstanding options granted under the 2014 Equity Plan. No shares of preferred stock will be issued or outstanding immediately after the offering contemplated by this prospectus. Unless our board of directors determines otherwise, we will issue all shares of our capital stock in uncertificated form.

We, our executive officers, directors and holders of substantially all of our outstanding securities, including the selling stockholders, will sign lock-up agreements with the underwriters that will, subject to certain customary exceptions, restrict the sale of the shares of our common stock and certain other securities held by them for 180 days following the date of this prospectus. J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC may, in their sole discretion and at any time without notice, release all or any portion of the shares or securities subject to any such lock-up agreements. See “Underwriting” for a description of these lock-up agreements.

Common stock

Holders of our common stock are entitled to one vote for each share held of record on all matters on which stockholders are entitled to vote generally, including the election or removal of directors. The holders of our common stock do not have cumulative voting rights in the election of directors. Upon our liquidation, dissolution or winding up and after payment in full of all amounts required to be paid to creditors and to the holders of preferred stock having liquidation preferences, if any, the holders of our common stock will be entitled to receive pro rata our remaining assets available for distribution. Holders of our common stock do not have preemptive, subscription, redemption or conversion rights. The common stock will not be subject to further calls or assessment by us. There will be no redemption or sinking fund provisions applicable to the common stock. All shares of our common stock that will be outstanding at the time of the completion of the offering will be fully paid and non-assessable. The rights, powers, preferences and privileges of holders of our common stock will be subject to those of the holders of any shares of our preferred stock we may authorize and issue in the future.

Preferred stock

Our amended and restated certificate of incorporation will authorize our board of directors to establish one or more series of preferred stock, including convertible preferred stock. Unless required by law, the authorized shares of preferred stock will be available for issuance without further action by stockholders. Our board of directors will be able to determine, with respect to any series of preferred stock, the powers including preferences and relative participations, optional or other special rights, and the qualifications, limitations or restrictions thereof, of that series, including, without limitation:

 

  the designation of the series;

 

  the number of shares of the series, which our board of directors may, except where otherwise provided in the preferred stock designation, increase (but not above the total number of authorized shares of the class) or decrease (but not below the number of shares then outstanding);

 

  whether dividends, if any, will be cumulative or non-cumulative and the dividend rate of the series;

 

  the dates at which dividends, if any, will be payable;

 

  the redemption rights and price or prices, if any, for shares of the series;

 

  the terms and amounts of any sinking fund provided for the purchase or redemption of shares of the series;

 

  the amounts payable on shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the affairs of the Company;

 

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  whether the shares of the series will be convertible into shares of any other class or series, or any other security, of the Company or any other corporation and, if so, the specification of the other class or series or other security, the conversion price or prices or rate or rates, any rate adjustments, the date or dates as of which the shares will be convertible and all other terms and conditions upon which the conversion may be made;

 

  restrictions on the issuance of shares of the same series or of any other class or series; and

 

  the voting rights, if any, of the holders of the series.

We will be able to issue a series of preferred stock that could, depending on the terms of the series, impede or discourage an acquisition attempt or other transaction that some, or a majority, of the holders of our common stock might believe to be in their best interests or in which the holders of our common stock might receive a premium for their common stock over the market price of the common stock. In addition, the issuance of preferred stock may adversely affect the rights of holders of our common stock by restricting dividends on the common stock, diluting the voting power of the common stock or subordinating the liquidation rights of the common stock. As a result of these or other factors, the issuance of preferred stock may have an adverse impact on the market price of our common stock.

Dividends

The DGCL permits a corporation to declare and pay dividends out of “surplus” or, if there is no “surplus,” out of its net profits for the fiscal year in which the dividend is declared and/or the preceding fiscal year. “Surplus” is defined as the excess of the net assets of the corporation over the amount determined to be the capital of the corporation by the board of directors. The capital of the corporation is typically calculated to be (and cannot be less than) the aggregate par value of all issued shares of capital stock. Net assets equal the fair value of the total assets minus total liabilities. The DGCL also provides that dividends may not be paid out of net profits if, after the payment of the dividend, remaining capital would be less than the capital represented by the outstanding stock of all classes having a preference upon the distribution of assets.

The declaration, amount and payment of any future dividends will be at the sole discretion of our board of directors. Our board of directors may take into account general and economic conditions, our financial condition and results of operations, our available cash and current and anticipated cash needs, capital requirements, contractual, legal, tax and regulatory restrictions and implications on the payment of dividends by us to our stockholders or by our subsidiaries to us, including restrictions under our existing credit facilities and other indebtedness we may incur, and such other factors as our board of directors may deem relevant. See “Description of certain indebtedness.” In addition, because we are a holding company and have no direct operations, we will only be able to pay dividends from funds we receive from our subsidiaries.

We currently expect to retain all future earnings for use in the operation and expansion of our business and have no current plans to pay dividends.

Annual stockholder meetings

Our amended and restated bylaws will provide that annual stockholder meetings will be held at a date, time and place, if any, as exclusively selected by our board of directors. To the extent permitted under applicable law, we may conduct meetings by remote communications, including by webcast.

Anti-takeover effects of certain provisions of our amended and restated certificate of incorporation, amended and restated bylaws and Delaware law

Certain provisions of Delaware law and our amended and restated certificate of incorporation and our amended and restated bylaws that will become effective immediately prior to the consummation of this offering contain provisions that could make the following transactions more difficult: acquisition of us by means of a tender offer; acquisition of us by means of a proxy contest or otherwise; or removal of our incumbent officers and directors. It is possible that these provisions could make it more difficult to accomplish or could deter transactions that stockholders may otherwise consider to be in their best interest or in our best interests, including transactions that might result in a premium over the market price for our shares.

These provisions, summarized below, are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our board of directors. We believe that the benefits of increased protection of our potential ability to negotiate with the proponent of an

 

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unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging these proposals because negotiation of these proposals could result in an improvement of their terms.

Delaware anti-takeover statute

After such time as the Trigger Event occurs, we will be subject to Section 203 of the DGCL, which prohibits persons deemed to be interested stockholders from engaging in a business combination with a publicly-held Delaware corporation for three years following the date these persons become interested stockholders unless the business combination is, or the transaction in which the person became an interested stockholder was, approved in a prescribed manner or another prescribed exception applies. Generally, an interested stockholder is a person who, together with affiliates and associates, owns, or within three years prior to the determination of interested stockholder status did own, 15% or more of a corporation’s voting stock. Generally, a business combination includes a merger, asset or stock sale or other transaction resulting in a financial benefit to the interested stockholder. The existence of this provision after the Trigger Event may have an anti-takeover effect with respect to transactions not approved in advance by the board of directors, such as discouraging takeover attempts that might result in a premium over the market price of our common stock.

Undesignated preferred stock

The ability to authorize undesignated preferred stock pursuant to our amended and restated certificate of incorporation will make it possible for our board of directors to issue preferred stock with voting or other rights or preferences that could impede the success of any attempt to change control of us. These and other provisions may have the effect of deterring hostile takeovers or delaying changes in control or management of our Company.

Special stockholder meetings

Our amended and restated certificate of incorporation will provide that a special meeting of stockholders may be called at any time by the board of directors or, until the occurrence of the Trigger Event, our Sponsor, but such special meetings may not be called by the stockholders or any other person or persons.

Requirements for advance notification of stockholder nominations and proposals

Our amended and restated bylaws will establish advance notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors, subject to the Amended Stockholders Agreement, other than nominations made by or at the direction of the board of directors or a committee of the board of directors.

Elimination of stockholder action by written consent

Our amended and restated certificate of incorporation will eliminate the right of stockholders to act by written consent without a meeting after the Trigger Event.

Classified board; election and removal of directors; filling vacancies

Effective upon consummation of this offering, our board of directors will be divided into three classes. The directors in each class will serve for a three-year term, one class being elected each year by our stockholders, with staggered three-year terms. Only one class of directors will be elected at each annual meeting of our stockholders, with the other classes continuing for the remainder of their respective three-year terms. Because our stockholders do not have cumulative voting rights, our stockholders holding a majority of the shares of common stock outstanding will be able to elect all of our directors. After the completion of this offering, our Sponsor and J.A. Cosmetics Corp. will hold approximately     % of our common stock and therefore will have the ability to control the composition of our board of directors, among other matters requiring stockholder approval. See “Certain relationships and related party transactions—Stockholders Agreement.” After the Trigger Event, our amended and restated certificate of incorporation will provide for the removal of any of our directors only for cause and require a stockholder vote by the holders of at least a 75% of the voting power of the then-outstanding voting stock. For more information on the classified board, see “Management—Composition of the board of directors.” Furthermore, subject to the Amended Stockholders Agreement, any vacancy on our board of directors, however occurring, including a vacancy resulting from an increase in the size of the board, may only be filled by a resolution of the board of directors unless the board of directors determines that such vacancies shall be filled by the stockholders. This system of electing and removing directors and filling vacancies may tend to discourage a third-party from making a tender offer or otherwise attempting to obtain control of us, because it generally makes it more difficult for stockholders to replace a majority of the directors.

 

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Choice of forum

Our amended and restated certificate of incorporation and our amended and restated bylaws will provide that the Court of Chancery of the State of Delaware will be the exclusive forum for any derivative action or proceeding brought on our behalf; any action asserting a breach of fiduciary duty; any action asserting a claim against us arising pursuant to the DGCL, our amended and restated certificate of incorporation or our amended and restated bylaws; or any action asserting a claim against us that is governed by the internal affairs doctrine. Although our amended and restated certificate of incorporation and amended and restated bylaws contain the choice of forum provision described above, it is possible that a court could find that such a provision is inapplicable for a particular claim or action or that such provision is unenforceable.

Corporate opportunities

Our amended and restated certificate of incorporation will provide that our Sponsor and its affiliates will not have any duty to refrain from (i) engaging, directly or indirectly, in the same or similar business activities or lines of business as us, including those business activities or lines of business deemed to be competing with us, or (ii) doing business with any of our clients, customers or vendors. In the event that our Sponsor or any of its affiliates acquire knowledge of a potential business opportunity which may be a corporate opportunity for us, they will have no duty to communicate or offer such corporate opportunity to us. Our amended and restated certificate of incorporation will also provide that, to the fullest extent permitted by law, neither our Sponsor nor any of its affiliates will be liable to us, for breach of any fiduciary duty or otherwise, by reason of the fact that our Sponsor or any of its affiliates directs such corporate opportunity to another person, or otherwise does not communicate information regarding such corporate opportunity to us, and we will waive and renounce any claim that such business opportunity constituted a corporate opportunity that should have been presented to us. In addition, any member of our board of directors designated by our Sponsor pursuant to the Amended Stockholders Agreement may consider both the interests of our Sponsor and our Sponsor’s obligations under the Amended Stockholders Agreement in exercising such board member’s powers, rights and duties as a director of our company.

Amendment of charter provisions

Before the Trigger Event, the amendment of any of the above provisions in our amended and restated certificate of incorporation will require the affirmative vote of holders of a majority of the voting power of the then-outstanding shares of voting stock. From and after the Trigger Event, the affirmative vote of holders of at least 75% of the voting power of the then-outstanding shares of voting stock will be required to amend certain provisions of our amended and restated certificate of incorporation.

The provisions of the DGCL, our amended and restated certificate of incorporation and our amended and restated bylaws could have the effect of discouraging others from attempting hostile takeovers, provided that we will not be subject to Section 203 of the DGCL until after such time as the Trigger Event occurs (see “Description of capital stock—Delaware anti-takeover statute”). As a consequence, they may also inhibit temporary fluctuations in the market price of our common stock that often result from actual or rumored hostile takeover attempts. These provisions may also have the effect of preventing changes in our management. It is possible that these provisions could make it more difficult to accomplish transactions that stockholders may otherwise deem to be in their best interests.

Limitations on liability and indemnification of officers and directors

The DGCL authorizes corporations to limit or eliminate the personal liability of directors to corporations and their stockholders for monetary damages for breaches of directors’ fiduciary duties, subject to certain exceptions. Our amended and restated certificate of incorporation will include a provision that, to the fullest extent permitted by the DGCL, eliminates the personal liability of directors to us or our stockholders for monetary damages for any breach of fiduciary duty as a director. The effect of these provisions will be to eliminate the rights of us and our stockholders, through stockholders’ derivative suits on our behalf, to recover monetary damages from a director for breach of fiduciary duty as a director, including breaches resulting from grossly negligent behavior. However, exculpation will not apply to any director if the director has acted in bad faith, knowingly or intentionally violated the law, authorized illegal dividends or redemptions or derived an improper benefit from his or her actions as a director.

Further, our amended and restated certificate of incorporation and our amended and restated bylaws will provide that we must indemnify and advance expenses to our directors and officers to the fullest extent authorized by the DGCL. We also will be expressly authorized to carry directors’ and officers’ liability insurance providing indemnification for our directors, officers and certain employees for some liabilities. We believe that these indemnification and advancement provisions and insurance will be useful to attract and retain qualified directors and officers.

 

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The limitation of liability, indemnification and advancement provisions in our amended and restated certificate of incorporation and amended and restated bylaws may discourage stockholders from bringing a lawsuit against directors for breach of their fiduciary duty. These provisions also may have the effect of reducing the likelihood of derivative litigation against directors and officers, even though such an action, if successful, might otherwise benefit us and our stockholders. In addition, your investment may be adversely affected to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions.

There is currently no pending material litigation or proceeding involving any of our directors, officers or employees for which indemnification is sought.

Listing

We plan to apply to have our common stock approved for listing on NYSE under the symbol “ELF.”

Transfer agent and registrar

The transfer agent and registrar for our common stock is Computershare Inc.

 

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Description of certain indebtedness

Senior Secured Credit Facility

Overview

On January 31, 2014, e.l.f. Beauty, Inc. (formerly known as J.A. Cosmetics Holdings, Inc.), as initial borrower, entered into a senior secured credit agreement (as amended by the first amendment to credit agreement entered into as of June 7, 2016 and together with related loan and security documents, the “Senior Secured Credit Facility”) with Bank of Montreal, as the administrative agent, swingline lender and l/c issuer and the lenders from time to time party thereto, which (as amended) provided a $ 169 million term loan facility (the “Term Loan Facility”) and a $ 25 million revolving credit facility (the “Revolving Credit Facility”). The proceeds from the Term Loan Facility were used in connection our acquisition of a controlling interest in e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.) to partially pay the acquisition purchase price; refinance the debt of e.l.f. Cosmetics, Inc.; pay related fees, costs and expenses; fund working capital; and for general corporate purposes and, in conjunction with the first amendment, pay the special dividend declared on June 7, 2016, as described under “Dividend policy” and amendment fees. e.l.f. Beauty, Inc., as the initial borrower, e.l.f. Cosmetics, Inc. and certain of our U.S. subsidiaries, each as new borrowers and obligors, and Bank of Montreal, as the administrative agent, entered into a joinder agreement to the Senior Credit Facility on January 31, 2014 whereby e.l.f. Cosmetics, Inc. and our U.S. subsidiaries party thereto joined the Senior Credit Facility as borrowers and guarantors and e.l.f. Beauty, Inc. was released from its obligations as a borrower (but not its obligations as a guarantor or grantor of security interests) under the Senior Credit Facility. Bank of Montreal, as the administrative agent, entered into a joinder agreement to the senior credit facility on July 31, 2014 whereby our subsidiaries J.A. RF, LLC and J.A. Cherry Hill, LLC joined the senior credit facility as borrowers and guarantors. The borrowers, together with e.l.f. Beauty, Inc. and the subsidiary guarantors parties thereto, are loan parties under the Senior Credit Facility.

As of June 30, 2016, there were borrowings of $ 2.0 million and an undrawn $ 0.2 million letter of credit outstanding under the Revolving Credit Facility and $ 161.4 million of borrowings outstanding under the Term Loan Facility.

Interest rate and fees

Borrowings under both the Term Loan Facility and the Revolving Credit Facility bear interest, at the borrowers’ option, at either (i) a rate per annum equal to an adjusted LIBOR rate determined by reference to the cost of funds for U.S. dollar deposits for the applicable interest period (subject to a minimum floor of 1.25%) plus an applicable margin of 5% or (ii) a floating base rate plus an applicable margin of 4%. The interest rate on both the Revolving Credit Facility and the Term Loan Facility was 6.25% as of June 30, 2016.

Interest on borrowings under the Senior Secured Credit Facility is payable (i) on the last day of any interest period with respect to LIBOR borrowing with an applicable interest period of three months or less, (ii) every three months with respect to LIBOR borrowings with an interest period of greater than three months or (iii) on the last business day of each March, June, September and December with respect to base rate borrowings. In addition, the Senior Secured Credit Facility requires payment of an unused fee equal to 0.50% times the average daily amount by which the unutilized commitments under the Revolving Credit Facility exceed the amount outstanding under the Revolving Credit Facility. The unused fee is payable on the last day of each quarter. The borrowers are also required to pay customary letter of credit fees and annual agency fees as well as an annual administrative fee of $ 50,000 for the Term Loan Facility.

Prepayments

The Senior Secured Credit Facility requires prepayment of outstanding loans, subject to certain exceptions, with:

 

  50% (which percentage will be reduced to 25% if our consolidated total net leverage ratio is less than 4.00:1.00 but greater than or equal to 3.50:1.00 and 0% if our consolidated total net leverage ratio is less than 3.50:1.00, in each case as determined as of the last day of the applicable fiscal year and subject to certain reductions) of our annual excess cash flow (defined as EBITDA less certain customary deductions including, without limitation, unfinanced capital expenditures, fees and expenses under loan documents, insurance proceeds and others);

 

  100% of the net cash proceeds of all non-ordinary course asset sales or other dispositions of property by the loan parties and their respective subsidiaries (including insurance and condemnation proceeds, subject to de minimis thresholds), (i) if we do not reinvest those net cash proceeds in assets to be used in our business within 365 days of the receipt of such net cash proceeds or (ii) if we do not commit to reinvest such net cash proceeds within 365 days of the receipt thereof and do not actually reinvest such net cash proceeds within 545 days of the receipt thereof; and

 

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  100% of the net proceeds of any issuance or incurrence of debt by the loan parties or any of their respective subsidiaries, other than debt permitted under the Senior Secured Credit Facility.

The foregoing mandatory prepayments are used to first reduce the principal installments of the Term Loan Facility (prepaying the then-next four principal installments in direct order of maturity, then pro rata to the remaining principal installments) and, second, to the Revolving Credit Facility (without a corresponding reduction in the revolving credit commitment). For the year ended December 31, 2015 and the six months ended June 30, 2016, we were not required to make any mandatory prepayments. As of June 30, 2016, our consolidated total net leverage ratio was 4.00:1.00 and our consolidated interest coverage ratio was 4.24:1.00.

We may voluntarily repay outstanding loans under the Senior Secured Credit Facility at any time without premium or penalty.

Amortization

Amortization installment payments on the Term Loan Facility are required to be made in quarterly installments of (i)  $ 656,250 plus (ii) starting with fiscal quarter ending September 30, 2016, $ 400,000, with the remaining outstanding amount to be payable on January 31, 2019, the maturity date for the Term Loan Facility. Principal amounts outstanding under the Revolving Credit Facility will be due and payable in full on January 31, 2019, the maturity date for the Revolving Credit Facility.

Guarantee and security

All obligations under the Senior Secured Credit Facility are unconditionally guaranteed by e.l.f. Beauty, Inc. and, subject to certain exceptions, each of our current and future domestic subsidiaries. All obligations under our Senior Secured Credit Facility, and the guarantees of those obligations, are secured by substantially all of the following assets of the each borrower and guarantor, subject to certain exceptions, including:

 

  a pledge of 100% of the capital stock of each of the borrowers and 100% of the equity interests directly held by each borrower and guarantor in any subsidiary of the borrower or guarantor (which pledge, in the case of any (i) non-U.S. subsidiary of a U.S. subsidiary or (ii) certain excluded U.S. subsidiaries, will not include more than 65% of the voting stock of such subsidiary), subject to certain exceptions; and

 

  a security interest in substantially all tangible and intangible assets (including intellectual property) of each borrower and guarantor, subject to certain exceptions.

Certain covenants and events of default

The Senior Secured Credit Facility contains a number of covenants that, among other things, restrict the ability of the loan parties and their respective subsidiaries to (subject to certain exceptions):

 

  incur additional indebtedness or issue preferred stock;
  create liens on assets;
  enter into sale and leaseback transactions;
  engage in mergers or consolidations;
  sell or otherwise dispose of assets;
  pay dividends and distributions or repurchase our capital stock;
  make investments, loans or advances;
  repay certain subordinated indebtedness;
  make certain acquisitions;
  engage in certain transactions with affiliates;
  amend material agreements governing subordinated indebtedness; and
  change the line of business.

The Senior Secured Credit Facility also contains customary representations and warranties, affirmative covenants, notice provisions and events of default, including a change of control. The change of control provision is triggered (a) upon or after the consummation of a qualified IPO, if any person or group other than our Sponsor and its controlled investment affiliates becomes the beneficial owner, directly or indirectly, of voting equity interests representing more than 35% of the voting equity interests of e.l.f. Beauty, Inc. and a greater percentage of voting equity interests of e.l.f. Beauty, Inc. than is then beneficially owned, directly or indirectly, in the aggregate by our Sponsor and its controlled investment affiliates, unless our Sponsor and its controlled investment affiliates has, at such time, the right or the ability by percentage of voting equity

 

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interest of e.l.f. Beauty, Inc. owned, contract or otherwise to elect or designate for election at least a majority of the board of directors of e.l.f. Beauty, Inc., (b) e.l.f. Beauty, Inc. fails to own 100% of the outstanding equity interests of e.l.f. Cosmetics, Inc. (or such entity’s permitted successor), 100% of any other issued and outstanding equity interests pledged by e.l.f. Beauty, Inc. to the administrative agent, and, directly or indirectly, 100% of the issued and outstanding equity interests of the other borrowers (except as otherwise permitted in the loan documents) and (c) the occurrence of any “change of control” or similar event under the Second Lien Term Loan or other material indebtedness.

The Senior Secured Credit Facility includes quarterly maintenance covenants that requires maintenance of (a) a certain consolidated total net leverage ratio of not more than 6.50 to 1.00 for the 12-month period ended June 30, 2016, with gradual step-downs to 4.75 to 1.00 for the 12-month period ending December 31, 2018 and (b) a certain consolidated interest coverage ratio of not less than 1.80 to 1.00 for the 12-month period ended June 30, 2016, with gradual increases to 2.40 to 1.00 for the 12-month period ending December 31, 2018. The availability of certain baskets and the ability to enter into certain transactions (including the ability of e.l.f. Beauty, Inc. to pay dividends to its stockholders) may also be subject to compliance with such leverage ratios. We were in compliance with the financial covenants in the Senior Secured Credit Facility as of June 30, 2016.

This description of the Senior Secured Credit Facility does not purport to be complete and is qualified in its entirety by reference to the full text of the senior credit documents, which are filed as exhibits to the registration statement of which this prospectus forms a part.

Second Lien Credit Facility

Overview

On January 31, 2014, e.l.f. Beauty, Inc., as initial borrower, entered into a second lien credit agreement (as amended by the first amendment to second lien credit agreement entered into as of August 14, 2014, and by the second amendment to second lien credit agreement entered into as of June 7, 2016, together with related loan and security documents, the “Second Lien Credit Facility”) with U.S. Bank National Association, as collateral agent, and the lenders from time to time party thereto, which provided a $ 40 million second lien term loan (the “Second Lien Term Loan”). The proceeds from the Second Lien Term Loan were used in connection with the acquisition to partially pay the acquisition purchase price, to refinance the debt of e.l.f. Cosmetics, Inc. and to pay related fees, costs and expenses (including amendment fees). e.l.f. Beauty, Inc., as the initial borrower, e.l.f. Cosmetics, Inc. and certain of our U.S. subsidiaries, each as new borrowers and obligors, U.S. Bank National Association, as collateral agent, and certain lenders under the Second Lien Credit Facility, entered into a joinder agreement to the second lien credit agreement on January 31, 2014 whereby e.l.f. Cosmetics, Inc. and our U.S. subsidiaries party thereto joined the Second Lien Credit Facility as borrowers and guarantors and e.l.f. Beauty, Inc. was released from its obligations as a borrower (but not its obligations as a guarantor or grantor of security interests) under the Second Lien Credit Facility and related security agreements. U.S. Bank National Association, as collateral agent, entered into a joinder agreement to the second lien credit agreement on July 31, 2014 whereby J.A. RF, LLC and J.A. Cherry Hill, LLC joined the second lien credit agreement as borrowers and guarantors. The borrowers, together with e.l.f. Beauty, Inc. and the subsidiary guarantors parties thereto, are loan parties under the Second Lien Credit Facility.

As of June 30, 2016, a total of $ 40.0 million was outstanding under the Second Lien Term Loan.

Interest rate and fees

Borrowings under the Second Lien Term Loan bear interest, at a rate per annum equal to an adjusted LIBOR rate determined by reference to the cost of funds for U.S. dollar deposits for the applicable interest period (subject to a minimum floor of 1.00%) plus an applicable margin of 10%, or, if making loans at such interest rates are illegal or unable to be determined, a floating base rate plus an applicable margin of 9%. The interest rate on the Second Lien Term Loan was 11% as of June 30, 2016. Interest is payable every three months, with respect to LIBOR borrowings, or on the last business day of each March, June, September and December, with respect to base rate borrowings. The borrowers are also required to pay annual agency fees.

Prepayments

Subject to the terms of the intercreditor agreement (which, subject to certain exceptions, requires prepayments to be made first to the senior lenders under the Senior Credit Facility until repayment in full of the obligations under the Senior Credit Facility), the Second Lien Credit Facility requires prepayment of outstanding amounts under the Second Lien Term Loan, subject to certain exceptions, with:

 

 

50% (which percentage will be reduced to 25% if our consolidated total net leverage ratio is less than 4.60:1.00 but greater than or equal to 4.03:1.00 and 0% if our consolidated total net leverage ratio is less than 3.50:1.00, in each case

 

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as determined as of the last day of the applicable fiscal year and subject to certain reductions) of our annual excess cash flow (defined as EBITDA less certain customary deductions including, without limitation, unfinanced capital expenditures, fees and expenses under loan documents, insurance proceeds and others);

 

  100% of the net cash proceeds of all non-ordinary course asset sales or other dispositions of property by the loan parties and their respective subsidiaries (including insurance and condemnation proceeds, subject to de minimis thresholds), (i) if we do not reinvest those net cash proceeds in assets to be used in our business within 365 days of the receipt of such net cash proceeds or (ii) if we do not commit to reinvest such net cash proceeds within 365 days of the receipt thereof and do not actually reinvest such net cash proceeds within 545 days of the receipt thereof; and

 

  100% of the net proceeds of any issuance or incurrence of debt by the loan parties or any of their respective subsidiaries, other than debt permitted under the Second Lien Credit Facility.

The foregoing mandatory prepayments are used to reduce the outstanding amount of the Second Lien Term Loan. For the year ended December 31, 2015 and the six months ended June 30, 2016, we were not required to make any mandatory prepayments.

Subject to the terms of the intercreditor agreement, we may voluntarily repay outstanding loans under the Second Lien Term Loan at any time.

In the event that all or any portion of the Second Lien Term Loan is voluntarily prepaid for any reason other than in connection with a change of control or mandatorily prepaid due to debt incurrence (other than in connection with a change of control), such prepayment will be made at: (i) 104% of the principal amount of the loans prepaid if prepayment is made on or prior to the first anniversary of the closing date, (ii) 102% of the principal amount of the loans prepaid if prepayment is made after the first anniversary of the closing date and on or prior to the second anniversary of the closing date, (iii) 101% of the principal amount of the loans prepaid if prepayment is made after the second anniversary of the closing date and on or prior to the third anniversary of the closing date and (iv) par if prepayment is made after the third anniversary of the closing date. In the event that all or any portion of the Second Lien Term Loan is voluntarily prepaid in connection with a change of control or mandatorily prepaid due to debt incurrence in connection with a change of control, such prepayment will be made will be made at: (a) 101% of the principal amount of the loans prepaid if prepayment is made on or prior to the third anniversary of the closing date and (b) par if prepayment is made after the third anniversary of the closing date.

Maturity date

We are required to pay the outstanding aggregate principal amount of the Second Lien Term Loan, together with all accrued and unpaid interest, on July 31, 2019.

Guarantee and security

All obligations under the Second Lien Credit Facility are unconditionally guaranteed by e.l.f. Beauty, Inc. and, subject to certain exceptions, each of our current and future domestic subsidiaries. All of the obligations under our Second Lien Credit Facility, and the guarantees of those obligations, are secured by a second priority security interest in substantially all of the same collateral securing the Senior Secured Credit Facility.

Certain covenants and events of default

The Second Lien Credit Facility contains substantially similar covenants and events of defaults as the Senior Secured Credit Facility. The Second Lien Credit Facility’s quarterly maintenance covenants require maintenance of (i) a certain consolidated total net leverage ratio of not more than 8.05 to 1.00 for the 12-month period ending June 30, 2014, with gradual step-downs to 5.45 to 1.00 for the 12-month period ending December 31, 2018 and (ii) a certain consolidated interest coverage ratio of not less than 1.55 to 1.00 for the 12-month period ending June 30, 2014, with gradual increases to 2.05 to 1.00 for the 12-month period ending December 31, 2018. The availability of certain baskets and ability to enter into certain transactions (including the ability of e.l.f. Beauty, Inc. to pay dividends to our stockholders) may also be subject to compliance with such ratios. We were in compliance with the financial covenants in the Second Lien Credit Facility as of June 30, 2016.

This description of the Second Lien Credit Facility does not purport to be complete and is qualified, in its entirety, by reference to the full text of the second lien credit documents, which are filed as exhibits to the registration statement of which this prospectus forms a part.

 

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Shares eligible for future sale

Prior to this offering, there has been no public market for shares of our common stock. We cannot predict the effect, if any, future sales of shares of common stock, or the availability for future sale of shares of common stock, will have on the market price of shares of our common stock prevailing from time to time. Future sales of substantial amounts of our common stock in the public market or the perception that such sales might occur may adversely affect market prices prevailing from time to time. Furthermore, there may be sales of substantial amounts of our common stock in the public market after the existing legal and contractual restrictions lapse. This may adversely affect the prevailing market price and our ability to raise equity capital in the future. See “Risk factors—Risks related to this offering and ownership of our common stock—Future sales, or the perception of future sales, by us or our existing stockholders in the public market following this offering could cause the market price of our common stock to decline.”

Upon completion of this offering, we will have a total of                 shares of our common stock outstanding. Of the outstanding shares, the shares sold or issued in this offering will be freely tradable without restriction or further registration under the Securities Act, except that any shares held by our affiliates, as that term is defined under Rule 144 of the Securities Act, may be sold only in compliance with the limitations described below. The remaining outstanding                 shares of common stock held by existing our stockholders, including our Sponsor and certain of our directors and officers, after this offering will be deemed restricted securities under the meaning of Rule 144 and may be sold in the public market only if registered or if they qualify for an exemption from registration, including the exemptions pursuant to Rule 144 under the Securities Act, which we summarize below.

Lock-up agreements

There are approximately                 shares of common stock (including options) held by executive officers, directors and our existing stockholders, who are subject to lock-up agreements for a period of 180 days after the date of this prospectus, under which they have agreed not to sell or otherwise dispose of their shares of common stock, subject to certain exceptions. J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC may, in their sole discretion and at any time without notice, release all or any portion of the shares subject to any such lock-up agreements. See “Underwriting.”

Rule 144

In general, under Rule 144, as currently in effect, an affiliate who beneficially owns shares that were purchased from us, or any affiliate, at least six months previously, is entitled to sell, upon the expiration of the lock-up agreement described in “Underwriting,” within any three-month period beginning 180 days after the date of this prospectus, a number of shares that does not exceed the greater of 1% of our then-outstanding shares of common stock, which equals approximately                 shares immediately after this offering, or the average reported weekly trading volume of our common stock on NYSE during the four calendar weeks preceding the filing of a notice of the sale on Form 144.

Sales under Rule 144 by our affiliates or persons selling shares on behalf of our affiliates are also subject to certain manner of sale provisions, notice requirements and the availability of current public information about us. The sale of these shares, or the perception that sales will be made, may adversely affect the price of our common stock after this offering because a large number of shares would be, or would be perceived to be, available for sale in the public market.

Following this offering, a person who is not deemed to be or have been an affiliate of ours at the time of, or at any time during the three months preceding, a sale and who has beneficially owned restricted securities within the meaning of Rule 144 for at least six months, may sell such shares subject only to the availability of current public information about us, and any such person who has beneficially owned restricted shares of our common stock for at least one year may sell such shares without restriction.

We are unable to estimate the number of shares that will be sold under Rule 144 since this will depend on the market price for our common stock, the personal circumstances of the stockholder and other factors.

Rule 701

In general, under Rule 701, as currently in effect, any of our employees, directors, officers, consultants or advisors who purchase shares from us in connection with a compensatory stock or option plan or other written agreement before the effective date of this offering is entitled to resell such shares 90 days after the effective date of this offering in reliance on Rule 144.

 

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Securities issued in reliance on Rule 701 are restricted securities and, subject to the contractual restrictions described above, beginning 90 days after the date of this prospectus, may be sold by persons other than “affiliates,” as defined in Rule 144, subject only to the manner of sale provisions of Rule 144 and by “affiliates” under Rule 144 without compliance with its one-year minimum holding period requirement.

Registration statements on Form S-8

We intend to file one or more registration statements on Form S-8 under the Securities Act to register all shares of our common stock subject to outstanding stock options and the shares of stock subject to issuance under the 2016 Plan and the ESPP. Any such Form S-8 registration statement will automatically become effective upon filing. Accordingly, shares registered under such registration statements will be available for sale in the open market. We expect that the initial registration statement on Form S-8 will cover                 shares.

Registration rights agreement

For a description of rights some holders of common stock have to require us to register the shares of common stock they own, see “Certain relationships and related party transactions—Registration rights.” Registration of these shares under the Securities Act would result in these shares becoming freely tradable without restriction under the Securities Act immediately upon effectiveness of the applicable registration statement.

 

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Material U.S. federal income tax consequences to non-U.S. holders

The following discussion is a summary of the material U.S. federal income tax consequences to Non-U.S. Holders (as defined below) of the purchase, ownership and disposition of our common stock issued pursuant to this offering, but does not purport to be a complete analysis of all potential tax effects. The effects of other U.S. federal tax laws, such as estate and gift tax laws and any applicable state, local or non-U.S. tax laws are not discussed. This discussion is based on the Code, Treasury Regulations promulgated thereunder, judicial decisions, and published rulings and administrative pronouncements of the U.S. Internal Revenue Service (the “IRS”), in each case in effect as of the date hereof. These authorities may change or be subject to differing interpretations. Any such change or differing interpretation may be applied retroactively in a manner that could adversely affect a Non-U.S. Holder. We have not sought and will not seek any rulings from the IRS regarding the matters discussed below. There can be no assurance the IRS or a court will not take a contrary position to that discussed below regarding the tax consequences of the purchase, ownership and disposition of our common stock.

This discussion is limited to Non-U.S. Holders that hold our common stock as a “capital asset” within the meaning of Section 1221 of the Code (generally, property held for investment). This discussion does not address all U.S. federal income tax consequences relevant to a Non-U.S. Holder’s particular circumstances, including the impact of the Medicare contribution tax on net investment income. In addition, it does not address consequences relevant to Non-U.S. Holders subject to special rules, including, without limitation:

 

  U.S. expatriates and former citizens or long-term residents of the United States;

 

  persons subject to the alternative minimum tax;

 

  persons holding our common stock as part of a hedge, straddle or other risk reduction strategy or as part of a conversion transaction or other integrated investment;

 

  banks, insurance companies and other financial institutions;

 

  brokers, dealers or traders in securities;

 

  “controlled foreign corporations,” “passive foreign investment companies” and corporations that accumulate earnings to avoid U.S. federal income tax;

 

  partnerships or other entities or arrangements treated as partnerships for U.S. federal income tax purposes (and investors therein);

 

  tax-exempt organizations or governmental organizations;

 

  persons deemed to sell our common stock under the constructive sale provisions of the Code;

 

  persons who hold or receive our common stock pursuant to the exercise of any employee stock option or otherwise as compensation; and

 

  tax-qualified retirement plans.

If an entity treated as a partnership for U.S. federal income tax purposes holds our common stock, the tax treatment of a partner in the partnership will depend on the status of the partner, the activities of the partnership and certain determinations made at the partner level. Accordingly, partnerships holding our common stock and the partners in such partnerships should consult their tax advisors regarding the U.S. federal income tax consequences to them.

THIS DISCUSSION IS NOT TAX ADVICE. INVESTORS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATIONS AS WELL AS ANY TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF OUR COMMON STOCK ARISING UNDER THE U.S. FEDERAL ESTATE OR GIFT TAX LAWS OR UNDER THE LAWS OF ANY STATE, LOCAL OR NON-U.S. TAXING JURISDICTION OR UNDER ANY APPLICABLE INCOME TAX TREATY.

Definition of a Non-U.S. Holder

For purposes of this discussion, a “Non-U.S. Holder” is any beneficial owner of our common stock that is neither a “U.S. person” nor an entity treated as a partnership for U.S. federal income tax purposes. A U.S. person is any person that, for U.S. federal income tax purposes, is or is treated as any of the following:

 

  an individual who is a citizen or resident of the United States;

 

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  a corporation created or organized under the laws of the United States, any state thereof or the District of Columbia;

 

  an estate, the income of which is subject to U.S. federal income tax regardless of its source; or

 

  a trust that (i) is subject to the primary supervision of a U.S. court and all substantial decisions of which are subject to the control of one or more “United States persons” (within the meaning of Section 7701(a)(30) of the Code) or (ii) has a valid election in effect to be treated as a United States person for U.S. federal income tax purposes.

Distributions

As described in the section entitled “Dividend policy,” we do not anticipate paying any additional cash dividends in the foreseeable future. However, if we do make distributions of cash or property on our common stock, such distributions will constitute dividends for U.S. federal income tax purposes to the extent paid from our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. Amounts not treated as dividends for U.S. federal income tax purposes will constitute a return of capital and first be applied against and reduce a Non-U.S. Holder’s adjusted tax basis in its common stock, but not below zero. Any excess will be treated as capital gain and will be treated as described below under “—Sale or other taxable disposition.”

Subject to the discussion below of effectively connected income, dividends paid to a Non-U.S. Holder will be subject to U.S. federal withholding tax at a rate of 30% of the gross amount of the dividends (or such lower rate specified by an applicable income tax treaty, provided the Non-U.S. Holder furnishes a valid IRS Form W-8BEN or W-8BEN-E (or other applicable documentation) certifying qualification for the lower treaty rate). A Non-U.S. Holder that does not timely furnish the required documentation, but that qualifies for a reduced treaty rate, may obtain a refund of any excess amounts withheld by timely filing an appropriate claim for refund with the IRS. Non-U.S. Holders should consult their tax advisors regarding their entitlement to benefits under any applicable tax treaties.

If dividends paid to a Non-U.S. Holder are effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, the Non-U.S. Holder maintains a permanent establishment in the United States to which such dividends are attributable), the Non-U.S. Holder will be exempt from the U.S. federal withholding tax described above. To claim the exemption, the Non-U.S. Holder must furnish to the applicable withholding agent a valid IRS Form W-8ECI, certifying that the dividends are effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States.

Any such effectively connected dividends will be subject to U.S. federal income tax on a net income basis at the regular graduated rates. A Non-U.S. Holder that is a corporation also may be subject to a branch profits tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) on such effectively connected dividends, as adjusted for certain items. Non-U.S. Holders should consult their tax advisors regarding any applicable tax treaties that may provide for different rules.

Sale or other taxable disposition

A Non-U.S. Holder will not be subject to U.S. federal income tax on any gain realized upon the sale or other taxable disposition of our common stock unless:

 

  the gain is effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, the Non-U.S. Holder maintains a permanent establishment in the United States to which such gain is attributable);

 

  the Non-U.S. Holder is a nonresident alien individual present in the United States for 183 days or more during the taxable year of the disposition and certain other requirements are met; or

 

  our common stock constitutes a U.S. real property interest (“USRPI”) by reason of our status as a U.S. real property holding corporation (“USRPHC”) for U.S. federal income tax purposes.

Gain described in the first bullet point above generally will be subject to U.S. federal income tax on a net income basis at the regular graduated rates. A Non-U.S. Holder that is a corporation also may be subject to a branch profits tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) on such effectively connected gain, as adjusted for certain items.

 

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Gain described in the second bullet point above will be subject to U.S. federal income tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty), which may be offset by certain U.S. source capital losses of the Non-U.S. Holder (even though the individual is not considered a resident of the United States), provided the Non-U.S. Holder has timely filed U.S. federal income tax returns with respect to such losses.

With respect to the third bullet point above, we believe we currently are not, and do not anticipate becoming, a USRPHC. Because the determination of whether we are a USRPHC depends, however, on the fair market value of our USRPIs relative to the fair market value of our non-U.S. real property interests and our other business assets, there can be no assurance we currently are not a USRPHC or will not become one in the future. Even if we are or were to become a USRPHC, gain arising from the sale or other taxable disposition by a Non-U.S. Holder of our common stock will not be subject to U.S. federal income tax if our common stock is “regularly traded,” as defined by applicable Treasury Regulations, on an established securities market, and such Non-U.S. Holder owned, actually and constructively, 5% or less of our common stock throughout the shorter of the five-year period ending on the date of the sale or other taxable disposition or the Non-U.S. Holder’s holding period.

Non-U.S. Holders should consult their tax advisors regarding any applicable tax treaties that may provide for different rules.

Information reporting and backup withholding

Payments of dividends on our common stock will not be subject to backup withholding, provided the Non-U.S. Holder certifies its non-U.S. status, such as by furnishing a valid IRS Form W-8BEN, W-8BEN-E or W-8ECI, or otherwise establishes an exemption. However, information returns are required to be filed with the IRS in connection with any dividends on our common stock paid to the Non-U.S. Holder, regardless of whether any tax was actually withheld. In addition, proceeds of the sale or other taxable disposition of our common stock within the United States or conducted through certain U.S.-related brokers generally will not be subject to backup withholding or information reporting if the applicable withholding agent receives the certification described above or the Non-U.S. Holder otherwise establishes an exemption. Proceeds of a disposition of our common stock conducted through a non-U.S. office of a non-U.S. broker that does not have certain enumerated relationships with the United States generally will not be subject to backup withholding or information reporting.

Copies of information returns that are filed with the IRS may also be made available under the provisions of an applicable treaty or agreement to the tax authorities of the country in which the Non-U.S. Holder resides or is established.

Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against a Non-U.S. Holder’s U.S. federal income tax liability, provided the required information is timely furnished to the IRS.

Additional withholding tax on payments made to foreign accounts

Withholding taxes may be imposed under Sections 1471 to 1474 of the Code (such Sections commonly referred to as the Foreign Account Tax Compliance Act, or “FATCA”) on certain types of payments made to non-U.S. financial institutions and certain other non-U.S. entities. Specifically, a 30% withholding tax may be imposed on dividends on, or gross proceeds from the sale or other disposition of, our common stock paid to a “foreign financial institution” or a “non-financial foreign entity” (each as defined in the Code), unless (i) the foreign financial institution undertakes certain diligence and reporting obligations, (ii) the non-financial foreign entity either certifies it does not have any “substantial United States owners” (as defined in the Code) or furnishes identifying information regarding each substantial United States owner, or (iii) the foreign financial institution or non-financial foreign entity otherwise qualifies for an exemption from these rules. If the payee is a foreign financial institution and is subject to the diligence and reporting requirements in (i) above, it must enter into an agreement with the U.S. Department of the Treasury requiring, among other things, that it undertake to identify accounts held by certain “specified United States persons” or “United States-owned foreign entities” (each as defined in the Code), annually report certain information about such accounts, and withhold 30% on certain payments to non-compliant foreign financial institutions and certain other account holders. Foreign financial institutions located in jurisdictions that have an intergovernmental agreement with the United States governing FATCA may be subject to different rules.

Under the applicable Treasury Regulations and administrative guidance, withholding under FATCA generally applies to payments of dividends on our common stock, and will apply to payments of gross proceeds from the sale or other disposition of such stock on or after January 1, 2019.

Prospective investors should consult their tax advisors regarding the potential application of withholding under FATCA to their investment in our common stock.

 

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Underwriting

We and the selling stockholders are offering the shares of common stock described in this prospectus through a number of underwriters. J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC are acting as joint book-running managers of the offering and as representatives of the underwriters. We and the selling stockholders have entered into an underwriting agreement with the underwriters. Subject to the terms and conditions of the underwriting agreement, we and the selling stockholders have agreed to sell to the underwriters, and each underwriter has severally agreed to purchase, at the public offering price less the underwriting discounts and commissions set forth on the cover page of this prospectus, the number of shares of common stock listed next to its name in the following table:

 

Name   

Number of

shares

 

J.P. Morgan Securities LLC

  

Morgan Stanley & Co. LLC

  

Piper Jaffray & Co.

  

Wells Fargo Securities, LLC

  

William Blair & Company, L.L.C.

  

Cowen and Company, LLC

  

BMO Capital Markets Corp.

  

Stifel, Nicolaus & Company, Incorporated

  

SunTrust Robinson Humphrey, Inc.

  
  

 

 

 

Total

  

 

 

The underwriters are committed to purchase all the common shares offered by us and the selling stockholders if they purchase any shares. The underwriting agreement also provides that if an underwriter defaults, the purchase commitments of non-defaulting underwriters may also be increased or the offering may be terminated.

The underwriters propose to offer the common shares directly to the public at the initial public offering price set forth on the cover page of this prospectus and to certain dealers at that price less a concession not in excess of $          per share. Any such dealers may resell shares to certain other brokers or dealers at a discount of up to $          per share from the initial public offering price. After the initial public offering of the shares, the offering price and other selling terms may be changed by the underwriters. Sales of shares made outside of the United States may be made by affiliates of the underwriters.

The underwriters have an option to buy up to                 additional shares of common stock from us to cover sales of shares by the underwriters which exceed the number of shares specified in the table above. The underwriters have 30 days from the date of this prospectus to exercise this option. If any shares are purchased with this option, the underwriters will purchase shares in approximately the same proportion as shown in the table above. If any additional shares of common stock are purchased, the underwriters will offer the additional shares on the same terms as those on which the shares are being offered.

At our request, the underwriters have reserved up to 5% of the shares of common stock offered by this prospectus for sale, at the initial public offering price, to our directors, officers and other individuals associated with them, and our employees, to the extent permitted by local securities laws and regulations. The sales will be made at our direction by Morgan Stanley & Co. LLC, an underwriter of this offering, and its affiliates through a directed share program. We do not know if these persons will choose to purchase all or any portion of these reserved shares, but any purchases they do make will reduce the number of shares available to the general public. Any reserved shares not so purchased will be offered by the underwriters to the general public on the same terms as the other shares of common stock offered by this prospectus. Any shares sold in the directed share program to our directors, executive officers or stockholders who have entered into lock-up agreements described in this section shall be subject to the provisions of such lock-up agreements. Other participants in the directed share program shall be subject to substantially similar lock-up provisions with respect to any shares sold to them pursuant to the directed share program.

The underwriting fee is equal to the public offering price per share of common stock less the amount paid by the underwriters to us and the selling stockholders per share of common stock. The underwriting fee is $          per share. The following table shows the per share and total underwriting discounts and commissions to be paid to the underwriters assuming both no exercise and full exercise of the underwriters’ option to purchase additional shares.

 

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      Without
over-allotment
exercise
     With full
over-allotment
exercise
 

Per Share

   $                $            

Total

   $                $            

 

 

We estimate that the total expenses of this offering, including registration, filing and listing fees, printing fees and legal and accounting expenses, but excluding the underwriting discounts and commissions, will be approximately $         . We have agreed to reimburse the underwriters for certain FINRA-related and other expenses incurred by them in connection with this offering in an amount up to $         .

A prospectus in electronic format may be made available on the web sites maintained by one or more underwriters, or selling group members, if any, participating in the offering. The underwriters may agree to allocate a number of shares to underwriters and selling group members for sale to their online brokerage account holders. Internet distributions will be allocated by the representatives to underwriters and selling group members that may make Internet distributions on the same basis as other allocations.

We have agreed not to (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, or file with the SEC a registration statement under the Securities Act relating to, any shares of our common stock or securities convertible into or exchangeable or exercisable for any shares of our common stock, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing, or (ii) enter into any swap or other arrangement that transfers all or a portion of the economic consequences associated with the ownership of any shares of common stock or any such other securities (regardless of whether any of these transactions are to be settled by the delivery of shares of common stock or such other securities, in cash or otherwise), in each case without the prior written consent of J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC for a period of 180 days after the date of this prospectus, other than the shares of our common stock to be sold hereunder, any shares of our common stock awarded, issued upon the exercise of options or purchase rights, issued upon vesting of equity awards and/or settlement of other awards granted under our existing stock incentive plans, the filing of registration statements on Form S-8 with respect to benefit plans and the issuance of common stock and securities convertible or exercisable or exchangeable for common stock, in an aggregate amount not to exceed 10% of our outstanding securities as of the date of closing of this offering, in connection with one more acquisitions of a company or a business, securities, property or assets of another person or entity, joint ventures, commercial relationships or strategic alliances.

Our directors and executive officers and holders of substantially all of our outstanding securities, including the selling stockholders, have entered into lock-up agreements with the underwriters prior to the commencement of this offering pursuant to which each of these persons or entities, with limited exceptions, for a period of 180 days after the date of this prospectus, may not, without the prior written consent of J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC on behalf of the Underwriters, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of our common stock or any securities convertible into or exercisable or exchangeable for our common stock (including, without limitation, common stock or such other securities which may be deemed to be beneficially owned by such directors, executive officers, managers and members in accordance with the rules and regulations of the SEC and securities which may be issued upon exercise of a stock option or warrant) or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the common stock or such other securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of common stock or such other securities, in cash or otherwise, or (iii) make any demand for or exercise any right with respect to the registration of any shares of our common stock or any security convertible into or exercisable or exchangeable for our common stock. The restrictions described in the immediately preceding paragraph do not apply to certain exceptions described therein.

We and the selling stockholders have agreed to indemnify the underwriters against certain liabilities, including liabilities under the Securities Act.

We intend to apply to have our common stock approved for listing on NYSE under the symbol “ELF.”

In connection with this offering, the underwriters may engage in stabilizing transactions, which involves making bids for, purchasing and selling shares of common stock in the open market for the purpose of preventing or retarding a decline in the market price of the common stock while this offering is in progress. These stabilizing transactions may include making

 

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short sales of the common stock, which involves the sale by the underwriters of a greater number of shares of common stock than they are required to purchase in this offering, and purchasing shares of common stock on the open market to cover positions created by short sales. Short sales may be “covered” shorts, which are short positions in an amount not greater than the underwriters’ option referred to above, or may be “naked” shorts, which are short positions in excess of that amount. The underwriters may close out any covered short position either by exercising their option, in whole or in part, or by purchasing shares in the open market. In making this determination, the underwriters will consider, among other things, the price of shares available for purchase in the open market compared to the price at which the underwriters may purchase shares through the option to purchase additional shares. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the common stock in the open market that could adversely affect investors who purchase in this offering. To the extent that the underwriters create a naked short position, they will purchase shares in the open market to cover the position.

The underwriters have advised us and the selling stockholders that, pursuant to Regulation M of the Securities Act, they may also engage in other activities that stabilize, maintain or otherwise affect the price of the common stock, including the imposition of penalty bids. This means that if the representatives of the underwriters purchase common stock in the open market in stabilizing transactions or to cover short sales, the representatives can require the underwriters that sold those shares as part of this offering to repay the underwriting discount received by them.

These activities may have the effect of raising or maintaining the market price of the common stock or preventing or retarding a decline in the market price of the common stock, and, as a result, the price of the common stock may be higher than the price that otherwise might exist in the open market. If the underwriters commence these activities, they may discontinue them at any time. The underwriters may carry out these transactions on NYSE, in the OTC market or otherwise.

Prior to this offering, there has been no public market for our common stock. The initial public offering price will be determined by negotiations among us, the selling stockholders and the representatives of the underwriters. In determining the initial public offering price, we, the selling stockholders and the representatives of the underwriters expect to consider a number of factors including:

 

  the information set forth in this prospectus and otherwise available to the representatives;

 

  our prospects and the history and prospects for the industry in which we compete;

 

  an assessment of our management;

 

  our prospects for future earnings;

 

  the general condition of the securities markets at the time of this offering;

 

  the recent market prices of, and demand for, publicly traded common stock of generally comparable companies; and

 

  other factors deemed relevant by the underwriters and us.

Neither we, the selling stockholders nor the underwriters can assure investors that an active trading market will develop for our common shares, or that the shares will trade in the public market at or above the initial public offering price.

Certain of the underwriters and their affiliates may provide to us and our affiliates from time to time in the future certain commercial banking, financial advisory, investment banking and other services for us and such affiliates in the ordinary course of their business, for which they may receive customary fees and commissions. In addition, from time to time, certain of the underwriters and their affiliates may effect transactions for their own account or the account of customers, and hold on behalf of themselves or their customers, long or short positions in our debt or equity securities or loans, and may do so in the future.

Selling restrictions

General

Other than in the United States, no action has been taken by us or the underwriters that would permit a public offering of the securities offered by this prospectus in any jurisdiction where action for that purpose is required. The securities offered by this prospectus may not be offered or sold, directly or indirectly, nor may this prospectus or any other offering material or advertisements in connection with the offer and sale of any such securities be distributed or published in any jurisdiction,

 

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except under circumstances that will result in compliance with the applicable rules and regulations of that jurisdiction. Outside of the United States, persons into whose possession this prospectus comes are advised to inform themselves about and to observe any restrictions imposed by any applicable laws and regulations outside of the United States relating to the offering and the distribution of this prospectus.

This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any securities offered by this prospectus in any jurisdiction in which such an offer or a solicitation is unlawful.

United Kingdom

This document is only being distributed to and is only directed at (i) persons who are outside the United Kingdom or (ii) to investment professionals falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the “Order”) or (iii) high net worth entities, and other persons to whom it may lawfully be communicated, falling with Article 49(2)(a) to (d) of the Order (all such persons together being referred to as “relevant persons”). The securities are only available to, and any invitation, offer or agreement to subscribe, purchase or otherwise acquire such securities will be engaged in only with, relevant persons. Any person who is not a relevant person should not act or rely on this document or any of its contents.

European Economic Area

In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), from and including the date on which the European Union Prospectus Directive (the “EU Prospectus Directive”) was implemented in that Relevant Member State (the “Relevant Implementation Date”) an offer of securities described in this prospectus may not be made to the public in that Relevant Member State prior to the publication of a prospectus in relation to the shares which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the EU Prospectus Directive, except that, with effect from and including the Relevant Implementation Date, an offer of securities described in this prospectus may be made to the public in that Relevant Member State at any time:

 

  to any legal entity which is a qualified investor as defined under the EU Prospectus Directive;

 

  to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150 natural or legal persons (other than qualified investors as defined in the EU Prospectus Directive); or

 

  in any other circumstances falling within Article 3(2) of the EU Prospectus Directive, provided that no such offer of securities described in this prospectus shall result in a requirement for the publication by us of a prospectus pursuant to Article 3 of the EU Prospectus Directive.

For the purposes of this provision, the expression an “offer of securities to the public” in relation to any securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the securities to be offered so as to enable an investor to decide to purchase or subscribe for the securities, as the same may be varied in that Member State by any measure implementing the EU Prospectus Directive in that Member State. The expression “EU Prospectus Directive” means Directive 2003/71/EC (and any amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State) and includes any relevant implementing measure in each Relevant Member State, and the expression “2010 PD Amending Directive” means Directive 2010/73/EU.

Canada

The common stock may be sold only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of shares of the common stock must be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements of applicable securities laws.

Securities legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this prospectus (including any amendment thereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser’s province or territory. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser’s province or territory for particulars of these rights or consult with a legal advisor.

 

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Pursuant to section 3A.3 of National Instrument 33-105 Underwriting Conflicts (NI 33-105), the underwriters are not required to comply with the disclosure requirements of NI 33-105 regarding underwriter conflicts of interest in connection with this offering.

Legal matters

The validity of the issuance of the shares of common stock offered by the Company will be passed upon for e.l.f. Beauty, Inc. by Latham & Watkins LLP, Menlo Park, California. Certain legal matters relating to this offering will be passed upon for the underwriters by Ropes & Gray LLP, San Francisco, California.

Experts

The consolidated financial statements as of December 31, 2015 (Successor) and 2014 (Successor), and for the period from January 1, 2014 through January 31, 2014 (Predecessor), the period from February 1, 2014 through December 31, 2014 (Successor) and the year ended December 31, 2015 (Successor), included in this registration statement have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report appearing herein. Such consolidated financial statements have been so included in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.

Where you can find additional information

We have filed with the SEC a registration statement on Form S-1 under the Securities Act with respect to the shares of common stock offered by this prospectus. This prospectus does not contain all of the information set forth in the registration statement and its exhibits, certain portions of which are omitted as permitted by the rules and regulations of the SEC. For further information pertaining to us and our common stock, we refer you to the registration statement, including its exhibits and the financial statements, notes and schedules filed as a part of that registration statement. Statements contained in this prospectus regarding the contents of any contract or other document referred to in those documents are not necessarily complete, and in each instance we refer you to the copy of the contract or other document filed as an exhibit to the registration statement or other document. Each of these statements is qualified in all respects by this reference.

You may read and copy the registration statement and its exhibits and schedules at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549. You also may obtain information on the operation of the public reference room by calling the commission at 1-800-SEC-0330. The SEC maintains a website at www.sec.gov that contains reports, proxy and information statements and other information regarding registrants, such as e.l.f. Beauty, Inc., that file electronically with the SEC.

As a result of this offering, we will become subject to the information and reporting requirements of the Exchange Act and, in accordance with this law, will file periodic reports, proxy statements and other information with the SEC. These periodic reports, proxy statements and other information will be available for inspection and copying at the SEC’s public reference facilities and the website of the SEC referred to above. We also maintain a website at www.elfcosmetics.com. Upon completion of this offering, you may access these materials free of charge as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC. Information contained on our website is not a part of this prospectus and the inclusion of our website address in this prospectus is an inactive textual reference only.

 

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Index to consolidated financial statements

 

Audited financial statements

  

Report of Independent Registered Public Accounting Firm

     F-2   

Consolidated Balance Sheets as of December  31, 2014 (Successor) and 2015 (Successor)

     F-3   

Consolidated Statements of Operations and Comprehensive Income (Loss) for the period from January 1, 2014 through January 31, 2014 (Predecessor), the period from February 1, 2014 through December 31, 2014 (Successor) and the year ended December 31, 2015 (Successor)

     F-4   

Consolidated Statements of Preferred Stock and Stockholders’ Equity (Deficit) for the period from January 1, 2014 through January 31, 2014 (Predecessor), the period from February 1, 2014 through December 31, 2014 (Successor) and the year ended December 31, 2015 (Successor)

     F-5   

Consolidated Statements of Cash Flows for the period from January  1, 2014 through January 31, 2014 (Predecessor), the period from February 1, 2014 through December 31, 2014 (Successor) and the year ended December 31, 2015 (Successor)

     F-6   

Notes to Consolidated Financial Statements

     F-7   

Unaudited financial statements

  

Condensed Consolidated Balance Sheets as of December 31, 2015 and June 30, 2016

     F-34   

Condensed Consolidated Statements of Operations and Comprehensive Income (Loss) for the six months ended June 30, 2015 and 2016

     F-35   

Condensed Consolidated Statements of Preferred Stock and Stockholders’ Equity (Deficit) for the six months ended June 30, 2015 and 2016

     F-36   

Condensed Consolidated Statements of Cash Flows for the six months ended June 30, 2015 and 2016

     F-37   

Notes to Condensed Consolidated Financial Statements

     F-38   

 

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Board of Directors and Stockholders of

J.A. Cosmetics Holdings, Inc.

Oakland, California

We have audited the accompanying consolidated balance sheets of J.A. Cosmetics Holdings, Inc. and subsidiaries (the “Company”) as of December 31, 2015 and 2014 (Successor), and the related consolidated statements of operations and comprehensive income (loss), preferred stock and stockholders’ equity (deficit), and cash flows for the period from January 1, 2014 through January 31, 2014 (Predecessor), the period from February 1, 2014 through December 31, 2014 (Successor) and the year ended December 31, 2015. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, such consolidated financial statements present fairly, in all material respects, the financial position of J.A. Cosmetics Holdings, Inc. and subsidiaries as of December 31, 2015 and 2014 (Successor), and the results of their operations and their cash flows for the period from January 1, 2014 through January 31, 2014 (Predecessor), the period from February 1, 2014 through December 31, 2014 (Successor) and the year ended December 31, 2015, in conformity with accounting principles generally accepted in the United States of America.

/s/ Deloitte & Touche LLP

San Francisco, California

April 28, 2016

 

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J.A. Cosmetics Holdings, Inc. and subsidiaries

Consolidated balance sheets

(in thousands, except share and per share data)

 

      Successor  
     As of December 31,  
      2014     2015  

Assets

    

Current assets:

    

Cash and cash equivalents

   $ 4,668      $ 14,004   

Accounts receivable, net

     26,946        22,475   

Inventory

     29,114        31,261   

Prepaid expenses and other current assets

     2,711        2,978   
  

 

 

 

Total current assets

     63,439        70,718   

Property and equipment, net

     2,125        9,854   

Intangible assets, net

     129,428        121,282   

Goodwill

     157,264        157,264   

Deferred tax assets

     240        262   

Other assets

     1,682        1,692   
  

 

 

 

Total assets

   $ 354,178      $ 361,072   
  

 

 

 

Liabilities, convertible preferred stock and stockholders’ deficit

    

Current liabilities:

    

Accounts payable and accrued expenses

   $ 20,266      $ 24,827   

Due to related parties

     1,154          

Bank debt, current portion

     12,275        10,325   

Foreign currency forward contracts, current portion

     1,858        10,702   
  

 

 

 

Total current liabilities

     35,553        45,854   

Bank debt, net of current portion

     136,149        134,594   

Foreign currency forward contracts, net of current portion

     4,103          

Deferred tax liabilities

     46,037        42,126   

Other long-term liabilities

     814        1,601   
  

 

 

 

Total liabilities

     222,656        224,175   

Commitments and contingencies (Note 9)

    

Convertible preferred stock, par value of $ 0.01 per share; 200,000 shares authorized, and 135,041 shares issued and outstanding as of December 31, 2014 and 2015; liquidation preference of $ 145,328 and $ 197,295 as of December 31, 2014 and 2015, respectively

     145,328        197,295   

Stockholders’ deficit:

    

Common stock, par value of $ 0.01 per share; 5,000,000 shares authorized as of December 31, 2014 and 2015; 10,000 shares issued and outstanding as of December 31, 2014 and 12,500 shares issued and outstanding as of December 31, 2015

              

Additional paid-in capital

     5,767        6,785   

Accumulated deficit

     (19,573     (67,183
  

 

 

   

 

 

 

Total stockholders’ deficit

     (13,806     (60,398
  

 

 

   

 

 

 

Total liabilities, convertible preferred stock and stockholders’ deficit

   $ 354,178      $ 361,072   

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

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Table of Contents

J.A. Cosmetics Holdings, Inc. and subsidiaries

Consolidated statements of operations and comprehensive income (loss)

(in thousands, except share and per share data)

 

      Predecessor                   Successor  
     

Period from

January 1, 2014
through
January 31, 2014

                 

Period from

February 1, 2014
through
December 31, 2014

    Year ended
December 31, 2015
 

Net sales

   $ 9,810            $ 135,134      $ 191,413   

Cost of sales

     5,038              73,684        91,084   
  

 

 

         

 

 

 

Gross profit

     4,772              61,450        100,329   

Selling, general and administrative expenses

     3,045              56,103        74,758   
  

 

 

         

 

 

 

Operating income

     1,727              5,347        25,571   

Other income (expense), net

     36              (6,633     (4,172

Interest expense

     (128           (11,545     (12,721
  

 

 

         

 

 

 

Income (loss) before provision for income taxes

     1,635              (12,831     8,678   

(Provision) benefit for income taxes

     (542           3,545        (4,321
  

 

 

         

 

 

 

Net income (loss)

   $ 1,093            $ (9,286   $ 4,357   
  

 

 

         

 

 

 

Comprehensive income (loss)

   $ 1,093            $ (9,286   $ 4,357   
  

 

 

         

 

 

 

Net income (loss) per share—basic

   $ 1,093            $ (1,957   $ (4,304

Net income (loss) per share—diluted

   $ 1,088            $ (1,957   $ (4,304

Weighted average number of shares outstanding—basic

     1,000              10,000        11,062   

Weighted average number of shares outstanding—diluted

     1,005              10,000        11,062   

Unaudited pro forma net loss per share—basic (Note 15)

               [            

Unaudited pro forma net loss per shares—diluted (Note 15)

               [            

Unaudited pro forma weighted average number of shares outstanding—basic (Note 15)

               [            

Unaudited pro forma weighted average number of shares outstanding—diluted (Note 15)

               [            

 

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

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Table of Contents

J.A. Cosmetics Holdings, Inc. and subsidiaries

Consolidated statements of preferred stock and stockholders’ equity (deficit)

(in thousands, except share data)

 

     Preferred stock                   Common stock     Additional
paid-in
   

Retained

earnings
(accumulated

    Total
stockholders’
 
     Shares     Amount                   Shares     Amount     capital     deficit)     equity  
 

Predecessor:

                   
 

Balance as of January 1, 2014

    1,000      $              1,000      $      $ (3,928   $ 15,509      $ 11,581   

Net income

                                             1,093        1,093   
 

 

 

         

 

 

 
 

Balance as of January 31, 2014

    1,000      $              1,000      $      $ (3,928   $ 16,602      $ 12,674   

 

 

 

     Preferred stock                   Common stock    

Additional

paid-in

   

Retained

earnings

(accumulated

   

Total

stockholders’

 
     Shares     Amount                   Shares     Amount     capital     deficit)     deficit  
 

Successor:

                   

Balance as of February 1, 2014

         $                   $      $      $      $   

Net loss

                                             (9,286     (9,286

Issuance of common stock for JACUS acquisition

                        10,000               100               100   

Issuance of preferred stock

    135,041        135,041                                       

Convertible preferred stock accretion

           10,287                                   (10,287     (10,287

Compensation expense paid to seller

                                      5,380               5,380   

Stock-based compensation

                                      287               287   
 

 

 

         

 

 

 

Balance as of December 31, 2014

    135,041        145,328              10,000               5,767        (19,573     (13,806

Net income

                                             4,357        4,357   

Convertible preferred stock accretion

           51,967                                   (51,967     (51,967

Compensation expense paid to seller

                                      489               489   

Stock-based compensation

                                      503               503   

Exercise of stock options

                        2,500               25               25   
 

 

 

         

 

 

 

Balance as of December 31, 2015

    135,041      $ 197,295              12,500      $      $ 6,785      $ (67,183   $ (60,398

 

 

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

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Table of Contents

J.A. Cosmetics Holdings, Inc. and subsidiaries

Consolidated statements of cash flows

(in thousands)

 

      Predecessor                   Successor  
     

Period from

January 1, 2014
through
January 31, 2014

                  Period from
February 1, 2014
through
December 31, 2014
    Year ended
December 31, 2015
 
 

Cash flows from operating activities:

            

Net income (loss)

   $ 1,093            $ (9,286   $ 4,357   
 

Adjustments to reconcile net (loss) income to net cash provided by (used in) operating activities:

            

Depreciation of property and equipment

     30              392        2,043   

Amortization of intangible assets

     11              7,552        8,246   

Allowance for doubtful accounts

                  91        23   

Inventory reserve

                  250          

Amortization of debt issuance costs

     15              994        1,070   

Loss on disposal of property and equipment

                  71        571   

Stock-based compensation expense

                  287        503   

Compensation expense paid to seller

                  5,380        489   

Loss on foreign currency forward contracts

                  5,961        4,741   

Deferred income taxes

     1,967              (4,276     (3,933

Changes in operating assets and liabilities:

            

Accounts receivable

     5,492              (10,980     4,448   

Inventory

     (1,455           (4,752     (2,147

Prepaid expenses and other current assets

     (5           (464     953   

Other assets

     (232           (1,682     (10

Accounts payable and accrued expenses

     (6,032           1,904        3,532   

Other liabilities

     2              232        787   

Due to related parties

     22              (89     (1,154
  

 

 

         

 

 

 

Net cash provided by (used in) operating activities

     908              (8,415     24,519   
  

 

 

         

 

 

 
 

Cash flows from investing activities:

            

Acquisition, net of cash acquired

                  (237,891       

Purchase of property and equipment

     (19           (1,597     (10,142

Acquisition of intangible assets

                         (100
  

 

 

         

 

 

 

Net cash used in investing activities

     (19           (239,488     (10,242
  

 

 

         

 

 

 
 

Cash flows from financing activities:

            

Proceeds from revolving line of credit

                  15,250        27,150   

Repayment of revolving line of credit

                  (5,600     (29,100

Debt issuance costs

                  (5,251       

Deferred offering costs paid

                         (391

Proceeds from long term debt

                  145,000          

Repayment of long term debt

                  (1,969     (2,625

Cash received from issuance of preferred stock

                  105,041          

Cash received from issuance of common stock

                  100        25   
  

 

 

         

 

 

 

Net cash provided by (used in) financing activities

                  252,571        (4,941
  

 

 

         

 

 

 

Net increase in cash and cash equivalents

     889              4,668        9,336   

Cash and cash equivalents—beginning of period

     6,934                     4,668   
  

 

 

         

 

 

 

Cash and cash equivalents—end of period

   $ 7,823            $ 4,668      $ 14,004   
  

 

 

         

 

 

 
 

Supplemental disclosure of cash flow information:

            

Cash paid for interest

   $            $ 10,544      $ 11,617   

Cash paid for income taxes

   $            $ 3,948      $ 7,790   
 

Noncash investing and financing activities:

            

Property & equipment purchase not paid in cash

   $            $      $ 200   

Deferred offering costs not paid in cash

   $            $      $ 829   

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

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Table of Contents

J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

Note 1—Nature of operations

J.A. Cosmetics Holdings, Inc. and subsidiaries (the “Company,” “Successor,” “we,” “us” or “its”) was formed as a Delaware corporation on December 20, 2013. The Company is majority owned by TPG Growth II, Ltd. (“TPG”), a private equity fund. The Company and its subsidiaries conduct business under the name e.l.f. Cosmetics, and offer high-quality, prestige-inspired products for eyes, lips and face to consumers through its retail customers, e.l.f. stores and e-commerce channels.

Note 2—Summary of significant accounting policies

Basis of presentation

On January 31, 2014, the Company acquired 100% of the outstanding shares of capital stock of J.A. Cosmetics US, Inc. (“JACUS” or the “Predecessor”) and its subsidiaries, a developer and marketer of branded value-priced cosmetics, from J.A. Cosmetics Corporation, TSG5 L.P., a private equity fund, and its co-investors (together, the “Sellers”). The acquisition was accounted for as a business combination in accordance with Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) Topic 805, Business Combinations (“ASC 805”), and the resulting new basis of accounting is reflected in the Company’s consolidated financial statements for all periods beginning on or after January 31, 2014. As a result, financial information of the Predecessor and Successor periods have been prepared under two different bases of accounting and therefore are not comparable.

The accompanying consolidated financial statements of the Company include all the accounts of J.A. Cosmetics Holdings, Inc. and its subsidiaries for periods designated as “Successor” and relate to periods after the acquisition. The Company had no operations from December 20, 2013 to the date of acquisition of the Predecessor. The period from January 1, 2014 through January 31, 2014 relates to the period prior to the acquisition, includes all the accounts of JACUS and its subsidiaries, and is referred to herein as the “Predecessor 2014 Period.” The period from February 1, 2014 through December 31, 2014 and the year ended December 31, 2015 are herein referred to as the “Successor 2014 Period” and the “Successor 2015 Period,” respectively.

The consolidated financial statements have been prepared in accordance with U.S. generally accepted accounting principles (“US GAAP”) and all intercompany balances and transactions have been eliminated in consolidation.

Use of estimates

The preparation of the accompanying financial statements in conformity with US GAAP requires management to make estimates and assumptions that affect the amounts reported in the financial statements and the accompanying notes. Actual results could differ from these estimates.

Cash and cash equivalents

Cash and cash equivalents include all cash balances and highly liquid investments purchased with maturities of three months or less.

Accounts receivable

Trade receivables consist of uncollateralized, non-interest bearing customer obligations from transactions with retail customers, reduced by an allowance for doubtful accounts for estimated losses resulting from the inability of customers to make payments. The allowance is based on the evaluation and aging of past due balances, specific exposures, historical trends and economic conditions. The Company writes off accounts receivable against the allowance when a balance is determined to be uncollectible. Recoveries of receivables previously written off are recorded when received. As of December 31, 2014 and 2015, the Company recorded an allowance for doubtful accounts of $ 0.1 million and $ 40,000, respectively. The Company recorded a sales allowance of $ 2.0 million and $ 3.9 million as of December 31, 2014 and 2015, respectively, which is also presented as a reduction to accounts receivable. The Company grants credit terms in the normal course of business to its customers. Trade credit is extended based upon an evaluation of each customer’s ability to perform its payment obligations.

 

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Table of Contents

J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

Concentrations of credit risk

Financial instruments, which potentially subject the Company to concentrations of credit risk, consist principally of cash and cash equivalents, foreign currency forward contracts and trade receivables. Although the Company deposits its cash with creditworthy financial institutions, its deposits, at times, may exceed federally insured limits. To date, the Company has not experienced any losses on its cash deposits. Foreign currency forward contracts are transacted with creditworthy financial institutions, and no collateral is required. The Company performs credit evaluations of its customers, and the risk with respect to trade receivables is further mitigated by the short duration of customer payment terms and the pedigree of the customer base.

During the Predecessor 2014 Period and the Successor 2014 Period, two customers individually accounted for greater than 10% of the Company’s revenue. During the Successor 2015 Period, three customers individually accounted for greater than 10% of the Company’s revenue as disclosed below:

 

      Predecessor                   Successor  
      Period from
January 1, 2014
through
January 31, 2014
                  Period from
February 1, 2014
through
December 31, 2014
     Year ended
December 31, 2015
 

Customer A

     30%              30%         28%   

Customer B

     17%              19%         23%   

Customer C

                          10%   

 

 

Two customers individually accounted for greater than 10% of the Company’s accounts receivable at the end of the periods presented:

 

      Successor  
     As of December 31,  
      2014      2015  

Customer A

     52%         35%   

Customer B

     16%         21%   

 

 

Inventory

Inventory, consisting principally of finished goods, is stated at the lower of cost or market. Cost is principally determined by the first-in, first-out method. A provision is recorded to adjust inventory to its estimated realizable value when inventory is determined to be in excess of anticipated demand. In the Predecessor 2014 Period, the Successor 2014 Period and the Successor 2015 Period, the Company incurred insignificant inventory write-downs.

Property and equipment

Property and equipment is stated at cost and is depreciated on a straight-line basis over the estimated useful lives of the assets. Leasehold improvements are amortized on a straight-line basis over the shorter of the lease term or the useful lives of the assets. Repairs and maintenance expenditures are expensed as incurred.

Useful lives by major asset class are as follows:

 

     

Estimated

useful lives

 

Machinery, equipment and software

     3-5 years   

Leasehold improvements

     5 years   

Furniture and fixtures

     2-5 years   

Store fixtures

     2-3 years   

 

 

 

F-8


Table of Contents

J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

The Company evaluates events and changes in circumstances that could indicate carrying amounts of long-lived assets, including property and equipment, may not be recoverable. When such events or changes in circumstances occur, the Company assesses the recoverability of long-lived assets by determining whether or not the carrying value of such assets will be recovered through undiscounted future cash flows derived from their use and eventual disposition. If the sum of the undiscounted future cash flows is less than the carrying amount of an asset, the Company records an impairment loss for the amount by which the carrying amount of the assets exceeds its fair value. There was no impairment charge recorded in the Predecessor 2014 Period, the Successor 2014 Period or the Successor 2015 Period.

Goodwill and intangible assets

Goodwill represents the excess purchase price for the acquisition of JACUS over the fair value of the net assets acquired. As part of the acquisition, the Company also acquired finite-lived intangible assets (customer relationships and favorable leases) and an indefinite-lived intangible asset (trademark).

Goodwill is not amortized but rather is reviewed annually for impairment, at the reporting unit level, or when there is evidence that events or changes in circumstances indicate that the Company’s carrying amount may not be recovered. When testing goodwill for impairment, the Company first performs an assessment of qualitative factors. If qualitative factors indicate that it is more likely than not that the fair value of the relevant reporting unit is less than its carrying amount, the Company tests goodwill for impairment at the reporting unit level using a two-step approach. In step one, the Company determines if the fair value of the reporting unit exceeds the unit’s carrying value. If step one indicates that the fair value of the reporting unit is less than its carrying value, the Company performs step two, determining the fair value of goodwill and, if the carrying value of goodwill exceeds its implied fair value, an impairment charge is recorded.

Historically the Company had a single reporting unit for the purpose of performing its goodwill impairment test. During the third quarter of 2015, the Company made structural and reporting changes to its internal organization. This reorganization aligned the internal management and functional support around the Company’s primary sales channels which report into the chief operating decision maker. These changes resulted in the identification of three reporting units that met the definition in ASC 350, Intangibles—Goodwill and Other , of components of the Company’s one operating segment: (i) retail customers; (ii) e.l.f. stores; and (iii) e-commerce. In accordance with ASC 350, on October 1, 2015, the Company reallocated the goodwill to the three reporting units using a relative fair value approach. As a result of the internal reorganization, the Company also performed a goodwill impairment test both immediately before and after this change in reporting units and concluded that no impairment existed.

Indefinite-lived intangible assets are not amortized but rather are tested for impairment annually, and impairment is recognized if the carrying amount exceeds the fair value of the intangible asset. The remaining useful life of the indefinite-lived intangible asset is evaluated each reporting period, and when the useful life is no longer considered to be indefinite, the intangible asset is amortized over its remaining useful life on a straight-line basis. Amortization of intangible assets with finite useful lives is computed on a straight-line basis over periods of three to 10 years. The determination of the estimated period of benefit is dependent upon the use and underlying characteristics of the intangible asset. The Company evaluates the recoverability of its intangible assets subject to amortization when facts and circumstances indicate that the carrying value of the asset may not be recoverable. If the carrying value of an intangible asset is not recoverable, impairment loss is measured as the amount by which the carrying value exceeds its estimated fair value.

Deferred initial public offering costs

Deferred offering costs, which consist of direct incremental legal and accounting fees relating to the initial public offering (“IPO”), are capitalized. The deferred offering costs will be offset against IPO proceeds upon the consummation of the offering. In the event the offering is terminated, deferred offering costs will be expensed. As of December 31, 2015, $ 1.2 million of offering costs were deferred in other assets on the consolidated balance sheets. No deferred offering costs were capitalized as of December 31, 2014.

Debt issuance costs

Debt issuance costs were incurred for arranging the credit facilities from various financial institutions. These costs are presented within the related bank debt liability on the consolidated balance sheet and accreted over the term of the related debt using the effective interest rate method.

 

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Table of Contents

J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

Fair value of financial instruments

The carrying amounts of cash and cash equivalents, accounts receivable, and accounts payable and accrued expenses approximate their fair values due to the short-term nature of these items. The carrying amounts reported for bank debt approximate their fair values as the stated interest rates approximate market rates currently available to the Company for loans with similar terms. The foreign currency forward contracts are carried at fair value. See Note 6—Fair value of financial instruments.

Segment reporting

Operating segments are components of an enterprise for which separate financial information is available that is evaluated by the chief operating decision maker in deciding how to allocate resources and in assessing performance. Utilizing these criteria, the Company manages its business on the basis of one operating segment and one reportable segment. It is impracticable for the Company to provide revenue by product line.

During the Predecessor 2014 Period, the Successor 2014 Period and the Successor 2015 Period, net sales in the United States and outside of the United States were as follows (in thousands):

 

      Predecessor                   Successor  
      Period from
January 1, 2014
through
January 31, 2014
                  Period from
February 1, 2014
through
December 31, 2014
     Year ended
December 31, 2015
 

U.S.

   $ 9,334            $ 122,317       $ 178,817   

International

     476              12,817         12,596   
  

 

 

         

 

 

 

Total net sales

   $ 9,810            $ 135,134       $ 191,413   

 

 

As of December 31, 2014 and December 31, 2015, the Company had long-lived assets in the United States and outside of the United States as follows (in thousands):

 

      Successor  
     December 31,  
      2014      2015  

U.S.

   $ 1,813       $ 9,230   

International

     312         624   
  

 

 

 

Total long-lived assets

   $ 2,125       $ 9,854   

 

 

Revenue recognition

Revenue consists of sales of cosmetics through retail customers, e.l.f. stores and e-commerce channels. Sales are recognized when persuasive evidence of an arrangement exists, the product has shipped, title has passed, all risks and rewards of ownership have transferred, the sales price is fixed or determinable and collectability is reasonably assured. Delivery is considered to have occurred at the time the title and risk of loss passes to the customer.

For sales to retail customers, delivery is considered to have occurred at the time of shipment or the time of delivery depending upon the specific terms of the customer arrangement. For sales to e-commerce consumers, delivery is considered to have occurred at the time of delivery of merchandise to the customer.

Revenue from sales to consumers through e.l.f. stores is recognized at the time of purchase. Revenue recognized through e.l.f. store and e-commerce sales channels is recognized net of any taxes that are collected from consumers and subsequently remitted to governmental authorities, such as sales, use and value added taxes.

Provision for sales discounts, product returns, markdowns, shortages and price adjustments are recorded as revenue reductions. These revenue reductions are established by the Company based upon management’s best estimates at the time of sale. The Company regularly reviews and revises, when deemed necessary, its estimates of sales returns and other

 

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Table of Contents

J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

required reserves based primarily upon the historical rate of actual product returns and the duration of time between the original sale and return. These revenue reductions are reflected on the consolidated balance sheet as a sales allowance against accounts receivable.

A reconciliation of the beginning and ending amounts of sales allowances for the Predecessor 2014 Period, the Successor 2014 Period and the Successor 2015 Period is as follows (in thousands):

 

      Sales allowances  

Balance as of January 1, 2014 (Predecessor)

   $ 2,411   

Charges

     306   

Deductions

     (1,092
  

 

 

 

Balance as of January 31, 2014 (Predecessor)

     1,625   

Charges

     6,408   

Deductions

     (6,068
  

 

 

 

Balance as of December 31, 2014 (Successor)

     1,965   

Charges

     13,903   

Deductions

     (12,002
  

 

 

 

Balance as of December 31, 2015 (Successor)

   $ 3,866   

 

 

In the Predecessor 2014 Period, the Successor 2014 Period and the Successor 2015 period, the Company recorded $ 0.5 million, $ 4.0 million and $ 3.6 million, respectively, of reimbursed shipping expenses from customers within revenues. The shipping and handling costs associated with product distribution were $ 0.9 million, $ 8.3 million and $ 12.6 million in the Predecessor 2014 Period, the Successor 2014 Period and the Successor 2015 Period, respectively, and are included in selling, general and administrative expenses in the consolidated statements of operations.

Income taxes

Income taxes are accounted for under the asset and liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. Valuation allowances are recorded to reduce deferred tax assets when it is more likely than not that a tax benefit will not be realized.

Future income tax benefits are recognized to the extent that realization of such benefits is more likely than not. The Company recognizes interest and penalties, if any, related to unrecognized tax benefits in its income tax provision.

Deferred rent

Certain leases provide for rent abatements or scheduled increases in base rent. Rent expense is recognized on a straight-line basis over the lease term, which results in deferred rent payable being recognized on the consolidated balance sheet.

As part of its lease agreements, the Company may receive construction allowances from landlords for tenant improvements. These leasehold improvements made by the Company are capitalized and amortized over the shorter of the lease term or five years. The construction allowances are recorded as deferred rent and amortized on a straight-line basis over the lease term as a reduction of rent expense.

Foreign currency

The functional currency of the Company’s foreign subsidiaries is the U.S. dollar. Transactions denominated in currencies other than the functional currency are recorded at exchange rates in effect on the date of the transaction. At the end of each reporting period, monetary assets and liabilities are remeasured to the functional currency using exchange rates in effect at

 

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J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

the balance sheet date. Non-monetary assets and liabilities are remeasured at historical exchange rates. Transaction gains or losses that arise from exchange rate fluctuations on transactions denominated in a currency other than the functional currency are included in other income (expense), net in the statements of operations.

Derivative instruments

The Company is exposed to foreign exchange risk as it has contracts with suppliers in China for future purchases of inventories denominated in the Chinese renminbi (RMB). The Company uses derivative instruments, specifically forward contracts, to mitigate the impact of foreign currency fluctuations on a portion of its forecasted foreign currency exposures. These contracts are carried at their fair value either as an asset or liability on the consolidated balance sheet. The Company’s derivative contracts are not designated as hedge instruments, and changes in fair value of derivatives are recorded in other income (expense), net in the consolidated statements of operations. The Company does not enter into derivative contracts for speculative or trading purposes.

Stock-based compensation

Share-based compensation cost is measured at grant date, based on the fair value of the award, and is recognized on a straight-line method over the requisite service period for awards expected to vest. The Company estimates the fair value of employee stock-based payment awards subject to only a service condition on the date of grant using the Black-Scholes valuation model. The Black-Scholes model requires the use of highly subjective and complex assumptions, including the option’s expected term and the price volatility of the underlying stock. The Company estimates the fair value of employee stock-based payment awards subject to both a market condition and the occurrence of a performance condition on the date of grant using a Monte Carlo simulation model that assumes the performance criteria will be met and the target payout levels will be achieved. Forfeitures are estimated at the time of grant and revised, if necessary, in subsequent periods if actual forfeitures differ from those estimates.

The Company recognizes compensation expense for awards expected to vest with only a service condition on a straight-line basis over the requisite service period, which is generally the award’s vesting period. Vesting of these awards is accelerated for certain employees in the event of a change-in-control or an IPO. Compensation expense for employee stock-based awards whose vesting is subject to the fulfillment of both a market condition and the occurrence of a performance condition is recognized on a graded-vesting basis at the time the achievement of the performance condition becomes probable.

Advertising costs

Advertising costs, including promotions and print, are expensed as incurred or distributed. Advertising costs are included in selling, general, and administrative expenses in the accompanying consolidated financial statements of operations and amounted to approximately $ 0.2 million, $ 2.5 million and $ 3.9 million in the Predecessor 2014 Period, the Successor 2014 Period and the Successor 2015 Period, respectively.

Net income (loss) per common share

Basic net income (loss) per common share is computed using net income (loss) available to common stockholders divided by the weighted-average number of common shares outstanding during the period. Diluted net income (loss) per share reflects the dilutive effects of convertible preferred stock and stock options outstanding during the period, to the extent such securities would not be anti-dilutive, and is determined using the “if converted” method and “treasury stock” method, respectively.

 

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J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

Recent accounting pronouncements

The following table provides a brief description of recent accounting pronouncements that could have a material effect on the Company’s financial statements:

 

Standard    Description    Date of expected
adoption/adoption
   Effect on the financial
statements or other
significant matters
Standards that are not yet adopted
ASU 2014-09, Revenue from Contracts with Customers (Topic 606)    The standard will replace existing revenue recognition standards and significantly expand the disclosure requirements for revenue arrangements. It may be adopted either retrospectively or on a modified retrospective basis to new contracts and existing contracts with remaining performance obligations as of the effective date.    January 1, 2018    The Company is currently evaluating the alternative methods of adoption and the effect on its financial statements and related disclosures.
ASU 2014-12, Compensation—Stock Compensation (Topic 718): Accounting for Share-Based Payments When the Terms of an Award Provide That a Performance Target Could Be Achieved after the Requisite Service Period    The standard will require that a performance target in a share-based payment award that affects vesting and that can be achieved after the requisite service period is completed, to be accounted for as a performance condition. Compensation cost would be recognized in the period in which it becomes probable that the performance target will be achieved, and the amount of compensation cost recognized should be based on the portion of the service period fulfilled. The standard may be adopted either prospectively or retrospectively as of the effective date.    January 1, 2016    The Company is currently evaluating the effect of the standard on its financial statements and related disclosures.
ASU 2016-02, Leases (Topic 842)    The standard will require lessees to recognize a right-of-use asset and a lease liability for virtually all of their leases (other than leases that meet    January 1, 2019    The Company is currently evaluating the effect of the standard on its financial statements and related disclosures.

 

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J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

Standard    Description    Date of expected
adoption/adoption
   Effect on the financial
statements or other
significant matters
   the definition of a short-term lease). The liability will be equal to the present value of lease payments. The asset will be based on the liability, subject to adjustment, such as for initial direct costs. Lessor accounting is similar to the current model, but updated to align with certain changes to the lessee model (e.g., certain definitions, such as initial direct costs, have been updated) and the new revenue recognition standard.      
Standards that were adopted         
ASU No. 2015-03, Interest-Imputation of Interest (Subtopic 835-30): Simplifying the Presentation of Debt Issuance Costs    The standard requires debt issuance costs related to a recognized debt liability to be presented in the balance sheet as a direct deduction from the corresponding debt liability rather than as an asset.    December 31, 2014    The Company early adopted this ASU in connection with its annual reporting period ended December 31, 2014. This resulted in the reclassification of $ 4.3 million of debt issue costs, which had been previously reported within other assets, to offset the bank debt balance on the balance sheet.
ASU 2015-17, Income Taxes—Balance Sheet Classification of Deferred Taxes    The standard requires all deferred tax liabilities and assets to be presented in the balance sheet as noncurrent.    December 31, 2014    The Company early adopted this ASU in connection with its annual reporting period ended December 31, 2014. In light of the process simplification provided by this ASU, this resulted in the reclassification of $ 2.3 million of current deferred tax assets from current assets to long-term assets.

 

Note 3—Acquisition of JACUS and subsidiaries

On January 31, 2014 (the “Acquisition Date”), the Company acquired 100% of the outstanding shares of capital stock of JACUS, a developer and marketer of branded value-priced cosmetics, from the Sellers.

 

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J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

JACUS serves as the operating entity of the Company and was incorporated in the State of Delaware in November 2010. Wholesale operations of JACUS consist of sales to retailers in the United States and international distributors in various countries including Australia, Canada and France. JACUS has a warehouse distribution center in New Jersey. Products are also sold directly to consumers through e.l.f. stores located in the New York metro area and online operations. JACUS’s products are developed and marketed under the e.l.f. Cosmetics brand name.

The total purchase price was $ 271.0 million consisting of $ 239.1 million in cash ( $ 237.9 million net of cash acquired), the issuance of 29,978 shares of the Company’s convertible preferred stock and 2,220 shares of its common stock with an aggregate fair value of $ 30.0 million, and contingent consideration of $ 1.9 million related to certain pre-acquisition tax benefits payable to the Seller. As of December 31, 2015, $ 1.9 million of the tax benefit payable to the Seller remained unpaid.

To fund the cash portion of the acquisition, the Company raised, in aggregate, $ 250.0 million, of which $ 145.0 million was drawn down from two credit facilities and $ 105.0 million was contributed by TPG (through TPG Elf Holdings, LP, a wholly-owned subsidiary of TPG, and co-investors) and various other parties including certain executives of the Company and several of the credit facility lenders, in exchange for 105,063 shares of the Company’s convertible preferred stock and 7,780 shares of common stock. In connection with the arrangement of the credit facilities, the Company incurred, in aggregate, $ 5.3 million in deferred financing costs. Refer to Note 8 for further discussion of credit facilities.

Purchase price allocation

The Company has accounted for the acquisition as a business combination in accordance with ASC 805, whereby the purchase price paid to effect the acquisition was allocated to tangible assets acquired, liabilities assumed and identifiable intangible assets acquired based on their estimated fair values with the excess of the purchase consideration over the aggregate fair values recorded as goodwill. The value of goodwill was 58% of the total purchase consideration and is primarily attributable to the assembled workforce and expected future growth. The goodwill is not deductible for tax purposes.

The acquisition provided the Company with three intangible assets: (i) customer relationships with useful lives ranging from three to 10 years, (ii) favorable leases with useful lives ranging from 27 to 71 months and (iii) an indefinite-lived trademark (See Note 4—Goodwill and intangible assets). The customer relationships asset represents the value resulting from the Company’s relationships with its retail customers and e-commerce consumers. The favorable leases asset represents the value associated with the leasehold interests associated with the Company’s office and warehouse locations in New York and New Jersey. The trademark asset represents the value resulting from the popularity and recognition of the e.l.f. Cosmetics brand. The fair values of the acquired customer relationships were based on the excess earnings method and are subject to amortization on a straight-line basis over their remaining useful lives. The fair values of the acquired favorable leases were based on the difference between the actual lease rates and the-then current market rent for similar properties in those locations. The fair value of the acquired trademark was based on the relief from royalty method. In addition, the acquisition resulted in a fair market adjustment to acquired inventory of $ 1.3 million, the fair value of which was based on the expected selling price less disposal costs and a reasonable profit margin. The Company incurred $ 2.8 million in acquisition-related costs, which were expensed and included within selling, general and administrative expenses in the Successor 2014 Period.

 

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J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

The following table summarizes the consideration paid and the fair values of the assets acquired and liabilities assumed at the Acquisition Date (in thousands):

 

      Amount  

Tangible assets acquired

   $ 51,755   

Intangible asset—customer relationships retailers

     68,800   

Intangible asset—customer relationships e-commerce

     3,800   

Intangible asset—trademark

     63,800   

Intangible asset—favorable leases

     580   

Goodwill

     157,264   

Liabilities assumed

     (74,990
  

 

 

 

Fair value of total purchase consideration

   $ 271,009   

 

 

Unaudited pro forma financial information

In accordance with ASC 805, the following unaudited pro forma financial information presents the combined results of continuing operations for the year ended December 31, 2014, as if the acquisition had been completed on January 1, 2014. Unaudited pro forma financial information is not required to be presented for the year ended December 31, 2015 as the actual combined results of the acquisition are already reflected in the consolidated financial statements for this period. The unaudited pro forma results do not reflect any operating efficiencies or potential cost savings that may result from the consolidation of operations.

The unaudited pro forma financial information should not be relied upon as necessarily being indicative of the historical results that would have been obtained if the acquisition had actually occurred on that date or the results that will be obtained in the future.

 

(in thousands)    Year ended
December 31, 2014
 

Net sales

   $ 144,944   

Net loss

   $ (9,778

 

 

Note 4—Goodwill and intangible assets

Information regarding the Company’s goodwill and intangible assets as of December 31, 2014 is as follows (in thousands):

 

      Successor  
      Estimated
useful life
     Gross
carrying
amount
     Accumulated
amortization
    Net carrying
amount
 

Customer relationships—retailers

     10 years       $ 68,800       $ (6,307   $ 62,493   

Customer relationships—e-commerce

     3 years         3,800         (1,161     2,639   

Favorable leases

     Varies         580         (84     496   
     

 

 

 

Total finite-lived intangibles

        73,180         (7,552     65,628   

Trademarks

     Indefinite         63,800                63,800   

Goodwill

        157,264                157,264   
     

 

 

 

Total goodwill and other intangibles

      $ 294,244       $ (7,552   $ 286,692   

 

 

 

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J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

Information regarding the Company’s goodwill and intangible assets as of December 31, 2015 is as follows (in thousands):

 

      Successor  
      Estimated
useful life
     Gross
carrying
amount
     Accumulated
amortization
    Net carrying
amount
 

Customer relationships—retailers

     10 years       $ 68,800       $ (13,187   $ 55,613   

Customer relationships—e-commerce

     3 years         3,900         (2,436     1,464   

Favorable leases

     Varies         580         (175     405   
     

 

 

 

Total finite-lived intangibles

        73,280         (15,798     57,482   

Trademarks

     Indefinite         63,800                63,800   

Goodwill

        157,264                157,264   
     

 

 

 

Total goodwill and other intangibles

      $ 294,344       $ (15,798   $ 278,546   

 

 

The Company did not recognize any impairment charges during the Successor 2014 Period or the Successor 2015 Period. Amortization expense on the finite-lived intangible assets amounted to $ 11,000, $ 7.6 million and $ 8.2 million in the Predecessor 2014 Period, the Successor 2014 Period and Successor 2015 Period, respectively.

As a result of the acquisition, the $ 0.7 million carrying value of the Predecessor’s goodwill as of January 31, 2014, was eliminated and new goodwill was recorded by the Successor on February 1, 2014. In addition, the Predecessor’s $ 0.6 million in historical finite-lived intangible assets was stepped-up to fair value at the time of the acquisition by the Successor. The Predecessor did not recognize any impairment charges during the Predecessor 2014 Period.

The estimated future amortization expense related to the finite-lived intangible assets, assuming no impairment as of December 31, 2015, is as follows (in thousands):

 

Year ending December 31,    Amortization  

2016

   $ 8,279   

2017

     7,121   

2018

     7,007   

2019

     6,982   

2020

     6,880   

Thereafter

     21,213   
  

 

 

 

Total

   $ 57,482   

 

 

Note 5—Property and equipment

Property and equipment as of December 31, 2014 and 2015 consists of the following (in thousands):

 

      Successor  
     December 31,  
      2014     2015  

Machinery, equipment and software

   $ 924      $ 1,322   

Leasehold improvements

     1,023        1,880   

Furniture and fixtures

     417        625   

Store fixtures

     136        8,147   
  

 

 

 

Property and equipment, gross

     2,500        11,974   

Less: accumulated depreciation and amortization

     (375     (2,120
  

 

 

 

Property and equipment, net

   $ 2,125      $ 9,854   

 

 

 

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Notes to consolidated financial statements

 

Depreciation and amortization expense on property and equipment were $ 30,000, $ 0.4 million and $ 2.0 million in the Predecessor 2014 Period, the Successor 2014 Period and the Successor 2015 Period, respectively. Included in depreciation and amortization of property and equipment is amortization expense for store fixtures which were $ 0, $ 3,000 and $ 1.3 million for the Predecessor 2014 Period, the Successor 2014 Period and the Successor 2015 Period, respectively. There were no store fixtures during the Predecessor 2014 Period.

Note 6—Fair value of financial instruments

The fair value of foreign currency forward contracts and bank debt are categorized based upon the level of judgment associated with the inputs used to measure their fair values. Fair value is measured using inputs from the three levels of the fair value hierarchy, which are described as follows:

Level 1 —Quoted prices in active markets for identical assets or liabilities

Level 2 —Quoted prices for similar assets and liabilities in active markets or inputs that are observable

Level 3 —Inputs that are unobservable (for example, cash flow modeling inputs based on management’s assumptions)

The assets’ or liabilities’ fair value measurement level within the fair value hierarchy is based on the lowest level of any input that is significant to the fair value measurement. The Company’s Level 2 instruments consist of foreign currency forward contracts for which fair values were based on market prices obtained from independent brokers or determined using quantitative models that use as their basis readily observable market parameters that are actively quoted and can be validated through external sources, including third-party pricing services, brokers and market transactions.

The following table sets forth the fair value of the Company’s foreign currency forward contracts and bank debt by level within the fair value hierarchy (in thousands):

 

      Successor  
      December 31, 2014  
      Fair value      Level 1      Level 2      Level 3  

Financial liabilities:

           

Foreign currency forward contracts(1)

   $ 5,961       $       $ 5,961       $   

Bank debt(2)

     152,681                 152,681           
  

 

 

 

Total financial liabilities

   $ 158,642       $       $ 158,642       $   

 

 

 

(1)   Of this amount, $ 1,858 is classified as current.

 

(2)   Of this amount, $ 12,275 is classified as current. The gross carrying amounts of the Company’s bank debt, before reduction of the debt issuance costs, approximate their fair values as the stated rates approximate market rates for loans with similar terms.

 

      Successor  
      December 31, 2015  
      Fair value      Level 1      Level 2      Level 3  

Financial liabilities:

           

Foreign currency forward contracts(1)

   $ 10,702       $       $ 10,702       $   

Bank debt(2)

     148,106                 148,106           
  

 

 

    

 

 

    

 

 

    

 

 

 

Total financial liabilities

   $ 158,808       $       $ 158,808       $   

 

 

 

(1)   Of this amount, $ 10,702 is classified as current.

 

(2)   Of this amount, $ 10,325 is classified as current. The gross carrying amounts of the Company’s bank debt, before reduction of the debt issuance costs, approximate their fair values as the stated rates approximate market rates for loans with similar terms.

 

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Notes to consolidated financial statements

 

The Company did not transfer any assets measured at fair value on a recurring basis to or from Level 2 for any of the periods presented.

Note 7—Derivatives

The Company generally uses forward contracts to economically hedge the impact of the variability in exchange rates on contracts with its suppliers in China for future purchases of inventories denominated in RMB. The Company does not designate any of the forward contracts as hedges and does not apply hedge accounting. All forward contracts are recorded at fair value on the consolidated balance sheet. In the Predecessor 2014 Period, the Successor 2014 Period and the Successor 2015 Period, realized and unrealized losses of $ 0.1 million, $ 6.9 million and $ 7.9 million, respectively, from the Company’s forward contracts were recognized in other income (expense), net in the consolidated statements of operations and comprehensive income (loss).

The Company generally does not hedge the net assets of its international subsidiaries.

As of December 31, 2014 and December 31, 2015, the aggregate notional amount of the Company’s outstanding forward contracts was as follows (in thousands):

 

      Successor  
      Notional  
Derivatives not designated as hedging instruments    December 31, 2014      December 31, 2015  

Foreign currency contracts

   $ 240,500       $ 148,978   

 

 

The Company’s derivative transactions are governed by ISDA Master Agreements, which include provisions governing the setoff of assets and liabilities between the parties. When the Company has more than one outstanding derivative transaction with a single counterparty, the setoff provisions contained within these agreements generally allow the non-defaulting party the right to reduce its liability to the defaulting party by amounts eligible for setoff as well as eligible offsetting transactions with that counterparty, irrespective of the currency, place of payment or booking office. The Company’s policy is to present its derivative assets and derivative liabilities on the consolidated balance sheets on a net basis.

 

      Successor  

As of December 31, 2014

(in thousands)

  

Net amount
recognized
in the
consolidated

balance
sheet

     Gross
amounts
offset in the
consolidated
balance
sheets
     Gross amount  

Liabilities:

        

Foreign currency contracts

   $ 5,961       $       $ 5,961   
  

 

 

 

Total liabilities

   $ 5,961       $       $ 5,961   

 

 

 

      Successor  

As of December 31, 2015

(in thousands)

  

Net amount
recognized
in the
consolidated

balance
sheet

     Gross
amounts
offset in the
consolidated
balance
sheets
     Gross amount  

Liabilities:

        

Foreign currency contracts

   $ 10,702       $       $ 10,702   
  

 

 

 

Total liabilities

   $ 10,702       $       $ 10,702   

 

 

 

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Notes to consolidated financial statements

 

Note 8—Debt

The Company’s outstanding debt as of December 31, 2014 and 2015 consists of the following (in thousands):

 

      Successor  
     December 31,  
      2014     2015  

Debt:

    

Revolving credit facility

   $ 9,650      $ 7,700   

Term loan

     103,031        100,406   

Second lien term loan

     40,000        40,000   
  

 

 

 

Total debt

     152,681        148,106   

Less: debt issuance costs

     (4,257     (3,187
  

 

 

 

Total debt, net of issuance costs

     148,424        144,919   

Less: current portion of debt

     (12,275     (10,325
  

 

 

 

Long-term portion of debt

   $ 136,149      $ 134,594   

 

 

Senior secured credit facility

In conjunction with the Company’s acquisition of JACUS on January 31, 2014, as discussed in Note 3, the Company entered into a 5 year, $ 125.0 million senior secured credit facility with a syndicate consisting of several large financial institutions. The facility consists of a $ 20.0 million revolving line of credit (the “Revolving Credit Facility”) and a $ 105.0 million term loan (the “Term Loan”).

The key terms of the Revolving Credit Facility and Term Loan were as follows:

All amounts under the Revolving Credit Facility are available for draw until the maturity date on January 31, 2019. The Revolving Credit Facility is collateralized by substantially all of the Company’s assets and has a commitment fee of 0.5% of unused balance, payable quarterly in arrears. The Revolving Credit Facility also provides for sub-facilities in the form of a $ 5.0 million letter of credit and a $ 2.0 million swing line loan; however, all amounts under the Revolving Credit Facility cannot exceed $ 20.0 million. The unused balance of the Revolving Credit Facility as of December 31, 2015 was $ 12.3 million.

The Term Loan will mature on January 31, 2019, and is collateralized by substantially all of the Company’s assets. The Term Loan will be repaid in quarterly installments equal to 2.5% per year of the original principal with the remaining Term Loan balance due upon the maturity date. The Term Loan can be prepaid at any time without penalty and is subject to mandatory prepayments when there is (i) excess cash flow, (ii) asset dispositions that, individually, result in net proceeds in excess of $ 1.0 million, or, in aggregate, in excess of $ 2.0 million during a year, or (iii) issuance of additional debt. The Term Loan requires an annual administrative fee of $ 50,000.

Aggregate future minimum principal payments on the Term Loan are as follows (in thousands):

 

   

Year ending December 31,

  

2016

   $ 2,625   

2017

     2,625   

2018

     2,625   

2019

     92,531   
  

 

 

 

Total

   $ 100,406   

 

 

 

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Notes to consolidated financial statements

 

Both the Revolving Credit Facility and the Term Loan carry interest, at the Company’s option, at (i) a rate per annum equal to the greater of Adjusted LIBOR (subject to a minimum floor of 1.25%) plus an applicable margin or (ii) a floating base rate plus an applicable margin. The interest rate on both the Revolving Credit Facility and the Term Loan was 6.25% per annum as of December 31, 2014 and 2015.

The Company incurred costs directly related to the senior secured credit facility of $ 4.2 million, consisting primarily of underwriting fees of $ 2.5 million, an upfront fee of $ 1.3 million and legal fees of $ 0.4 million, which were recorded as a reduction of the carrying amount of the debt and are being amortized over the term of the senior secured credit facility.

The Company is also subject to certain reporting and financial covenants to remain in good standing under the senior secured credit facility. As of December 31, 2014 and 2015, the Company was in compliance with all financial covenants.

Second lien term loan

In conjunction with the above credit facility, the Company entered into a $ 40.0 million subordinated second lien term loan (the “Second Lien Term Loan”) also on January 31, 2014. The Second Lien Term Loan does not require any principal payments until maturity on July 31, 2019. The Second Lien Term Loan is secured by substantially all of the Company’s assets but subordinated to the senior security credit facility. The Second Lien Term Loan requires prepayment penalties if prepaid prior to the maturity date, and not in conjunction with a change-in-control of the Company, in the amount of 4% of amounts prepaid in year one, 2% in year two and 1% in year three, and requires prepayment penalties of 1% if prepaid on or prior to the end of year three in conjunction with a change-in-control. The Second Lien Term Loan carries interest equal to Adjusted LIBOR plus 10.0% per annum, with Adjusted LIBOR equal to the higher of (i) LIBOR for U.S. dollars, adjusted for customary Eurodollar reserve requirements, if any, and (ii) 1.0%. As of December 31, 2014 and 2015, the Second Lien Term Loan carried interest at a rate of 11% per annum.

The Company incurred costs directly related to the second lien term loan of $ 1.1 million, consisting primarily of an upfront fee of $ 0.8 million and legal fees of $ 0.3 million, which were recorded as a reduction of the carrying amount of the debt and are being amortized over the term of the second lien term loan.

The Company recognized, in aggregate, interest expense of $ 1.0 million and $ 1.1 million related to the accretion of financing costs during the Successor 2014 Period and the Successor 2015 Period, respectively, and the remaining balance of the unamortized financing costs was $ 4.3 million and $ 3.2 million as of December 31, 2014 and 2015, respectively.

The Predecessor recognized, in aggregate, interest expense of $ 0.1 million on the outstanding balance under its term loan during the Predecessor 2014 Period. The outstanding balance under this term loan was $ 29.8 million as of January 31, 2014, and was repaid by the Company at the time of the acquisition.

Note 9—Commitments and contingencies

Operating leases

The Company leases office, retail and warehouse space in New York, New Jersey, California and China from third parties under non-cancelable operating leases that provide for minimum base annual rental payments (excluding taxes and other charges). The leases expire between 2016 and 2025. Total rent expense was $ 0.1 million, $ 1.9 million and $ 3.0 million for the Predecessor 2014 Period, the Successor 2014 Period and the Successor 2015 Period, respectively.

JACUS subleases a small portion of a facility at Saddle Brook, New Jersey to a relative of a former executive officer of the Company, through 2016 with yearly rental commitments under this sublease in the range of $ 60,000 to $ 65,000.

 

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J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

Future minimum lease payments under the operating leases are as follows (in thousands):

 

   

Year ending December 31,

  

2016

   $ 2,564   

2017

     2,862   

2018

     2,743   

2019

     2,595   

2020

     2,087   

Thereafter

     2,035   
  

 

 

 

Total

   $ 14,886   

 

 

Litigation

From time to time, the Company may become involved in legal proceedings, claims, and litigation arising in the ordinary course of business. Management is not currently aware of any matters that it expects will have a material adverse effect on the Company’s consolidated financial position, results of operations or cash flows.

Note 10—Income taxes

The following table presents the components of income (loss) before income taxes for the Predecessor 2014 Period, Successor 2014 Period and the Successor 2015 Period (in thousands):

 

      Predecessor                   Successor  
      Period from
January 1, 2014
through
January 31, 2014
                  Period from
February 1, 2014
through
December 31, 2014
    Year ended
December 31, 2015
 

Domestic

   $ 1,709            $ (13,517   $ 8,053   

Foreign

     (74           686        625   
  

 

 

         

 

 

   

 

 

 

Total

   $ 1,635            $ (12,831   $ 8,678   

 

 

 

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Table of Contents

J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

The components of the provision for income taxes Predecessor 2014 Period, Successor 2014 Period and Successor 2015 Period were as follows (in thousands):

 

      Predecessor                    Successor  
      Period from
January 1, 2014
through
January 31, 2014
                   Period from
February 1, 2014
through
December 31, 2014
    Year ended
December 31, 2015
 
 

Current:

             

U.S. Federal

   $ 1,394             $ (363   $ (6,837

State

     (5            (111     (1,026

Foreign

     18               (257     (391
  

 

 

          

 

 

 

Total current

     1,407               (731     (8,254
 

Deferred:

             

U.S. Federal

     (1,881            3,881        3,710   

State

     (68            324        201   

Foreign

                   71        22   
  

 

 

          

 

 

 

Total deferred

     (1,949            4,276        3,933   
  

 

 

          

 

 

 

Total (provision) benefit for income taxes

   $ (542          $ 3,545      $ (4,321

 

 

The reconciliation of the federal income tax to the Company’s provision for income taxes is as follows (in thousands):

 

      Predecessor                   Successor  
      Period from
January 1, 2014
through
January 31, 2014
                  Period from
February 1, 2014
through
December 31, 2014
    Year ended
December 31, 2015
 

Expected provision at statutory federal rate

   $ (556         $ 4,363      $ (3,037

State tax—net of federal benefit

     (28           223        (215

Impact of foreign operations

     (7           126        13   

U.S. subpart F income

                  (281     (218

Nondeductible transaction-related costs

                  (832       

Uncertain tax positions

                  (25     (460

Others

     49              (29     (404
  

 

 

         

 

 

 

Total (provision) benefit for income taxes

   $ (542           3,545        (4,321

 

 

 

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J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

The following tables present the significant components of the Company’s deferred tax assets and liabilities as of December 31, 2014 and 2015 (in thousands):

 

      Successor  
     December 31,  
      2014      2015  

Deferred tax assets:

     

Compensation

   $ 1,986       $ 1,969   

Inventories

     1,014         1,604   

Accrued expenses

     175         2,120   

Stock compensation

     106         238   

Net operating losses

     32           

Other

     148         446   
  

 

 

 

Deferred tax assets

     3,461         6,377   

Deferred tax liabilities:

     

Goodwill

     771         1,614   

Fixed assets

     491         1,620   

Intangible assets

     47,479         44,493   

Other

     517         514   
  

 

 

 

Deferred tax liabilities

     49,258         48,241   
  

 

 

 

Net deferred tax liabilities

   $ 45,797       $ 41,864   

 

 

The deferred tax assets and liabilities within the same jurisdiction are reported net in the accompanying balance sheets as follows (in thousands):

 

      Successor  
     December 31,  
      2014      2015  

Noncurrent deferred tax assets

   $ 240       $ 262   

Noncurrent deferred tax liabilities

     46,037         42,126   
  

 

 

 

Net deferred tax liability

   $ 45,797       $ 41,864   

 

 

The Company had $ 0.6 million of state net operating carryforwards as of December 31, 2014 and had no state net operating carryforwards as of December 31, 2015.

 

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J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

A reconciliation of the beginning and ending amount of unrecognized tax benefits is as follows (in thousands):

 

      Unrecognized
tax benefits
 

Gross UTB’s as of December 31, 2013 (Predecessor)

   $ 581   

Additions for tax positions taken in a prior year

       

Additions for tax positions taken in the current year

       

Reductions for tax positions taken in the prior year due to settlement

       

Reductions for tax positions taken in the prior year due to statutes lapsing

       
  

 

 

 

Gross UTB’s as of January 31, 2014 (Predecessor)

     581   

Additions for tax positions taken in a prior year

       

Additions for tax positions taken in the current year

     26   

Reductions for tax positions taken in the prior year due to settlement

       

Reductions for tax positions taken in the prior year due to statuses lapsing

       
  

 

 

 

Gross UTB’s as of December 31, 2014 (Successor)

     607   

Additions for tax positions taken in a prior year

     1   

Additions for tax positions taken in the current year

     648   

Reductions for tax positions taken in the prior year due to settlement

       

Reductions for tax positions taken in the prior year due to statuses lapsing

       
  

 

 

 

Gross UTB’s as of December 31, 2015 (Successor)

   $ 1,256   

 

 

If all of the Company’s unrecognized tax benefits as of December 31, 2014 and December 31, 2015 were recognized, $ 0.6 million and $ 1.0 million of unrecognized tax benefits, respectively, would affect the effective tax rate. The Company does not expect any significant changes to the amount of unrecognized tax benefits in the next twelve months.

In connection with the adoption of the above provisions, the Company recognizes interest and penalties accrued related to unrecognized tax benefits in the provision for income taxes. The Company had $ 0 and $ 31,000 of accrued gross interest and penalties as of December 31, 2014 and December 31, 2015, respectively. The Company recognized net interest expense of $ 20,000 for the Successor 2015 Period. The Company did not recognize any net interest expense during the Predecessor 2014 Period and the Successor 2014 Period.

The Company files income tax returns in the U.S. federal jurisdiction and various state and foreign jurisdictions. As of December 31, 2015, with few exceptions, the Company or its subsidiaries are no longer subject to examination prior to tax year 2012. Certain state returns are currently under audit by the state tax authorities. The Company does not expect the results of these audits to have a material impact on the consolidated financial statements.

Note 11—Convertible preferred stock

The Company has authorized 200,000 shares of convertible preferred stock for issuance with a par value of $ 0.01 per share. In conjunction with the acquisition of the Predecessor, 135,041 shares of convertible preferred stock were issued for a total consideration of approximately $ 135.0 million. At December 31, 2014 and 2015, 135,041 shares of convertible preferred stock were issued and outstanding.

The Company’s convertible preferred stock has been classified as temporary equity in the accompanying consolidated balance sheets in accordance with ASC 480, Distinguishing Liabilities from Equity , as the convertible preferred stock is redeemable at the option of the holder and is also redeemable, if not converted to common stock, at the time of an IPO. In conjunction with this classification, the Company has accreted the carrying value of the convertible preferred stock to reflect its maximum redemption amount as of December 31, 2014 and 2015, respectively. The maximum redemption amount is the

 

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Table of Contents

J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

greater of the convertible preferred stock liquidation value (including dividends) or the as-converted value based on the per share common stock price. The Company accounts for the accretion of convertible preferred stock as a reduction from amounts available for distribution to common stockholders.

The holders of the convertible preferred stock have the following rights, preferences and privileges:

Voting

The holders of the convertible preferred stock are entitled to the number of votes equal to the number of shares of common stock into which such convertible preferred stock is convertible.

Conversion rights

Holders of preferred stock may convert all or any portion of the convertible preferred stock into common stock at any time. The number of shares of common stock to be issued upon conversion of the convertible preferred stock will be determined by multiplying the number of shares of convertible preferred stock to be converted by $ 1,000 and dividing the result by the conversion price then in effect at that time, but is subject to downward revision if the Company subsequently issues dilutive securities at a lower than market price. As of December 31, 2014 and 2015, the conversion price was equal to $ 10, but is subject to adjustment upon any standard stock-splits, stock dividends or recapitalization of the Company.

Dividend rights

Holders of the convertible preferred stock are entitled to receive cumulative dividends at the rate of 8% per annum of $ 1,000 plus all accumulated and unpaid dividends, if and when declared by the board of directors.

Liquidation preferences

Upon any liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary, holders of the convertible preferred stock are entitled to be paid the greater of (i) the liquidation value plus all accrued and unpaid dividends (the “liquidation value”) or (ii) the amount to which the holder would be entitled to receive upon liquidation or winding-up of the Company, if all shares of convertible preferred stock converted to common stock (the “conversion value”). For the Successor 2014 Period, the Company accreted $ 10.3 million, which represents dividends at the rate of 8% per annum. For the Successor 2015 Period, the Company accreted $ 52.0 million, which represents the conversion value.

Redemption rights

The Company may redeem, at any time prior to the potential IPO, any portion of the convertible preferred stock then outstanding provided no redemption may be made for less than $ 25.0 million, and shall redeem all outstanding convertible preferred stock on occurrence of the Company’s potential IPO. Upon redemption, the Company shall pay the greater of (i) the liquidation value or ii) the conversion value.

Note 12—Stock-based compensation

The Company grants stock-based awards under its 2014 Equity Incentive Plan (the Plan). The Plan permits the grant of incentive stock options, non-statutory stock options, restricted stock and other stock- or cash-based awards to employees, officers, directors, advisors and consultants. The Plan allows for option grants of the Company’s common stock based on time, performance and market conditions. There were a total of 2,960,894 shares and 3,427,748 shares reserved for grant under the Plan as of December 31, 2014 and 2015, respectively. 578,099 shares and 220,036 shares remained available for future issuance under the Plan as of December 31, 2014 and 2015, respectively.

 

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Table of Contents

J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

Service-based options

A summary of the Company’s stock option activity and related information is as follows:

 

      Options outstanding  
      Shares
subject to
options
outstanding
    Weighted-
average
exercise
price
     Weighted-
average
remaining
contractual
life (years)
    

Aggregate
intrinsic
values

(in thousands)

 

Balance as of January 31, 2014

                              

Granted

     1,094,004      $ 10.00         9.2       $   

Exercised

                              

Forfeited

                              
  

 

 

         

Balance as of December 31, 2014

     1,094,004        10.00         9.2           

Granted

     540,367        10.23         9.6           

Exercised

     (2,500     10.00                 12   

Forfeited

     (183,500     10.00                   
  

 

 

         

Balance as of December 31, 2015

     1,448,371        10.09         8.7         6,550   
  

 

 

         

Vested and expected to vest(1) as of December 31, 2015

     1,243,878      $ 10.08         8.7       $ 5,636   
  

 

 

         

Exercisable as of December 31, 2015

     239,400      $ 10.00         8.3       $ 1,104   

 

 

 

(1)   The number of shares subject to options expected to vest takes into account an estimate of expected forfeitures.

The weighted-average grant date fair value of stock options granted during the Successor 2014 Period and Successor 2015 Period was $ 1.66 and $ 2.73 per share, respectively.

There was no stock-based compensation expense recognized in the Predecessor 2014 Period. Stock-based compensation cost recorded in the Successor 2014 Period and in the Successor 2015 Period was $ 0.3 million and $ 0.5 million, respectively.

As of December 31, 2015, there was $ 1.9 million of total unrecognized compensation cost related to non-vested share-based compensation, which is expected to be recognized over the remaining weighted-average vesting period of 3.8 years.

The intrinsic value of options vested and expected to vest and become exercisable is calculated based on the difference between the exercise price and the fair value of the Company’s common stock as of December 31, 2014 and 2015.

During 2014, the Company estimated the grant date fair value of stock options granted pursuant to the Plan by first computing the fair value using a Black-Scholes option-pricing model under three potential liquidity scenarios and then applying a probability weighting of each scenario. The estimated grant date fair value includes the following weighted-average assumptions as of December 31, 2014 and 2015, with each assumption reflecting the weighting that was assigned to each scenario:

 

      Successor  
     December 31,  
      2014      2015  

Estimated fair values of common stock

   $ 6.42       $ 14.61   

Expected term (in years)

     4.7         4.1   

Expected volatility

     45.00%         40.92%   

Risk-free interest rate

     1.34%         1.51%   

Expected dividend yield

     0%         0%   

 

 

 

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Table of Contents

J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

The determination of the fair value of stock options on the date of grant using a Black-Scholes option-pricing model is affected by the estimated fair value of the underlying common stock, as well as assumptions regarding a number of variables that are complex, subjective and generally require significant judgment. The assumptions used in the Black-Scholes option-pricing model to calculate the fair value of stock options were:

Fair value of common stock

The fair value of shares of common stock underlying the stock options has historically been the responsibility of and determined by the Company’s board of directors, with input from management. Because there is no public market for the Company’s common stock the board of directors determined the fair value of common stock at the time of grant of the option by considering a number of objective and subjective factors including independent third-party valuations of the Company’s common stock, operating and financial performance, the lack of liquidity of capital stock and general and industry specific economic outlook, among other factors.

Expected term

The expected term of the options represents the period of time that the options are expected to be outstanding. Options granted have a maximum contractual life of 10 years. The Company estimated the expected term of the option based on the estimated timing of potential liquidity events.

Expected volatility

As the Company does not have a trading history for its common stock, the expected stock price volatility for the common stock was estimated by taking the average historic price volatility for industry peers based on daily price observations over a period equivalent to the expected term of the stock option grants. Industry peers consist of several public companies within the same industry, which are of similar size, complexity and stage of development. The Company intends to continue to consistently apply this process using the same or similar public companies until a sufficient amount of historical information regarding the volatility of its own share price becomes available, or unless circumstances change such that the identified companies are no longer similar to the Company, in which case, more suitable companies whose share prices are publicly available would be used in the calculation.

Risk-free interest rate

The risk-free interest rate was based on the U.S. Treasury rate, with maturities similar to the expected term of the options.

Expected dividend yield

The Company does not anticipate paying any dividends in the foreseeable future. As such, the Company uses an expected dividend yield of zero.

In addition to the Black-Scholes assumptions discussed immediately above, the forfeiture rate of stock options is estimated at the time of grant and revised in subsequent periods if actual forfeitures differ from those estimates. The Company records stock-based compensation expense only for those awards that are expected to vest.

 

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J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

Performance-based options

 

      Options outstanding  
      Shares
subject to
options
outstanding
    Weighted-
average
exercise
price
     Weighted-
average
remaining
contractual
life (years)
    

Aggregate
intrinsic
values

(in thousands)

 

Balance as of January 31, 2014

                              

Granted

     1,288,791      $ 10.00         9.2       $   

Exercised

                              

Forfeited

                              
  

 

 

 

Balance as of December 31, 2014

     1,288,791        10.00         9.2           

Granted

     537,000        10.12         9.6           

Exercised

                              

Forfeited

     (68,950     10.00                   
  

 

 

 

Balance as of December 31, 2015

     1,756,841      $ 10.04         8.6       $ 8,036   

 

 

For the Company’s performance-based options, in addition to the service condition, the ultimate number of shares to be earned depends on the achievement of both a performance and market condition. The performance condition is based on the occurrence of a liquidity event (e.g., initial public offering or change-in-control transaction). The market condition is based upon the achievement of a minimum rate of return from the liquidity event. In regards to the performance condition, awards granted prior to August 2015 generally provided that if the liquidity event occurs prior to January 31, 2016, the option holder is entitled to an additional number of shares assuming the minimum rate of return is achieved. No liquidity event occurred prior to January 31, 2016.

The weighted-average grant date fair value of performance-based options granted during the Successor 2014 Period and Successor 2015 Period was $ 1.10 and $ 1.37 per share, respectively.

The fair values were determined using a Monte Carlo simulation model, based on rate of return from a potential liquidity event that ranges from 3.0x to 6.5x. The rate of return is defined as the aggregate amount of distribution, dividends and sales proceeds received by equity holders, in a liquidity event, divided by the aggregate amount of original capital contribution made by these equity holders as of January 31, 2014. The model assumed a 16% chance of a change-in-control in the near term (nine months), a 24% chance of a change-in-control in the long term and a 60% chance of an initial public offering.

Because the achievement of the performance condition is not probable until a liquidity event (e.g., initial public offering or a change-in-control transaction) has occurred, no compensation expense was recognized during the Successor 2014 Period and the Successor 2015 Period, related to these performance-based options. As of December 31, 2015, there was $ 1.7 million of unrecognized stock-based compensation related to unvested performance-based awards.

Phantom shares

On November 14, 2014, the Company adopted the J.A. Cosmetics Holdings, Inc. 2014 Phantom Equity Plan (the “Phantom Plan”). The Phantom Plan authorizes the grant of up to 80,000 units of phantom equity to employees, directors and consultants of the Company and any of its subsidiaries. The phantom shares each represent a contractual right to payment of compensation in the future based on the amounts distributable to a holder of the Company’s common stock in connection with a sale of the Company (defined below), less the exercise price. The phantom shares do not represent shares of the Company’s common stock, and a recipient of phantom shares does not receive an ownership interest in the Company, stockholder voting rights or other incidents of ownership to the Company’s common stock.

 

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J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

The phantom shares vest immediately on sale of the majority of the Company’s outstanding common stock or substantially all of the Company’s assets (“sale of the Company”), and the phantom stockholder remains continuously employed by the Company from the date of grant through the date of a sale of the Company. Upon a sale of the Company, holders of a vested phantom share will receive a one-time cash payment in an amount equal to the difference between the fair market value of the amounts to be received by a holder of a share of the Company’s common stock in connection with the sale of the Company and the fair market value of a share of the Company’s common stock on the grant date, as set forth in the phantom shares award agreement. During the Successor 2014 Period and the Successor 2015 Period, the Company granted 47,500 and 22,500 phantom shares, respectively. As a cash payment is triggered only upon a sale of the Company, no compensation expense was recognized during the Successor 2014 Period and the Successor 2015 Period, related to these phantom shares. As of December 31, 2015, there was $ 0.3 million of unrecognized stock-based compensation related to the phantom shares; that cost is expected to be recognized upon sale of the Company.

Note 13—Employee benefit plan

The Company maintains a defined contribution 401(k) profit-sharing plan (the “401(k) Plan”) for eligible employees who are over the age of 21. Participants may make voluntary contributions up to the maximum amount allowable by law. The Company may make contributions to the 401(k) Plan on a discretionary basis which vest to the participants 100%. The Company elected not to make any contributions to the 401(k) Plan during the Successor 2014 Period. The Company made $ 18,000 of matching contributions to the 401(k) Plan during the Successor 2015 Period. The Predecessor elected not to make any contributions to the 401(k) Plan during the Predecessor 2014 Period.

Note 14—Related-party transactions

Successor

The Company rents office space in Shanghai, China from a lessor who is also an employee of the Company. During the Successor 2014 Period, the Company incurred $ 0.4 million in rent expense to this lessor, which is included under selling, general and administrative expenses. As of December 31, 2014, the Company had a $ 32,000 security deposit included in other current assets related to this lease. Further, as of December 31, 2014, the Company owed $ 0.8 million for consulting services to entities owned by this employee. In 2015, the employee ceased employment with the Company, and the lease was terminated; therefore these transactions were no longer disclosed as related-party transactions during the Successor 2015 Period.

Cosmopack and Promotions Plus, each a related party entity owned by a relative of a former executive officer, manage the Company’s distribution and fulfillment operations for the New Jersey warehouse and charge the Company for these services. During the Successor 2014 Period, the Company incurred $ 3.7 million for these services, which is reflected in selling, general and administrative expenses in the consolidated statement of operations. At December 31, 2014, the Company owed $ 0.3 million to these entities, and the balances have been included in due to related parties in the consolidated balance sheet. The former executive officer was an employee until December 31, 2014.

During the Successor 2014 Period and the Successor 2015 Period, the Company incurred $ 0.8 million and $ 0.9 million, respectively, in management and consulting fees to its majority stockholder, TPG. Amounts owed are included in due to related parties in the consolidated balance sheet.

Predecessor

The Predecessor rented office space in Shanghai, China from a lessor who is also an employee of JACUS. During the Predecessor 2014 Period, the Predecessor incurred $ 36,000 in rent expense to this lessor, which is included under selling, general and administrative expenses.

Cosmopack and Promotions Plus, each a related party entity owned by a relative of a former executive officer, manage JACUS’s distribution and fulfillment operations for the New Jersey warehouse and charges JACUS for these services. During the Predecessor 2014 Period, the Predecessor incurred $ 0.4 million for these services, which is reflected in selling, general

 

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J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

and administrative expenses in the consolidated statement of operations. The former executive officer was an employee until December 31, 2014.

Note 15—Net income (loss) per share

The following is a reconciliation of the numerator and denominator in the basic and diluted net income (loss) per common share computations (in thousands, except share data):

 

      Predecessor                   Successor  
      Period from
January 1,
2014
through
January 31,
2014
                  Period from
February 1,
2014 through
December 31,
2014
    Year ended
December 31,
2015
 
 

Numerator:

            

Net income (loss)

   $ 1,093            $ (9,286   $ 4,357   
 

Adjustments to numerator:

            

Convertible preferred stock—dividends

                  (10,287     (51,967
  

 

 

         

 

 

 

Net income (loss) available to common shareholders

     1,093              (19,573     (47,610
 

Denominator:

            

Weighted average number of shares outstanding—Basic

     1,000              10,000        11,062   

Weighted average number of shares outstanding—Diluted

     1,005              10,000        11,062   
 

Net income (loss) per common share:

            

Basic

   $ 1,093            $ (1,957   $ (4,304

Diluted

   $ 1,088            $ (1,957   $ (4,304
 

Anti-dilutive securities excluded from diluted EPS:

            

Service-based stock options

                  1,094,004        1,448,371   

Common shares underlying convertible preferred stock

                  13,504,123        13,504,123   
  

 

 

         

 

 

 

Total

                  14,598,127        14,952,494   

 

 

 

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Table of Contents

J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

Unaudited pro forma net income (loss) per share

The unaudited pro forma net income (loss) per share reflects the application of              shares from the proposed IPO (assuming the mid-point of the IPO price range) that are necessary to cover the $ 72 million dividend paid to stockholders on June 7, 2016, which was in excess of the Company’s historical earnings.

 

      Year ended
December 31,
2015
(unaudited)
 

Numerator:

  

Net income

  

Denominator:

  

Basic:

  

Weighted-average number of shares outstanding—Basic

     11,062   

Add: Common shares offered hereby to fund the dividend in excess of earnings

  
  

 

 

 

Pro forma weighted average number of shares outstanding—Basic

  
  

 

 

 

Diluted:

  

Pro forma weighted average number of shares outstanding—Basic

  

Weighted average effect of dilutive securities:

  
  

 

 

 

Pro forma weighted average number of shares outstanding—Diluted

  
  

 

 

 

Pro forma net income (loss) per share:

  

Basic

  

Diluted

  

Anti-dilutive securities excluded from pro forma basic EPS:

  

Common shares underlying convertible preferred stock

  

Anti-dilutive securities excluded from pro forma diluted EPS:

  

Service-based stock options

       

Total

       

 

 

Note 16—Subsequent events

Management evaluates events occurring subsequent to the date of the financial statements in determining the accounting for and disclosure of transactions and events that affect the financial statements. Subsequent events have been evaluated through April 28, 2016, which is the date that the financial statements were issued.

The Plan was amended in January 2016 to allow certain employees to exercise options prior to vesting (“early exercise”). Upon termination of employment prior to full vesting, unvested shares acquired through early exercise are forfeited and are repurchased by the Company at lower of the exercise price and fair market value. Therefore, such unvested options are treated as outstanding.

In connection with the plan amendment in January 2016, the Company also extended loans to certain key management personnel (the “Debtors’”) totaling $ 10.4 million (the “2016 Notes”). The 2016 Notes served as financing for the Debtors’ 2016 exercise of previously issued stock options. The 2016 Notes are secured by the underlying shares and are full recourse to the respective Debtor’s personal assets. The 2016 Notes carry interest at between 0.75% and 0.81% per annum, due

 

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J.A. Cosmetics Holdings, Inc. and subsidiaries

Notes to consolidated financial statements

 

semi-annually, and mature in January 2018 or earlier upon the occurrence of certain events specified in the Note agreements. Amounts due from employees in relation to the 2016 Notes will be reduced from stockholders’ equity. Cash received from Debtors for early exercise of unvested options is treated as a liability. Amounts so recorded are transferred into common stock and additional paid-in capital as the shares vest.

The Company entered into new lease agreements for e.l.f. stores with a minimum future lease commitment amount of $ 6.1 million.

The Company entered into agreements with third parties to manage distribution and fulfillment operations at its Ontario, California warehouse. In addition to reimbursing the third parties for costs incurred to perform these services, the Company is obligated to pay fixed amounts totaling $ 0.7 million towards these services over a period of 14 months.

With effect from April 26, 2016, the name of the Company was changed from J.A. Cosmetics Holdings, Inc. to e.l.f. Beauty, Inc.

 

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Table of Contents

e.l.f. Beauty, Inc. and subsidiaries

Condensed consolidated balance sheets

(unaudited)

(in thousands, except share and per share data)

 

                    Supplemental
pro forma
 
      December 31,
2015
    June 30,
2016
   

June 30,

2016(1)

 

Assets

      

Current assets:

      

Cash

   $ 14,004      $ 3,763      $ 3,763   

Accounts receivable, net

     22,475        21,611        21,611   

Inventories

     31,261        32,371        32,371   

Prepaid expenses and other current assets

     2,978        10,574        10,574   
  

 

 

 

Total current assets

     70,718        68,319        68,319   

Property and equipment, net

     9,854        14,281        14,281   

Intangible assets, net

     121,282        117,144        117,144   

Goodwill

     157,264        157,264        157,264   

Deferred tax assets

     262        262        262   

Other assets

     1,692        1,719        1,719   
  

 

 

 

Total assets

   $ 361,072      $ 358,989      $ 358,989   
  

 

 

 

Liabilities, convertible preferred stock and stockholders’ deficit

      

Current liabilities:

      

Current portion of long-term debt and capital lease obligations

   $ 10,325      $ 6,583      $ 6,583   

Accounts payable

     11,114        21,470        21,470   

Accrued expenses and other current liabilities

     13,713        15,079        15,079   

Foreign currency forward contracts

     10,702        5,417        5,417   
  

 

 

 

Total current liabilities

     45,854        48,549        48,549   

Long-term debt and capital lease obligations

     134,594        197,074        197,074   

Deferred tax liabilities

     42,126        40,215        38,700   

Other long-term liabilities

     1,601        9,551        9,551   
  

 

 

 

Total liabilities

     224,175        295,389        293,874   

Commitments and contingencies (Note 7)

      

Convertible preferred stock, par value of $ 0.01 per share; 200,000 shares authorized and 135,041 shares issued and outstanding as of June 30, 2016 and December 31, 2015; liquidation preference of $ 262,385 and $ 197,295 as of June 30, 2016 and December 31, 2015, respectively

     197,295        262,385          

Stockholders’ deficit:

      

Common stock, par value of $ 0.01 per share; 5,000,000 shares authorized as of June 30, 2016 and December 31, 2015; 1,126,256 and 12,500 shares issued and outstanding as of June 30, 2016 and December 31, 2015, respectively

            3        138   

Additional paid-in capital

     6,785        1,045        267,625   

Employee loan receivable

            (6,390     (6,390

Accumulated deficit

     (67,183     (193,443     (196,258
  

 

 

 

Total stockholders’ deficit

     (60,398     (198,785     65,115   
  

 

 

 

Total liabilities, convertible preferred stock and stockholders’ deficit

   $ 361,072      $ 358,989      $ 358,989   

 

 

 

(1)     The Supplemental Pro Forma Condensed Consolidated Balance Sheet as of June 30, 2016 reflects the conversion of all of our outstanding shares of convertible preferred stock into an aggregate of 13,504,123.5 shares of common stock immediately prior to the consummation of the initial public offering (“IPO”) and the recognition of incremental compensation expense related to the acceleration of vesting on certain time-based vesting awards and satisfaction of the performance condition on certain performance-based vesting awards (the “IPO related transactions”).

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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e.l.f. Beauty, Inc. and subsidiaries

Condensed consolidated statements of operations

(unaudited)

(in thousands, except share and per share data)

 

      Six months ended
June 30,
 
      2015     2016  

Net sales

   $ 75,194      $ 96,820   

Cost of sales

     35,896        42,383   
  

 

 

 

Gross profit

     39,298        54,437   

Selling, general, and administrative expenses

     31,168        47,804   
  

 

 

 

Operating income

     8,130        6,633   

Other income, net

     3,254        1,964   

Interest expense, net

     (6,281     (6,396
  

 

 

 

Income before provision for income taxes

     5,103        2,201   

Income tax provision

     (2,425     (1,112
  

 

 

 

Net income

   $ 2,678      $ 1,089   
  

 

 

 

Comprehensive income

   $ 2,678      $ 1,089   
  

 

 

 

Net loss per share—basic (Note 9):

   $ (320.28   $ (553.18

Net loss per share—diluted (Note 9):

   $ (320.28   $ (553.18

Weighted average number of shares outstanding—basic (Note 9):

     10,000        235,967   

Weighted average number of shares outstanding—diluted (Note 9):

     10,000        235,967   

Pro forma net loss per share—basic (Note 9):

       [        

Pro forma net loss per share—diluted (Note 9):

       [        

Pro forma weighted average number of shares outstanding—basic (Note 9):

       [        

Pro forma weighted average number of shares outstanding—diluted (Note 9):

       [        

 

 

 

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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e.l.f. Beauty, Inc. and subsidiaries

Condensed consolidated statements of preferred stock and stockholders’ equity

(unaudited)

(in thousands, except share data)

 

    

 

Preferred stock

          

 

Common stock

   

Employee

note
receivable

   

Additional

paid-in

capital

   

Retained

earnings

(accumulated

deficit)

   

Total

stockholders’

deficit

 
    Shares     Amount           Shares     Amount          
                   

Balance as of December 31, 2015

    135,041      $ 197,295            12,500      $      $      $ 6,785      $ (67,183   $ (60,398

Net income

                                                  1,089        1,089   

Convertible preferred stock accretion

           65,090                                        (65,090     (65,090

Stock-based compensation

                                           1,155               1,155   

Issuance of employee note receivable

                                    (10,448                   (10,448

Accrued interest on employee note receivable

                                    (31     31                 

Vesting of early exercised stock options

                      220,802        2               2,206               2,208   

Exercise of stock options

                      68,900        1               669               669   

Dividend paid

                                           (9,801     (62,259     (72,060

Repayment of employee note receivable

                                    4,060                      4,060   

Payment of interest on employee note receivable

                                    30                      30   
 

 

 

 

Balance as of June 30, 2016

    135,041      $ 262,385            302,202      $ 3      $ (6,390   $ 1,045      $ (193,443   $ (198,785

 

 

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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e.l.f. Beauty, Inc. and subsidiaries

Condensed consolidated statements of cash flows

(unaudited)

(in thousands)

 

      Six months ended June 30,  
                  2015                 2016  

Cash flows from operating activities:

    

Net income

   $ 2,678      $ 1,089   

Adjustments to reconcile net income to net cash provided by operating activities:

    

Depreciation of property and equipment

     478        2,092   

Amortization of intangible assets

     4,117        4,138   

Allowance for doubtful accounts

     23        17   

Amortization of debt issuance costs and discount on debt

     535        571   

Loss on disposal of property and equipment

            219   

Stock-based compensation expense

     198        1,155   

Compensation expense paid to seller

     489          

Gain on foreign currency forward contracts

     (2,814     (5,284

Deferred income taxes

     (2,127     (1,912

Changes in operating assets and liabilities:

    

Accounts receivable

     9,560        847   

Inventories

     (12,303     (1,110

Prepaid expenses and other current assets

     (1,320     (3,073

Other assets

     (85     (27

Accounts payable and accrued expenses

     6,275        7,855   

Other liabilities

     536        1,281   

Due to related parties

     (409       
  

 

 

 

Net cash provided by operating activities

     5,831        7,858   

Cash flows from investing activities:

    

Purchase of property and equipment

     (3,649     (2,910

Proceeds from sale of property and equipment

            84   

Acquisition of intangible assets

     (100       
  

 

 

 

Net cash used in investing activities

     (3,749     (2,826

Cash flows from financing activities:

    

Proceeds from revolving line of credit

     12,450        2,000   

Repayment of revolving line of credit

     (15,400     (7,700

Deferred offering costs paid

            (3,139

Proceeds from long term debt

            62,294   

Repayment of long term debt

     (1,313     (1,313

Cash received from issuance of common stock

            669   

Dividend paid

            (68,000

Other, net

            (85
  

 

 

 

Net cash used in financing activities

     (4,263     (15,274

Net decrease in cash

     (2,181     (10,242

Cash—beginning of period

     4,668        14,004   
  

 

 

 

Cash—end of period

   $ 2,487      $ 3,763   
  

 

 

 

Supplemental disclosure of cash flow information:

    

Cash paid for interest

     5,658        5,729   

Cash paid for income taxes

     5,022        4,645   

Supplemental disclosure of noncash investing and financing activities:

    

Accretion of preferred stock to maximum redemption value

     5,881        65,090   

Deferred offering costs included in accounts payable and accrued expenses

            1,383   

Property and equipment acquired under capital leases

            3,000   

Property and equipment purchases included in accounts payable and accrued expenses

     658        913   

Vesting of shares related to early exercise of common stock options

            2,208   

Note receivable issued to finance early exercise of common stock

            (10,448

Net repayment of note receivable with dividend proceeds

            4,060   

 

 

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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e.l.f. Beauty, Inc. and subsidiaries

Notes to condensed consolidated financial statements (unaudited)

Note 1—Nature of operations

e.l.f. Beauty, Inc. and subsidiaries (the “Company,” “we,” “us,” “its” and “our”) was formed as a Delaware corporation on December 20, 2013 under the name J.A. Cosmetics Holdings, Inc. In April 2016, the Company changed its name to e.l.f. Beauty, Inc. The Company and its subsidiaries conduct business under the name e.l.f. Cosmetics, and offer high-quality, prestige-inspired products for eyes, lips and face to consumers through its retail customers, e.l.f. stores and e-commerce channels.

Recapitalization

On June 7, 2016, the Company incurred an incremental $ 64 million in term loan borrowings under the Senior Secured Credit Facility to fund, in part, the payment of a $ 72 million special dividend to stockholders, and increased the total availability under the Revolving Credit Facility to $ 25 million. In connection with the incremental borrowings, certain covenants were amended to reflect the increased leverage. All common stockholders, including individuals that received shares of restricted common stock in connection with the early exercise of certain unvested stock options, received a dividend of $ 4.93 per share. The $ 4 million in dividend payments made to restricted common stockholders was immediately used by them to pay down their outstanding borrowings from the Company, pursuant to their underlying recourse note agreements. Accordingly, the net cash outflow related to the dividend was $ 68 million. See Note 8 to the Unaudited Condensed Consolidated Financial Statements included elsewhere in this prospectus for more information regarding the early exercise of unvested stock options by restricted common stockholders.

Finally, in connection with the special dividend, the Company modified all stock options outstanding and reduced the exercise price by $4.93 per share in order to protect the option holders from dilution that would have otherwise resulted from the dividend recapitalization transaction. This constituted a modification in accordance with ASC 718, Compensation—stock compensation and, accordingly, $ 0.7 million of incremental stock-based compensation expense was recorded during the three months ended June 30, 2016.

Note 2—Summary of significant accounting policies

Basis of presentation

The accompanying unaudited condensed consolidated financial statements and related notes have been prepared in accordance with U.S. generally accepted accounting principles (“US GAAP”) for interim financial information and pursuant to the rules and regulations of the Securities and Exchange Commission (the “SEC”). In the opinion of the Company, these interim financial statements contain all adjustments, consisting of only normal recurring adjustments, necessary for a fair statement of its financial position as of June 30, 2016, and its results of operations for the six months ended June 30, 2016, and cash flows for the six months ended June 30, 2016. The condensed consolidated balance sheet at December 31, 2015, was derived from audited annual financial statements, but does not contain all of the footnote disclosures from the annual financial statements. All intercompany balances and transactions have been eliminated in consolidation.

These interim condensed consolidated financial statements should be read in conjunction with the audited Consolidated Financial Statements as of and for the year ended December 31, 2015 and related notes included in this prospectus. Operating results for the interim periods are not necessarily indicative of the results that may be expected for the full year.

Use of estimates

The preparation of the accompanying financial statements in conformity with US GAAP requires management to make estimates and assumptions that affect the amounts reported in the financial statements and the accompanying notes. Actual results could differ from these estimates.

Segment reporting

Operating segments are components of an enterprise for which separate financial information is available that is evaluated by the chief operating decision maker in deciding how to allocate resources and in assessing performance. Utilizing these criteria, the Company manages its business on the basis of one operating segment and one reportable segment.

 

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e.l.f. Beauty, Inc. and subsidiaries

Notes to condensed consolidated financial statements (unaudited)

 

Significant accounting policies

The Company made no changes to the significant accounting policies that were disclosed in Note 2, “Summary of significant accounting policies,” to the audited Consolidated Financial Statements as of and for the year ended December 31, 2015 included in this prospectus. The Company has prepared the accompanying unaudited condensed consolidated financial statements on the same basis as the audited financial statements included in this prospectus.

Recent accounting pronouncements

The following table provides a brief description of recent accounting pronouncements that could have a material effect on the Company’s financial statements:

 

Standard    Description   

Date of expected

adoption/adoption

   Effect on the financial
statements or other
significant matters
Standards that are not yet adopted
ASU 2014-09, Revenue from Contracts with Customers
(Topic 606)
   The standard will replace existing revenue recognition standards and significantly expand the disclosure requirements for revenue arrangements. It may be adopted either retrospectively or on a modified retrospective basis to new contracts and existing contracts with remaining performance obligations as of the effective date.    January 1, 2018    The Company is currently evaluating the alternative methods of adoption and the effect on its financial statements and related disclosures.
ASU No. 2015-14 , Revenue from Contracts with Customers (Topic 606): Deferral of the Effective Date    In August 2015, the FASB issued ASU 2015-14, which deferred the effective date from annual periods beginning on or after December 15, 2016 to annual periods beginning on or after December 15, 2017.      

ASU 2016-08, Revenue from Contracts with Customers (Topic 606): Principal versus Agent Considerations (Reporting Revenue Gross versus Net)

 

ASU 2016-10, Revenue from Contracts with Customers

   In March, April and May 2016, the FASB issued ASU 2016-08, ASU 2016-10 and ASU 2016-12. These standards provide supplemental adoption guidance and clarification to ASU 2014-09, and must be adopted concurrently      

 

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e.l.f. Beauty, Inc. and subsidiaries

Notes to condensed consolidated financial statements (unaudited)

 

Standard    Description   

Date of expected

adoption/adoption

   Effect on the financial
statements or other
significant matters

(Topic 606): Identifying Performance Obligations and Licensing

 

ASU 2016-12, Revenue from Contracts with Customers (Topic 606): Narrow-Scope Improvements and Practical Expedients

   with the adoption of ASU 2014-09.      
ASU 2016-02, Leases (Topic 842)    The standard will require lessees to recognize a right-of-use asset and a lease liability for virtually all of their leases (other than leases that meet the definition of a short-term lease). The liability will be equal to the present value of lease payments. The asset will be based on the liability, subject to adjustment, such as for initial direct costs. Lessor accounting is similar to the current model, but updated to align with certain changes to the lessee model (e.g., certain definitions, such as initial direct costs, have been updated) and the new revenue recognition standard. It requires a modified retrospective approach for all leases existing at, or entered into after, the date of initial application.    January 1, 2019    The Company is currently evaluating the effect of the standard on its financial statements and related disclosures.
Standards that were adopted         
ASU 2014-12, Compensation—Stock Compensation (Topic 718): Accounting for Share-Based Payments When the Terms of an Award Provide That a Performance Target    The standard will require that a performance target in a share-based payment award that affects vesting and that can be achieved after the requisite service    January 1, 2016    The Company prospectively adopted this standard in the first quarter of 2016. The standard had no effect on the Company’s consolidated financial statements, as its

 

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e.l.f. Beauty, Inc. and subsidiaries

Notes to condensed consolidated financial statements (unaudited)

 

Standard    Description   

Date of expected

adoption/adoption

   Effect on the financial
statements or other
significant matters
Could Be Achieved after the Requisite Service Period    period is completed to be accounted for as a performance condition. Compensation cost would be recognized in the period in which it becomes probable that the performance target will be achieved, and the amount of compensation cost recognized should be based on the portion of the service period fulfilled. The standard may be adopted either prospectively or retrospectively as of the effective date.       historical practice complies with the new requirements.
ASU 2016-09, Improvements to Employee Share-Based Payment Accounting    The standard simplifies several aspects of the accounting for employee share-based payment transactions, including the accounting for income taxes, forfeitures, and statutory tax withholding requirements, as well as classification in the statement of cash flows.    January 1, 2016    The Company early adopted this standard in the first quarter of 2016. The amendments were applied on a modified retrospective basis except for amendments requiring recognition of excess tax benefits and deficiencies in the income statement, which was applied prospectively. The standard did not have a material effect on the Company’s consolidated financial statements.

 

Note 3—Derivative instruments

The Company generally uses forward contracts that are not designated as hedging instruments to hedge economically the impact of the variability in exchange rates on contracts with its suppliers in China for future purchases of inventories denominated in Chinese renminbi (“RMB”). The Company generally does not hedge the net assets of its international subsidiaries. All forward contracts are recorded at fair value on the consolidated balance sheet at the end of each reporting period. The Company does not enter into derivative instruments for non-risk management purposes.

Realized and unrealized gains (losses) from forward contracts are recognized in other income (expense) in the condensed consolidated statements of operations and were $ 2.5 million in the six months ended June 30, 2015, and $ 1.3 million in the six months ended June 30, 2016.

 

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e.l.f. Beauty, Inc. and subsidiaries

Notes to condensed consolidated financial statements (unaudited)

 

The table below details outstanding foreign currency forward contracts where the notional value is determined using contract exchange rates (in thousands):

 

      December 31, 2015     June 30, 2016  
      Notional value      Fair value     Notional value      Fair value  

Foreign currency contracts

     148,978         (10,702     78,500         (5,417

 

 

The Company’s derivative transactions are governed by ISDA Master Agreements, which include provisions governing the setoff of assets and liabilities between the parties. When the Company has more than one outstanding derivative transaction with a single counterparty, the setoff provisions contained within these agreements generally allow the non-defaulting party the right to reduce its liability to the defaulting party by amounts eligible for setoff as well as eligible offsetting transactions with that counterparty, irrespective of the currency, place of payment, or booking office. The Company’s policy is to present its derivative assets and derivative liabilities on the consolidated balance sheets on a net basis. As of December 31, 2015 and June 30, 2016, all of the Company’s derivative instruments were in a net liability position.

Note 4—Fair value measurements

Assets and liabilities recorded at fair value on a recurring basis in the balance sheets are categorized based upon the level of judgment associated with the inputs used to measure their fair values. Fair value is measured using inputs from the three levels of the fair value hierarchy, which are described as follows:

Level 1 —Quoted prices in active markets for identical assets or liabilities

Level 2 —Quoted prices for similar assets and liabilities in active markets or inputs that are observable

Level 3 —Inputs that are unobservable (for example, cash flow modeling inputs based on management’s assumptions)

The assets’ or liabilities’ fair value measurement level within the fair value hierarchy is based on the lowest level of any input that is significant to the fair value measurement. Fair value of the Company’s foreign currency forward contracts is based on market prices obtained from independent brokers or determined using quantitative models that use as their basis readily observable market parameters that are actively quoted and can be validated through external sources, including third-party pricing services, brokers and market transactions. The gross carrying amounts of the Company’s long-term debt, before reduction of the debt issuance costs, and capital lease obligations approximate their fair values as the stated rates approximate market rates for loans with similar terms.

The following table sets forth the fair value of the Company’s financial liabilities by level within the fair value hierarchy at December 31, 2015 (in thousands):

 

      Fair Value      Level 1      Level 2      Level 3  

Financial liabilities:

           

Foreign currency forward contracts

   $ 10,702       $       $ 10,702       $   

Long-term debt, including current portion(1)

     148,106                 148,106           
  

 

 

 

Total financial liabilities

   $ 158,808       $       $ 158,808       $   

 

 

 

(1)   Of this amount, $ 10,325 is classified as current.

 

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e.l.f. Beauty, Inc. and subsidiaries

Notes to condensed consolidated financial statements (unaudited)

 

The following table sets forth the fair value of the Company’s financial liabilities by level within the fair value hierarchy at June 30, 2016 (in thousands):

 

      Fair Value      Level 1      Level 2      Level 3  

Financial liabilities:

           

Foreign currency forward contracts

   $ 5,417       $       $ 5,417       $   

Long-term debt, including current portion(1)

     206,368                 206,368           
  

 

 

 

Total financial liabilities

   $ 211,785       $       $ 211,785       $   

 

 

 

(1)   Of this amount, $ 6,583 is classified as current.

The Company did not transfer any assets measured at fair value on a recurring basis to or from Level 2 for any of the periods presented.

Note 5—Goodwill and intangible assets

Information regarding the Company’s goodwill and intangible assets as of December 31, 2015, is as follows (in thousands):

 

      Estimated
useful life
     Gross carrying
amount
     Accumulated
amortization
    Net carrying
amount
 

Customer relationships—retailers

     10 years       $ 68,800       $ (13,187   $ 55,613   

Customer relationships—e-commerce

     3 years         3,900         (2,436     1,464   

Favorable leases, net

     Varies         580         (175     405   
     

 

 

 

Total finite-lived intangibles

        73,280         (15,798     57,482   

Trademarks

     Indefinite         63,800                63,800   

Goodwill

        157,264                157,264   
     

 

 

 

Total goodwill and other intangibles

      $ 294,344       $ (15,798   $ 278,546   

 

 

Information regarding the Company’s goodwill and intangible assets as of June 30, 2016, is as follows (in thousands):

 

      Estimated
useful life
     Gross carrying
amount
     Accumulated
amortization
    Net carrying
amount
 

Customer relationships—retailers

     10 years       $ 68,800       $ (16,627   $ 52,173   

Customer relationships—e-commerce

     3 years         3,900         (3,086     814   

Favorable leases, net

     Varies         580         (223     357   
  

 

 

 

Total finite-lived intangibles

        73,280         (19,936     53,344   

Trademarks

     Indefinite         63,800                63,800   

Goodwill

        157,264                157,264   
  

 

 

 

Total goodwill and other intangibles

      $ 294,344       $ (19,936   $ 274,408   

 

 

Amortization expense related to intangible assets was $ 4.1 million in the six months ended June 30, 2015 and 2016. Trademark assets have been classified as indefinite-lived intangible assets and, accordingly, are not subject to amortization.

 

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e.l.f. Beauty, Inc. and subsidiaries

Notes to condensed consolidated financial statements (unaudited)

 

Future amortization expense for intangible assets as of June 30, 2016 is as follows (in thousands):

 

Remainder of 2016

   $ 4,141   

2017

     7,121   

2018

     7,007   

2019

     6,982   

2020

     6,880   

Thereafter

     21,213   
  

 

 

 

Total

   $ 53,344   

 

 

No impairments of goodwill or intangible assets were recorded in the six months ended June 30, 2015 and 2016.

Note 6—Debt

The Company’s outstanding debt as of December 31, 2015 and June 30, 2016 consisted of the following (in thousands):

 

      December 31, 2015     June 30, 2016  

Debt:

    

Revolving credit facility(1)

   $ 7,700      $ 2,000   

Term loan(1)

     100,406        161,430   

Second lien term loan(2)

     40,000        40,000   

Capital lease obligations(3)

            2,938   
  

 

 

 

Total debt

     148,106        206,368   

Less: debt issuance costs

     (3,187     (2,711
  

 

 

 

Total debt, net of issuance costs

     144,919        203,657   

Less: current portion

     (10,325     (6,583
  

 

 

 

Long-term portion of debt

   $ 134,594      $ 197,074   

 

 

 

(1)   See Note 8, “Debt,” to the Consolidated Financial Statements included in this prospectus for certain details regarding the Senior Secured Credit Facility. On June 7, 2016, the Company incurred an incremental $ 64 million in term loan borrowings under the Senior Secured Credit Facility to fund, in part, the payment of a $ 72.0 million special dividend to stockholders, and increased the total availability under the Revolving Credit Facility to $ 25 million. In connection with the incremental borrowings, certain covenants were amended to reflect the increased leverage. As of June 30, 2016, the Senior Secured Credit Facility consisted of (i) a $ 169.0 million Term Loan due January 31, 2019 and (ii) a $ 25.0 million Revolving Credit Facility, which had amounts available for draw until the maturity date on January 31, 2019 and for which the unused balance as of June 30, 2016 was $ 22.8 million.

 

(2)   See Note 8, “Debt,” to the Consolidated Financial Statements included in this prospectus for certain details regarding the Company’s $ 40.0 million Second Lien Term Loan, which matures on and does not require principal payments until July 31, 2019.

 

(3)   In connection with the transition of a warehouse and distribution center from New Jersey to California, the Company entered into certain capital leases during the six months ended June 30, 2016. The capital leases are primarily related to equipment and fixtures required to prepare the new facility for use.

Note 7—Commitments and contingencies

Operating leases

The Company leases office, retail and warehouse space in New York, New Jersey, California and China from third parties under non-cancelable operating leases that provide for minimum base rental payments (excluding taxes and other charges). The leases expire between 2016 and 2026. Total rent expense was $ 1.5 million for the six months ended June 30, 2015, and $ 1.9 million in the six months ended June 30, 2016.

 

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e.l.f. Beauty, Inc. and subsidiaries

Notes to condensed consolidated financial statements (unaudited)

 

Future minimum lease payments under the operating leases are as follows (in thousands):

 

Remainder of 2016

   $ 1,781   

2017

     3,806   

2018

     3,714   

2019

     3,595   

2020

     3,117   

Thereafter

     8,355   
  

 

 

 

Total

   $ 24,368   

 

 

Legal contingencies

From time to time, the Company may become involved in legal proceedings, claims and litigation arising in the ordinary course of business. Management is not currently aware of any matters that it expects will have a material adverse effect on the Company’s consolidated financial position, results of operations or cash flows.

Note 8—Stock-based compensation

Stock options granted pursuant to the Company’s 2014 Equity Incentive Plan (the “Plan”) permit certain management-level option holders and directors to elect to exercise unvested options prior to vesting (“early exercise”). In the event of termination of the option holder’s employment or directorship, all unvested shares issued upon the early exercise, so long as they remain unvested, are subject to repurchase by the Company at the lower of the original exercise price or the fair market value of a share of common stock on the date of termination.

Consistent with authoritative guidance, early exercises are not considered substantive exercises for accounting purposes. Cash received for the exercise of unvested options is recorded as a liability, which is released to additional paid-in capital at each reporting date as the shares vest. During the six months ended June 30, 2016, 946,455 options were early exercised prior to vesting. From the date of exercise through June 30, 2016, an additional 112,401 options subject to early exercise vested and 10,000 options subject to early exercise were forfeited and repurchased by the Company in connection with the resignation of a Board member. As of June 30, 2016, the Company recorded a liability of $ 8.2 million related to 824,054 shares that remained subject to a potential repurchase obligation of the Company. The portion of the liability related to shares expected to vest within the next twelve months, or $ 1.6 million, is included in accrued expenses and other current liabilities with the remaining $ 6.7 million included in other long-term liabilities.

In connection with certain of these early exercises, the Company also extended loans to certain key management personnel (the “Debtors”) totaling $ 10.4 million (the “2016 Notes”). The 2016 Notes served as financing for the Debtors’ 2016 exercise of both vested and unvested options. The 2016 Notes are secured by the underlying shares and are full recourse to the respective Debtor’s personal assets. The 2016 Notes carry interest at between 0.75% and 0.81% per annum, due semi-annually, and mature in January 2018 or earlier upon the occurrence of certain events specified in the 2016 Note agreements. Amounts due from employees in relation to the 2016 Notes have been recorded as a reduction in stockholders’ equity. Upon early exercise, the option holders received shares of restricted common stock and, as such, participated in the June 2016 special dividend. Pursuant to the terms of the 2016 Notes, the proceeds from the dividend were required to be used to pay down the outstanding principal balance. Accordingly, as of June 30, 2016, the outstanding balance was reduced by $ 4.1 million to $ 6.4 million in connection with such repayment.

In June 2016, the Company modified all stock options outstanding and reduced the exercise price by $4.93 per share in order to protect the option holders from dilution that would have otherwise resulted from the dividend recapitalization transaction. A total of 43 individuals, including three board members, held options that were modified. As the Company was not obligated to provide anti-dilution protection under the Plan, this constituted a modification, as defined by ASC 718 Compensation-stock compensation , which requires calculation of the incremental fair value of the new award. During the six months ended June 30, 2016, the Company recognized incremental compensation cost of $ 0.7 million related to the vested portion of the modified awards. An additional $ 1.6 million in incremental compensation cost is expected to be recognized

 

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e.l.f. Beauty, Inc. and subsidiaries

Notes to condensed consolidated financial statements (unaudited)

 

over the remaining requisite service period for service-based options, and an additional $ 0.3 million in incremental compensation cost is expected to be recognized when the performance condition is met for performance-based options.

Service-based options

The following table summarizes the activities for service-based stock options for the six months ended June 30, 2016:

 

      Options
outstanding
    Weighted-average
exercise price(1)
    

Weighted-average
remaining

contractual life

(in years)

    

Aggregate
intrinsic values

(in thousands)

 

Balance as of December 31, 2015

     1,448,371      $ 10.09         

Granted

     117,500        14.61         

Exercised

     (289,702     9.93         

Forfeited

     (64,000     11.09         

Cancelled

     (15,000     10.00         
  

 

 

       

Balance as of June 30, 2016

     1,197,169      $ 5.55         8.5       $ 16,615   
  

 

 

       

Exercisable, June 30, 2016

     139,800      $ 5.07         8.0       $ 2,008   

 

 

 

(1)   The weighted-average exercise prices incorporate the impact of the $ 4.93 exercise price modification for any activity occurring subsequent to the June 7, 2016 modification date.

The aggregate intrinsic value is calculated as the difference between the exercise price of the underlying awards and the fair market value of a share of common stock of $ 19.43 on June 30, 2016.

Stock-based compensation cost related to service-based options was $ 0.2 million in the six months ended June 30, 2015, and $ 0.4 million in the six months ended June 30, 2016, excluding the portion attributable to the exercise price modification. All stock-based compensation expense is recorded in selling, general and administrative expenses. As of June 30, 2016, there was $ 4.0 million in unrecognized stock-based compensation cost related to unvested service-based stock options, including $ 1.6 million attributable to the exercise price modification, which is expected to be recognized over a weighted-average period of 3.6 years and the remaining $ 2.5 million expected to be recognized over a weighted-average period of 3.8 years.

Performance-based options

For the Company’s performance-based options, in addition to the service condition, the ultimate number of shares to be earned depends on the achievement of both a performance and market condition. The performance condition is based on the occurrence of a liquidity event (i.e., initial public offering or change-in-control transaction). The market condition is based upon the achievement of a minimum rate of return from the liquidity event.

The following table summarizes the activities for performance-based stock options for the six months ended June 30, 2016:

 

      Options
outstanding
    Weighted-average
exercise price(1)
    

Weighted-average
remaining
contractual life

(in years)

    

Aggregate
intrinsic values

(in thousands)

 

Balance as of December 31, 2015

     1,756,841      $ 10.04         

Granted

     52,500        14.61         

Exercised

                    

Forfeited

     (442,193     10.07         

Cancelled

     (2,500     10.00         
  

 

 

       

Balance as of June 30, 2016

     1,364,648      $ 5.26         8.2       $ 19,337   

 

 

 

(1)   The weighted-average exercise prices incorporate the impact of the $ 4.93 exercise price modification for any activity occurring subsequent to the June 7, 2016 modification date.

 

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e.l.f. Beauty, Inc. and subsidiaries

Notes to condensed consolidated financial statements (unaudited)

 

The aggregate intrinsic value is calculated as the difference between the exercise price of the underlying awards and the fair market value of a share of common stock of $ 19.43 on June 30, 2016.

In regard to the performance condition, if the liquidity event occurred on or prior to January 31, 2016, an additional number of options would have vested, assuming the minimum rate of return was achieved. During the six months ended June 30, 2016, a total of 333,193 performance-based options did not vest and were forfeited because a liquidity event did not occur on or prior to January 31, 2016. The remaining forfeitures occurred in connection with the termination of employment of certain employees.

Because the achievement of the performance condition is not probable until a liquidity event (i.e., initial public offering or change-in-control transaction) has occurred, no compensation expense was recognized during the six months ended June 30, 2016 related to these performance-based options. As of June 30, 2016, there was $ 1.9 million in unrecognized stock-based compensation cost related to unvested performance-based stock options, including $ 0.3 million attributable to the exercise price modification.

Note 9—Net loss per share

The Company computes basic earnings per share using the weighted average number of common shares outstanding. As the Company incurred a net loss attributable to common stockholders during both the six months ended June 30, 2015 and the six months ended June 30, 2016, basic and diluted weighted average shares outstanding are the same. The following is a reconciliation of the numerator and denominator in the basic and diluted net loss per common share computations (in thousands, except share and per share data):

 

      Six months ended June 30,  
      2015     2016  

Numerator:

    

Net income

   $ 2,678      $ 1,089   

Adjustments to numerator:

    

Dividend paid to preferred stockholders

   $      $ (66,531

Accretion of convertible preferred stock to maximum redemption value

     (5,881     (65,090
  

 

 

 

Net loss attributable to common stockholders—basic and diluted

   $ (3,203   $ (130,532
  

 

 

 

Denominator:

    

Weighted average number of common shares outstanding—basic

     10,000        235,967   

Weighted average number of common shares outstanding—diluted

     10,000        235,967   

Net loss per share:

    

Basic

   $ (320.28   $ (553.18

Diluted

   $ (320.28   $ (553.18

Anti-dilutive securities excluded from diluted EPS:

    

Service-based stock options

     1,211,504        1,197,169   

Common shares underlying convertible preferred stock

     13,504,123        13,504,123   
  

 

 

 

Total

     14,715,627        14,701,292   

 

 

 

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e.l.f. Beauty, Inc. and subsidiaries

Notes to condensed consolidated financial statements (unaudited)

 

Pro forma net income (loss) per share

Pro forma net income (loss) per share reflects the application of the proceeds from the sale of                  shares from the proposed IPO (assuming the mid-point of the IPO price range) that are necessary to cover the $ 72 million dividend paid to stockholders on June 7, 2016, which was in excess of the Company’s historical earnings.

 

      Six months ended
June 30, 2016
 

Numerator:

  

Net income

  

Denominator:

  

Basic:

  

Weighted-average number of shares outstanding—basic

     235,967   

Add: Common shares offered hereby to fund the dividend in excess of earnings

  
  

 

 

 

Pro forma weighted average number of shares outstanding—basic

  
  

 

 

 

Diluted:

  

Pro forma weighted average number of shares outstanding—basic

  

Weighted average effect of dilutive securities:

  
  

 

 

 

Pro forma weighted average number of shares outstanding—diluted

  
  

 

 

 

Pro forma net income (loss) per share:

  

Basic

  

Diluted

  

Anti-dilutive securities excluded from pro forma basic EPS:

  

Common shares underlying convertible preferred stock

  

Anti-dilutive securities excluded from pro forma diluted EPS:

  

Service-based stock options

       

Total

       

 

 

Note 10—Related party transactions

During the six months ended June 30, 2015, the Company incurred $ 0.3 million in management and consulting fees to its majority stockholder, TPG. During the six months ended June 30, 2016, the Company incurred $ 0.5 million in management and consulting fees to TPG. The amounts due to TPG as of both June 30, 2015 and 2016 were immaterial.

As disclosed in Note 8, during the six months ended June 30, 2016, the Company extended loans to certain key management personnel totaling $ 10.4 million.

Note 11—Subsequent events

Management evaluates events occurring subsequent to the date of the financial statements in determining the accounting for and disclosure of transactions and events that affect the financial statements. Subsequent events have been evaluated through August 10, 2016, which is the date that the financial statements were issued.

The Company entered into new lease agreements for e.l.f. stores with a minimum future lease commitment amount of $ 2.4 million. Certain of these leases also provide for the payment of contingent rent based on a percentage of sales.

 

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e.l.f. Beauty, Inc. and subsidiaries

Notes to condensed consolidated financial statements (unaudited)

 

In January 2016, the Company extended loans to certain key management personnel (the “Debtors’”) totaling $ 10.4 million (the “2016 Notes”). The 2016 Notes served as financing for the Debtors’ 2016 exercise of previously issued stock options. In July 2016, the Company provided an additional loan totaling $ 1.5 million (the “July 2016 Add-On Note”) to one of the Debtors to finance the exercise of an additional 292,764 options at an exercise price of $ 5.07 per option. The July 2016 Add-On Note carries interest at 0.71% per annum, due semi-annually, and matures in July 2018 or earlier upon the occurrence of certain events specified in the Note agreement. All other terms and conditions of the July 2016 Add-On Note are identical to the 2016 Notes. Amounts due from the Debtor in relation to the July 2016 Add-On Note will be reduced from stockholders’ equity. Cash received from the Debtor for early exercise of unvested options is treated as a liability. Amounts so recorded are transferred into common stock and additional paid-in capital as the shares vest.

 

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Part II

Information not required in prospectus

Item 13. Other expenses of issuance and distribution.

The following table sets forth the expenses payable by the Registrant expected to be incurred in connection with the issuance and distribution of the shares of common stock being registered hereby (other than underwriting discounts and commissions). All of such expenses are estimates, other than the filing and listing fees payable to the Securities and Exchange Commission (the “SEC”), the Financial Industry Regulatory Authority, Inc. (“FINRA”) and the New York Stock Exchange (the “NYSE”) listing fee.

 

Item    Amount to
be paid
 

SEC registration fee

   $         *   

FINRA filing fee

     *   

NYSE listing fee

     *   

Printing and engraving expenses

     *   

Legal fees and expenses

     *   

Accounting fees and expenses

     *   

Blue Sky, qualification fees and expenses

     *   

Transfer agent fees and expenses

     2,500   

Miscellaneous expenses

     *   
  

 

 

 

Total

   $ *   

 

 

 

*   To be completed by amendment.

Item 14. Indemnification of directors and officers.

Section 102(b)(7) of the Delaware General Corporation Law ( the “DGCL”) allows a corporation to provide in its certificate of incorporation that a director of the corporation will not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached the duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. Our amended and restated certificate of incorporation will provide for this limitation of liability.

Section 145 of the DGCL (“Section 145”), provides, among other things, that a Delaware corporation may indemnify any person who was, is or is threatened to be made, 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 such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include 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, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any persons who were or are a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person is or was a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests, provided further that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director has actually and reasonably incurred.

 

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Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who 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 or enterprise, 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 otherwise have the power to indemnify him or her under Section 145.

Our amended and restated certificate of incorporation will include a provision that, to the fullest extent permitted by the DGCL, eliminates the personal liability of directors to us or our stockholders for monetary damages for any breach of fiduciary duty as a director. The effect of these provisions will be to eliminate the rights of us and our stockholders, through stockholders’ derivative suits on our behalf, to recover monetary damages from a director for breach of fiduciary duty as a director, including breaches resulting from grossly negligent behavior. However, exculpation will not apply to any director if the director has acted in bad faith, knowingly or intentionally violated the law, authorized illegal dividends or redemptions or derived an improper benefit from his or her actions as a director. Further, our amended and restated certificate of incorporation and our amended and restated bylaws will provide that we must indemnify and advance expenses to our directors and officers to the fullest extent authorized by the DGCL. We also will be expressly authorized to carry directors’ and officers’ liability insurance providing indemnification for our directors, officers and certain employees for some liabilities.

Section 174 of the DGCL provides, among other things, that a director, who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption, may be held jointly and severally liable for such actions. A director who was either absent when the unlawful actions were approved or dissented at the time may avoid liability by causing his or her dissent to such actions to be entered in the books containing the minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.

The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, provision of our amended and restated certificate of incorporation, our amended and restated bylaws, agreement, vote of stockholders or disinterested directors or otherwise.

We expect to maintain standard policies of insurance that provide coverage (i) to our directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act and (ii) to us with respect to indemnification payments that we may make to such directors and officers.

The proposed form of Underwriting Agreement to be filed as Exhibit 1.1 to this Registration Statement provides for indemnification to us, our directors and officers and the selling stockholders by the underwriters, and to the underwriters by us and the selling stockholders, against certain liabilities.

Item 15. Recent sales of unregistered securities.

The following list sets forth information as to all securities the Company has sold since December 20, 2013, which were not registered under the Securities Act of 1933, as amended (the “Securities Act”):

 

1.   In connection with the Company’s acquisition of 100% of the outstanding shares of capital stock of e.l.f. Cosmetics, Inc. on January 31, 2014, the Company issued 135,041.235 shares of preferred stock at a price per share of $ 1,000.00 and 10,000 shares of common stock at a price per share of $ 10.00 in exchange for cash consideration of $ 125.1 million and shares of Class A common stock of e.l.f. Cosmetics, Inc. from certain then-existing stockholders of e.l.f. Cosmetics, Inc.

 

2.   The Company granted stock options and stock awards to employees, directors and consultants under the Company’s 2014 Equity Incentive Plan, covering an aggregate of 3,798,563 shares of common stock, at a weighted-average exercise price of $ 6.05 per share (as adjusted for the special dividend declared on June 7, 2016). Of these, options covering an aggregate of 792,044 shares were cancelled without being exercised.

 

3.   The Company issued a total of 1,440,620 shares of common stock at a weighted average price per share of $ 8.91 for total cash proceeds of $ 12.8 million upon the exercise of stock options.

The issuances of the securities described in paragraph (1) were exempt from the registration requirements of the Securities Act as transactions by an issuer not involving a public offering in reliance on Section 4(a)(2) of the Securities Act.

The sales and issuances of securities in the transactions described in paragraphs (2) and (3) above were exempt from the registration requirements of the Securities Act as transactions by an issuer not involving a public offering in reliance on Section 4(a)(2) of the Securities Act and under Rule 701 promulgated under the Securities Act, in that they were offered and sold either pursuant to written compensatory plans or written contracts relating to compensation, as provided by Rule 701.

 

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No sales involved underwriters, underwriting discounts or commissions or public offerings of securities of the Company.

Item 16. Exhibits and financial statement schedules.

(a) Exhibits

See the Exhibit Index attached to this registration statement, which is incorporated by reference herein.

(b) Financial statement schedule

All schedules are omitted because the required information is either not present, not present in material amounts or presented within our audited consolidated financial statements included elsewhere in this prospectus and are incorporated herein by reference.

Item 17. Undertakings

 

(1)   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 SEC 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.

 

(2)   The undersigned Registrant hereby undertakes that:

 

  (A)   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 it was declared effective.

 

  (B)   For the purpose 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.

 

(3)   The undersigned Registrant hereby undertakes to provide to the underwriter at the closing specified in the underwriting agreements certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser.

 

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Signatures

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Registration Statement or amendment thereto to be signed on its behalf by the undersigned, thereunto duly authorized, in Oakland, California, on the 26th day of August, 2016.

 

e.l.f. Beauty, Inc.

By: 

 

/s/ Tarang P. Amin

 

Name:     Tarang P. Amin

 

Title:       Chief Executive Officer

Power of attorney

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Tarang P. Amin, John P. Bailey and Scott K. Milsten, and each of them acting individually, as his or her true and lawful attorneys-in-fact and agents, each with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement, including post-effective amendments or any abbreviated registration statement and any amendments thereto filed pursuant to Rule 462(b) increasing the number of securities for which registration is sought, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, with full power of each to act alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement or amendment thereto has been signed by the following persons in the capacities indicated on the 26th day of August, 2016.

 

Signature

  

Title

/s/ Tarang P. Amin

Tarang P. Amin

  

Chief Executive Officer, Chairman and Director

(Principal Executive Officer)

/s/ John P. Bailey

John P. Bailey

  

President and Chief Financial Officer

(Principal Financial and Accounting Officer)

/s/ Lauren Cooks Levitan

Lauren Cooks Levitan

  

Director

/s/ William E. McGlashan, Jr.

William E. McGlashan, Jr.

  

Director

/s/ Joseph A. Shamah

Joseph A. Shamah

  

Director

/s/ Sabrina L. Simmons

Sabrina L. Simmons

  

Director

/s/ Maureen C. Watson

Maureen C. Watson

  

Director

/s/ Richard G. Wolford

Richard G. Wolford

  

Director


Table of Contents

Exhibit index

 

Exhibit
number
  

Exhibit description

  1.1*    Form of Underwriting Agreement.
  3.1    Amended and Restated Certificate of Incorporation, as amended, currently in effect.
  3.2*    Form of Second Certificate of Amendment to Amended and Restated Certificate of Incorporation, to be in effect prior to the effectiveness of the Registration Statement.
  3.3    Form of Amended and Restated Certificate of Incorporation, to be in effect immediately prior to the consummation of this offering.
  3.4    Second Amended and Restated Bylaws, as amended, currently in effect.
  3.5    Form of Amended and Restated Bylaws, to be in effect immediately prior to the consummation of this offering.
  4.1    Reference is made to exhibits 3.1 through 3.5.
  4.2    Registration Rights Agreement, dated as of January 31, 2014, by and among the Registrant and certain stockholders party thereto.
  4.3   

Form of Amended and Restated Stockholders Agreement, by and among the Registrant and certain equityholders party thereto, to be in effect prior to the effectiveness of the Registration Statement on Form 8-A relating to the registration pursuant to Section 12(b) of the Securities Exchange Act of 1934 of the securities issued pursuant to this offering.

  4.4*    Form of Common Stock Certificate.
  5.1*    Opinion of Latham & Watkins LLP.
10.1    Standard Multi-Tenant Office Lease, dated as of March 31, 2014, by and between 1007 Clay Street Properties LLC and e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.).
10.2    Addendum to Standard Multi-Tenant Office Lease, dated as of March 31, 2014, by and between 1007 Clay Street Properties LLC and e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.).
10.3    Standard Multi-Tenant Office Lease, dated as of October 5, 2015, by and between 1007 Clay Street Properties LLC and e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.).
10.4    Addendum to Standard Multi-Tenant Office Lease, dated as of October 22, 2015, by and between 1007 Clay Street Properties LLC and e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.).
10.5    Standard Industrial/Commercial Multi-Tenant Lease, dated as of December 9, 2015, by and between Jurupa Gateway LLC and e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.).
10.6(a)    Credit Agreement, dated as of January 31, 2014, by and among the Registrant, Bank of Montreal, as administrative agent, swingline lender and l/c issuer, and the other parties thereto.
10.6(b)    First Amendment to Credit Agreement, dated as of June 7, 2016, by and among e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.), the Registrant, certain of the Registrant’s U.S. subsidiaries, Bank of Montreal, as administrative agent and lender, and the other parties thereto.
10.7    Joinder Agreement to the Credit Agreement, dated as of January 31, 2014, by and among the Registrant, e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.), certain of the Registrant’s U.S. subsidiaries, and Bank of Montreal, as administrative agent.
10.8(a)    Second Lien Credit Agreement, dated as of January 31, 2014, by and among the Registrant, U.S. Bank National Association, as collateral agent, and the other parties thereto.
10.8(b)    First Amendment to Second Lien Credit Agreement, dated as of August 14, 2014, by and among e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.), the Registrant, certain of the Registrant’s U.S. subsidiaries, U.S. Bank National Association, as collateral agent, and other parties thereto.
10.8(c)    Second Amendment to Second Lien Credit Agreement, dated as of June 7, 2016, by and among e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.), the Registrant, certain of the Registrant’s U.S. subsidiaries, U.S. Bank National Association, as collateral agent, and the other parties thereto.
10.9    Joinder to Second Lien Credit Agreement, dated as of January 31, 2014, by and among the Registrant, e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.), certain of the Registrant’s U.S. subsidiaries, U.S. Bank National Association, as collateral agent, and the other parties thereto.


Table of Contents
Exhibit
number
  

Exhibit description

10.10(a)    Subordination and Intercreditor Agreement, dated as of January 31, 2014, by and among the Registrant, Bank of Montreal, as lender and administrative agent to the senior lenders, U.S. Bank National Association, as collateral agent for the second lien lenders, and the other parties thereto.
10.10(b)    Consent Under, Reaffirmation of and First Amendment to Subordination and Intercreditor Agreement, dated as of August 26, 2014, by and among the Registrant, e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.), certain of the Registrant’s U.S. subsidiaries, Bank of Montreal, as administrative agent for the senior lenders, U.S. Bank National Association, as collateral agent for the second lien lenders, and the other parties thereto.
10.10(c)    Consent Under, Reaffirmation of and Second Amendment to Subordination and Intercreditor Agreement, dated as of June 7, 2016, by and among the Registrant, e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.), certain of the Registrant’s U.S. subsidiaries, Bank of Montreal, as administrative agent for the senior lenders, U.S. Bank National Association, as collateral agent for the second lien lenders, and the other parties thereto.
10.11    Joinder Agreement to the Subordination and Intercreditor Agreement, dated as of January 31, 2014, by and among the Registrant, e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.), certain of the Registrant’s U.S. subsidiaries, Bank of Montreal, as lender and administrative agent to the senior lenders, U.S. Bank National Association, as collateral agent for the second lien lenders, and the other parties thereto.
10.12#    2014 Equity Incentive Plan of the Registrant.
10.13#    Forms of stock option award agreements used under the 2014 Equity Incentive Plan of the Registrant.
10.14#    2014 Phantom Equity Plan of the Registrant.
10.15#    Form of phantom shares award agreement used under the 2014 Phantom Equity Plan of the Registrant.
10.16#*    2016 Equity Incentive Plan of the Registrant.
10.17#*    Forms of award agreements used under the 2016 Equity Incentive Plan of the Registrant.
10.18#*    2016 Employee Stock Purchase Plan of the Registrant.
10.19#    Employment Agreement, dated as of January 31, 2014, by and among Tarang Amin, e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.) and the Registrant.
10.20#    Employment Agreement, dated as of August 13, 2015, by and among John Bailey, e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.) and the Registrant.
10.21#    Employment Agreement, dated as of January 31, 2014, by and among Scott Milsten, e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.) and the Registrant.
10.22#    Employment Agreement, dated as of February 2, 2014, by and among Richard Baruch, Jr., e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.) and the Registrant.
10.23#*    Amended and Restated Employment Agreement, by and among Erin Daley, e.l.f. Cosmetics, Inc. and the Registrant.
10.24#    Employment Agreement, dated as of July 8, 2016, by and between Jonathan T. Fieldman, e.l.f. Cosmetics, Inc. and the Registrant.
10.25#    Form of Indemnification Agreement for directors and officers.
10.26#*    Non-Employee Director Compensation Program.
21.1    List of the Registrant’s Significant Subsidiaries.
23.1    Consent of independent registered public accounting firm.
23.2*    Consent of Latham & Watkins LLP (included in Exhibit 5.1).
23.3    Consent of Calimesa Consulting Partners, LLC.
23.4    Consent of MetrixLab.
24.1    Power of Attorney. Reference is made to the signature page to the Registration Statement.

 

*   To be filed by amendment.

 

#   Indicates management contract or compensatory plan.

Exhibit 3.1

CERTIFICATE OF

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

J.A. COSMETICS HOLDINGS, INC.

The undersigned, Ronald Cami, certifies that he is the Secretary of J.A. Cosmetics Holdings, Inc. (the “ Corporation ”), a corporation organized and existing under the laws of the State of Delaware and does hereby further certify as follows:

The name of the Corporation is “J.A. Cosmetics Holdings, Inc.” The Certificate of Incorporation of the Corporation was originally filed with the Secretary of State of the State of Delaware on December 20, 2013.

The Amended and Restated Certificate of Incorporation of the Corporation in the form attached hereto as Exhibit A has been duly adopted in accordance with the provisions of Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware by the directors and stockholders of the Corporation.

The Amended and Restated Certificate of Incorporation so adopted reads in full as set forth in Exhibit A attached hereto and is incorporated herein by this reference.


IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed by its Secretary as of this 31st day of January, 2014.

 

J.A. COSMETICS HOLDINGS, INC.

/s/ Ronald Cami

Ronald Cami
Secretary


EXHIBIT A

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

J.A. COSMETICS HOLDINGS, INC.

ARTICLE ONE

NAME OF THE CORPORATION

The name of the corporation is J.A. Cosmetics Holdings, Inc. (the “ Corporation ”).

ARTICLE TWO

REGISTERED OFFICE AND REGISTERED AGENT

The address of the registered office of the Corporation in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware, 19801. The name of the Corporation’s registered agent at such address is The Corporation Trust Company.

ARTICLE THREE

NATURE OF BUSINESS

The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.

ARTICLE FOUR

AUTHORIZED SHARES

The total number of shares of capital stock which the Corporation shall have authority to issue is 5,200.000 shares, consisting of 5,000,000 shares of common stock, $0.01 par value per share, and 200,000 shares of preferred stock, $0.01 par value per share (the “ Preferred Stock ”).

ARTICLE FIVE

PREFERRED STOCK

 

A. Dividends .

 

  (i)

General Obligation . When and as declared by the Corporation’s board of directors (the “ Board ”) and to the extent not prohibited under the General


  Corporation Law of the State of Delaware, the Corporation shall pay preferential dividends in cash to the holders of the Preferred Stock as provided in this Section V.A . Dividends shall accrue on each share of the Preferred Stock (a “ Share ”) on a daily basis at the rate of 8% per annum of the sum of the Liquidation Value thereof plus all accumulated and unpaid dividends thereon from and including the date of issuance of such Share to and including the first to occur of (i) the date on which the Liquidation Value of such Share (plus all accrued and unpaid dividends thereon) is paid to the holder thereof in connection with the liquidation of the Corporation or the redemption of such Share by the Corporation, (ii) the date on which such Share is converted into shares of Conversion Stock hereunder or (iii) the date on which such share is otherwise acquired by the Corporation. Such dividends shall accrue regardless of whether or not (a) such dividends have been declared, (b) there are profits or surplus (as defined in the General Corporation Law of the State of Delaware) available for payment or (c) the Corporation is prohibited from paying dividends under applicable law. The date on which the Corporation initially issues any Share shall be deemed to be its “date of issuance” regardless of the number of times transfer of such Share is made on the stock records maintained by or for the Corporation and regardless of the number of certificates which may be issued to evidence such Share.

 

  (ii) Dividend Reference Dates . To the extent not paid on March 31, June 30, September 30 and December 31 of each year, beginning March 31, 2014 (the “ Dividend Reference Dates ”), all dividends which have accrued on each Share outstanding during the three (3)-month period (or other period in the case of the initial Dividend Reference Date) ending upon each such Dividend Reference Date shall be accumulated and shall remain accumulated dividends with respect to such Share until paid to the holder thereof.

 

  (iii) Distribution of Partial Dividend Payments . Except as otherwise provided herein, if at any time the Corporation pays less than the total amount of dividends then accrued with respect to the Preferred Stock, such payment shall be distributed pro rata among the holders thereof based upon the number of Shares held by each such holder.

B. Liquidation . Upon any liquidation, dissolution or winding up of the Corporation (whether voluntary or involuntary), each holder of Preferred Stock shall be entitled to be paid, before any distribution or payment is made upon any Junior Securities, an amount in cash equal to the greater of (i) the aggregate Liquidation Value of all Shares held by such holder (plus all accrued and unpaid dividends thereon) or (ii) the amount to which such holder would be entitled to receive upon such liquidation, dissolution or winding up if all of such holder’s Preferred Stock was converted into Conversion Stock immediately prior to such event, and except as otherwise provided in Section V.D , the holders of Preferred Stock shall not be entitled to any further payment with respect to their Shares. If upon any such liquidation, dissolution or winding up of the Corporation the assets of the Corporation to be distributed among the holders of the Preferred Stock are insufficient to permit payment to such holders of the aggregate amount which they are entitled to be paid under this Section V.B , then the entire assets available to be distributed to the Corporation’s stockholders shall be distributed pro rata among such holders based upon the


aggregate Liquidation Value (plus all accrued and unpaid dividends) of the Preferred Stock held by each such holder. Not less than thirty (30) days prior to the payment date stated therein, the Corporation shall deliver written notice of any such liquidation, dissolution or winding up to each record holder of Preferred Stock, setting forth in reasonable detail the amount of proceeds to be paid with respect to each Share and each share of Junior Securities in connection with such liquidation, dissolution or winding up.

C. Priority of Preferred Stock on Dividends and Redemptions . So long as any Preferred Stock remains outstanding, without the prior written consent of the holders of a majority of the outstanding Shares, the Corporation shall not, nor shall it permit any Subsidiary to, redeem, purchase or otherwise acquire directly or indirectly any Junior Securities, nor shall the Corporation directly or indirectly pay or declare any dividend or make any distribution upon any Junior Securities; provided that the Corporation may repurchase shares of Common Stock from present or former employees or directors of the Corporation and its Subsidiaries in accordance with agreements entered into with such employees or directors.

 

D. Redemptions .

 

  (i) Optional Redemptions . The Corporation may at any time and from time to time redeem all or any portion of the Shares then outstanding; provided that no redemption pursuant to this Section V.D(i) may be made for less than the equivalent of $25,000,000. Upon any such redemption, the Corporation shall pay a price per Share equal to the amount payable on such Shares pursuant to Section V.B (as determined in good faith by the Board).

 

  (ii) Mandatory Redemptions . In the event of the Corporation’s initial Public Offering, the Corporation shall redeem, contemporaneously with the consummation of such initial Public Offering, all of the Preferred Stock owned by all holders thereof at a price per Share equal to the amount payable on such Shares pursuant to Section V.B (as determined in good faith by the Board); provided the amount under Section V.B(ii) shall be based on the net proceeds received by the Corporation per share of Common Stock sold in such initial Public Offering.

 

  (iii)

Redemption Payments . For each Share which is to be redeemed hereunder, the Corporation shall be obligated on the Redemption Date to pay to the holder thereof (upon surrender by such holder at the Corporation’s principal office of the certificate representing such Share) an amount in cash immediately available funds equal to the Liquidation Value of such Share (plus all accrued and unpaid dividends thereon). If on any Redemption Date the Corporation is prohibited, under applicable law or the debt financing agreements to which the Corporation is subject, from redeeming the total number of Shares to be redeemed on such date, the Corporation shall redeem the maximum number of Shares that it is not prohibited under applicable law or such debt financing agreements from so redeeming pro rata among the holders of the Shares to be redeemed. At any time thereafter when the Corporation is not prohibited under applicable law or such debt financing agreements from redeeming additional Shares which the


  Corporation has become obligated to redeem on any Redemption Date but which it has not redeemed, the Corporation shall immediately redeem the maximum number of such Shares that it is not prohibited by applicable law or such debt financing agreements from redeeming pro rata among the holders of the Shares upon the same basis until all of such Shares have been redeemed.

 

  (iv) Notice of Redemption . Except as otherwise provided herein, the Corporation shall mail written notice of each redemption of Preferred Stock to each record holder thereof not more than sixty (60) nor less than thirty (30) days prior to the date on which such redemption is to be made. Upon mailing any notice of redemption which relates to a redemption at the Corporation’s option, the Corporation shall become obligated to redeem the total number of Shares specified in such notice at the time of redemption specified therein. In case fewer than the total number of Shares represented by any certificate are redeemed, a new certificate representing the number of unredeemed Shares shall be issued to the holder thereof without cost to such holder within five business days after surrender of the certificate representing the redeemed Shares.

 

  (v) Determination of the Number of Each Holder’s Shares to be Redeemed . Except as otherwise provided herein, the number of Shares to be redeemed from each holder thereof in redemptions hereunder shall be the number of Shares determined by multiplying the total number of Shares to be redeemed times a fraction, the numerator of which shall be the total number of Shares then held by such holder and the denominator of which shall be the total number of Shares then outstanding.

 

  (vi) Dividends After Redemption Date . No Share shall be entitled to any dividends accruing after the date on which the Liquidation Value of such Share (plus all accrued and unpaid dividends thereon) is paid to the holder of such Share. On such date, all rights of the holder of such Share shall cease, and such Share shall no longer be deemed to be issued and outstanding.

 

  (vii) Redeemed or Otherwise Acquired Shares . Any Shares which are redeemed or otherwise acquired by the Corporation shall be canceled and retired to authorized but unissued shares and shall not be reissued, sold or transferred.

 

  (viii) Other Redemptions or Acquisitions . The Corporation shall not, nor shall it permit any Subsidiary to, redeem or otherwise acquire any Shares of Preferred Stock, except as expressly authorized herein or pursuant to a purchase offer made pro rata to all holders of Preferred Stock on the basis of the number of Shares owned by each such holder.

E. Voting Rights . Except as otherwise required by applicable law, all holders of Preferred Stock shall be entitled to a number of votes per share equal to the number of shares of Conversion Stock issuable with respect to a share of Preferred Stock upon conversion thereof on the record date for the matter being voted upon, voting as a single class together with all holders of Common Stock, on all matters to be voted on by the Corporation’s stockholders.


F. Conversion Procedure .

 

  (i) At any time and from time to time, any holder of Preferred Stock may convert all or any portion of Preferred Stock held by such holder into a number of shares of Conversion Stock computed by multiplying the number of Shares to be converted by $1,000 and dividing the result by the Conversion Price then in effect.

 

  (ii) Except as otherwise provided herein, each conversion of Preferred Stock shall be deemed to have been effected as of the close of business on the date on which the certificate or certificates representing Preferred Stock to be converted have been surrendered for conversion at the principal office of the Corporation. At the time any such conversion has been effected, the rights of the holder of the Shares converted as a holder of Preferred Stock shall cease, and the Person or Persons in whose name or names any certificate or certificates for shares of Conversion Stock are to be issued upon such conversion shall be deemed to have become the holder or holders of record of the shares of Conversion Stock represented thereby.

 

  (iii) The conversion rights of any Share subject to redemption hereunder shall terminate on the Redemption Date for such Share unless the Corporation has failed to pay to the holder thereof the Liquidation Value of such Share (plus all accrued and unpaid dividends thereon and any premium payable with respect thereto).

 

  (iv) Notwithstanding any other provision hereof, if a conversion of Preferred Stock is to be made in connection with a Public Offering, a Change in Ownership, a Fundamental Change or other transaction affecting the Corporation, the conversion of any Shares may, at the election of the holder thereof, be conditioned upon the consummation of such event or transaction, in which case such conversion shall not be deemed to be effective until such event or transaction has been consummated.

 

  (v) As soon as possible after a conversion of Preferred Stock has been effected (but in any event within three business days in the case of paragraph (A) below), the Corporation shall deliver to the converting holder:

(A) a certificate or certificates representing the number of shares of Conversion Stock issuable by reason of such conversion in such name or names and such denomination or denominations as the converting holder has specified; and

(B) a certificate representing any Shares which were represented by the certificate or certificates delivered to the Corporation in connection with such conversion but which were not converted.

 

  (vi) If the Corporation is prohibited under applicable law from paying any portion of the accrued and unpaid dividends on Preferred Stock being converted, the Corporation shall pay such dividends to the converting holder as soon thereafter as (and to the maximum extent as) the Corporation is not prohibited from doing so under applicable law. At the request of any such converting holder, the Corporation shall provide such holder with written evidence of its obligation to such holder.


  (vii) The issuance of certificates for shares of Conversion Stock upon conversion of Preferred Stock shall be made without charge to the holders of such Preferred Stock for any issuance tax in respect thereof or other cost incurred by the Corporation in connection with such conversion and the related issuance of shares of Conversion Stock. Upon conversion of each Share, the Corporation shall take all such actions as are necessary or appropriate in order to insure that the Conversion Stock issuable with respect to such conversion shall be validly issued, fully paid and nonassessable, free and clear of all taxes, liens, charges and encumbrances with respect to the issuance thereof.

 

  (viii) The Corporation shall not close its books against the transfer of Preferred Stock or of Conversion Stock issued or issuable upon conversion of Preferred Stock in any manner which interferes with the timely conversion of Preferred Stock. The Corporation shall assist and cooperate with any holder of Preferred Stock required to make any governmental filings or obtain any governmental approval prior to or in connection with any conversion of Preferred Stock hereunder (including, without limitation, making any governmental filings required to be made by the Corporation).

 

  (ix) The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Conversion Stock, solely for the purpose of issuance upon the conversion of Preferred Stock, such number of shares of Conversion Stock issuable upon the conversion of all outstanding Preferred Stock. All shares of Conversion Stock which are so issuable shall, when issued, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens, charges and encumbrances. The Corporation shall take all such actions as may be necessary or appropriate to assure that all such shares of Conversion Stock may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Conversion Stock may be listed (except for official notice of issuance which shall be immediately delivered by the Corporation upon each such issuance). The Corporation shall not take any action which would cause the number of authorized but unissued shares of Conversion Stock to be less than the number of such shares required to be reserved hereunder for issuance upon conversion of Preferred Stock.

 

  (x) If the shares of Conversion Stock issuable by reason of conversion of Preferred Stock are convertible into or exchangeable for any other stock or securities of the Corporation, the Corporation shall, at the converting holder’s option, upon surrender of the Shares to be converted by such holder as provided herein together with any notice, statement or payment required to effect such conversion or exchange of Conversion Stock, deliver to such holder or as otherwise specified by such holder a certificate or certificates representing the stock or securities into which the shares of Conversion Stock issuable by reason of such conversion are so convertible or exchangeable, registered in such name or names and in such denomination or denominations as such holder has specified.


G. Conversion Price .

 

  (i) The initial Conversion Price shall be $10. In order to prevent dilution of the conversion rights granted under this Section V.G(i) , the Conversion Price shall be subject to adjustment from time to time pursuant to this Section V.G and Sections V.H , V.I , V.J and V.K .

 

  (ii) If and whenever on or after the original date of issuance of Preferred Stock the Corporation issues or sells, or in accordance with Section V.H is deemed to have issued or sold, any shares of Common Stock for a consideration per share less than the Market Price of the Common Stock determined as of the date of such issue or sale, then immediately upon such issue or sale the Conversion Price shall be reduced to the following: the Conversion Price determined by multiplying the Conversion Price in effect immediately prior to such issue or sale by a fraction, the numerator of which shall be the sum of (x) the number of shares of Common Stock Deemed Outstanding immediately prior to such issue or sale multiplied by the Market Price of the Common Stock determined as of the date of such issuance or sale, plus (y) the consideration, if any, received by the Corporation upon such issue or sale, and the denominator of which shall be the product derived by multiplying the Market Price of the Common Stock by the number of shares of Common Stock Deemed Outstanding immediately after such issue or sale.

 

  (iii) Notwithstanding the foregoing, there shall be no adjustment in the Conversion Price as a result of any issue or sale (or deemed issue or sale) of shares of Common Stock to employees, directors, consultants, other service providers or vendors of the Corporation and its Subsidiaries pursuant to stock option plans and stock ownership plans approved by the Board.

H. Effect on Conversion Price of Certain Events . For purposes of determining the adjusted Conversion Price under Section V.G , the following shall be applicable:

 

  (i)

Issuance of Rights or Options . If the Corporation in any manner grants or sells any Options (other than pursuant to Section V.G(iii) ) and the price per share for which Common Stock is issuable upon the exercise of such Options, or upon conversion or exchange of any Convertible Securities issuable upon exercise of such Options, is less than the Market Price of the Common Stock determined as of such time, then the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be deemed to be outstanding and to have been issued and sold by the Corporation at the time of the granting or sale of such Options for such price per share. For purposes of this Section V.H , the “price per share for which Common Stock is issuable” shall be determined by dividing (A) the total amount, if any, received or receivable by the Corporation as consideration for the


  granting or sale of such Options, plus the minimum aggregate amount of additional consideration payable to the Corporation upon exercise of all such Options, plus in the case of such Options which relate to Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable to the Corporation upon the issuance or sale of such Convertible Securities and the conversion or exchange thereof, by (B) the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options. No further adjustment of the Conversion Price shall be made when Convertible Securities are actually issued upon the exercise of such Options or when Common Stock is actually issued upon the exercise of such Options or the conversion or exchange of such Convertible Securities.

 

  (ii) Issuance of Convertible Securities . If the Corporation in any manner issues or sells any Convertible Securities and the price per share for which Common Stock is issuable upon conversion or exchange thereof is less than the Market Price of the Common Stock determined as of such time, then the maximum number of shares of Common Stock issuable upon conversion or exchange of such Convertible Securities shall be deemed to be outstanding and to have been issued and sold by the Corporation at the time of the issuance or sale of such Convertible Securities for such price per share. For the purposes of this Section V.H, the “price per share for which Common Stock is issuable” shall be determined by dividing (A) the total amount received or receivable by the Corporation as consideration for the issue or sale of such Convertible Securities, plus the minimum aggregate amount of additional consideration, if any, payable to the Corporation upon the conversion or exchange thereof, by (B) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities. No further adjustment of the Conversion Price shall be made when Common Stock is actually issued upon the conversion or exchange of such Convertible Securities, and if any such issue or sale of such Convertible Securities is made upon exercise of any Options for which adjustments of the Conversion Price had been or are to be made pursuant to other provisions of this Article Five , no further adjustment of the Conversion Price shall be made by reason of such issue or sale.

 

  (iii) Change in Option Price or Conversion Rate . If the purchase price provided for in any Options, the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities or the rate at which any Convertible Securities are convertible into or exchangeable for Common Stock changes at any time, the Conversion Price in effect at the time of such change shall be immediately adjusted to the Conversion Price which would have been in effect at such time had such Options or Convertible Securities still outstanding provided for such changed purchase price, additional consideration or conversion rate, as the case may be, at the time initially granted, issued or sold.

 

  (iv)

Treatment of Expired Options and Unexercised Convertible Securities . Subject to Section V.G(iii) , upon the expiration of any Option or the termination of any right


  to convert or exchange any Convertible Security without the exercise of any such Option or right, the Conversion Price then in effect hereunder shall be adjusted immediately to the Conversion Price which would have been in effect at the time of such expiration or termination had such Option or Convertible Security, to the extent outstanding immediately prior to such expiration or termination, never been issued.

 

  (v) Calculation of Consideration Received . If any Common Stock, Option or Convertible Security is issued or sold or deemed to have been issued or sold for cash, the consideration received therefor shall be deemed to be the amount received by the Corporation therefor. If any Common Stock, Option or Convertible Security is issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Corporation shall be the fair value of such consideration, except where such consideration consists of securities, in which case the amount of consideration received by the Corporation shall be the Market Price thereof as of the date of receipt. If any Common Stock, Option or Convertible Security is issued to the owners of the non-surviving entity in connection with any merger in which the Corporation is the surviving corporation, the amount of consideration therefor shall be deemed to be the fair value of the portion of the net assets of the non-surviving entity that is attributable to such Common Stock, Option or Convertible Security, as the case may be. The fair value of any consideration or net assets other than cash and securities (and, if applicable, the portions thereof attributable to any such stock or securities) shall be determined jointly by the Corporation and the holders of a majority of the outstanding Preferred Stock. If such parties are unable to reach agreement within a reasonable period of time, the fair value of such consideration shall be determined by an independent appraiser experienced in valuing such type of consideration jointly selected by the Corporation and the holders of a majority of the outstanding Preferred Stock, acting reasonably. The determination of such appraiser shall be final and binding upon the parties, and the fees and expenses of such appraiser shall be borne by the Corporation.

 

  (vi) Integrated Transactions . In case any Option is issued in connection with the issue or sale of other securities of the Corporation, together comprising one integrated transaction in which no specific consideration is allocated to such Option by the parties thereto, the Option shall be deemed to have been issued for a consideration of $0.01.

 

  (vii) Treasury Shares . The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Corporation or any Subsidiary, and the disposition of any shares so owned or held shall be considered an issue or sale of Common Stock.

 

  (viii)

Record Date . If the Corporation takes a record of the holders of Common Stock for the purpose of entitling them (a) to receive a dividend or other distribution payable in Common Stock, Options or in Convertible Securities or (b) to subscribe for or purchase Common Stock, Options or Convertible Securities, then


  such record date shall be deemed to be the date of the issue or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or upon the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.

 

I. Subdivision or Combination of Common Stock . If the Corporation at any time subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its outstanding shares of Common Stock into a greater number of shares, the Conversion Price in effect immediately prior to such subdivision shall be proportionately reduced, and if the Corporation at any time combines (by reverse stock split or otherwise) one or more classes of its outstanding shares of Common Stock into a smaller number of shares, the Conversion Price in effect immediately prior to such combination shall be proportionately increased.

 

J. Reorganization, Reclassification, Consolidation, Merger or Sale . Any recapitalization, reorganization, reclassification, consolidation, merger, sale of all or substantially all of the Corporation’s assets or other transaction, in each case which is effected in such a manner that the holders of Common Stock are entitled to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to or in exchange for Common Stock, is referred to herein as an “ Organic Change ”. Prior to the consummation of any Organic Change, the Corporation shall make appropriate provisions (in form and substance satisfactory to the holders of a majority of Preferred Stock then outstanding) to insure that each of the holders of Preferred Stock shall thereafter have the right to acquire and receive, in lieu of or in addition to (as the case may be) the shares of Conversion Stock immediately theretofore acquirable and receivable upon the conversion of such holder’s Preferred Stock, such shares of stock, securities or assets as such holder would have received in connection with such Organic Change if such holder had converted its Preferred Stock immediately prior to such Organic Change. In each such case (other than Preferred Stock being converted into the right to receive cash), the Corporation shall also make appropriate provisions (in form and substance satisfactory to the holders of a majority of Preferred Stock then outstanding) to insure that the provisions of this Article Five shall thereafter be applicable to Preferred Stock and stock or securities issued with respect thereto. The Corporation shall not effect any such consolidation, merger or sale, unless prior to the consummation thereof, the successor entity (if other than the Corporation) resulting from consolidation or merger or the entity purchasing such assets assumes by written instrument (in form and substance satisfactory to the holders of a majority of Preferred Stock then outstanding), the obligation to deliver to each such holder such shares of stock, securities or assets as, in accordance with the foregoing provisions, such holder may be entitled to acquire.

 

K. Certain Events . If any event occurs of the type contemplated by the provisions of this Article Five but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then the Board shall make an appropriate adjustment in the Conversion Price so as to protect the rights of the holders of Preferred Stock; provided that no such adjustment shall increase the Conversion Price as otherwise determined pursuant to this Article Five or decrease the number of shares of Conversion Stock issuable upon conversion of each Share.


L. Notices .

 

  (i) Immediately upon any adjustment of the Conversion Price, the Corporation shall give written notice thereof to all holders of Preferred Stock, setting forth in reasonable detail and certifying the calculation of such adjustment.

 

  (ii) The Corporation shall give written notice to all holders of Preferred Stock at least ten (10) days prior to the date on which the Corporation closes its books or takes a record (a) with respect to any dividend or distribution upon Common Stock, (b) with respect to any pro rata subscription offer to holders of Common Stock or (c) for determining rights to vote with respect to any Organic Change, dissolution or liquidation.

 

  (iii) The Corporation shall also give written notice to the holders of Preferred Stock at least ten (10) days prior to the date on which any Organic Change shall take place.

 

M. Purchase Rights . If at any time the Corporation grants, issues or sells any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of Common Stock (the “ Purchase Rights ”), then each holder of Preferred Stock shall be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which such holder could have acquired if such holder had held the number of shares of Conversion Stock acquirable upon conversion of such holder’s Preferred Stock immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or if no such record is taken, the date as of which the record holders of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights.

 

N. Definitions .

Affiliate ” means with respect to the Corporation any other Person controlling, controlled by or under common control with the Corporation, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, by contract or otherwise.

Common Stock ” means, collectively, the Corporation’s common stock and any capital stock of any class of the Corporation hereafter authorized which is not limited to a fixed sum or percentage of par or stated value in respect to the rights of the holders thereof to participate in dividends or in the distribution of assets upon any liquidation, dissolution or winding up of the Corporation.

Common Stock Deemed Outstanding ” means, at any given time, the number of shares of Common Stock actually outstanding at such time, plus the number of shares of Common Stock deemed to be outstanding pursuant to Section V.G hereof whether or not the Options or Convertible Securities are actually exercisable at such time, but excluding any shares of Common Stock issuable upon conversion of the Preferred Stock.


Conversion Stock ” means shares of the Corporation’s Common Stock, par value $0.01 per share; provided that if there is a change such that the securities issuable upon conversion of Preferred Stock are issued by an entity other than the Corporation or there is a change in the type or class of securities so issuable, then the term “Conversion Stock” shall mean one share of the security issuable upon conversion of Preferred Stock if such security is issuable in shares, or shall mean the smallest unit in which such security is issuable if such security is not issuable in shares.

Convertible Securities ” means any stock or securities (other than Options) directly or indirectly convertible into or exchangeable for Common Stock.

Junior Securities ” means any capital stock or other equity securities of the Corporation, except for the Preferred Stock or any other class or series of the Corporation’s capital stock which is senior to or pari passu with the Preferred Stock with respect to preference and priority on dividends, redemptions and liquidations as permitted by the terms of the Preferred Stock hereunder or approved by a vote of the holders of the Preferred Stock as provided hereunder.

Liquidation Value ” of any Share shall be equal to $1,000.

Market Price ” of any security means the average of the closing prices of such security’s sales on all securities exchanges on which such security may at the time be listed, or, if there has been no sales on any such exchange on any day, the average of the highest bid and lowest asked prices on all such exchanges at the end of such day, or, if on any day such security is not so listed, the average of the highest bid and lowest asked prices on such day in the domestic over-the-counter market as reported by NASDAQ, or any similar successor organization, in each such case averaged over a period of eleven (11) days consisting of the day as of which “Market Price” is being determined and the ten (10) consecutive business days prior to such day; provided that if such security is listed on any domestic securities exchange, the term ‘‘business days” as used in this sentence means business days on which such exchange is open for trading. If at any time such security is not listed on any securities exchange or quoted in the over-the-counter market, the “Market Price” shall be the fair value thereof determined jointly by the Corporation and the holders of a majority of Preferred Stock (without applying any marketability, minority or other discounts). If such parties are unable to reach agreement within a reasonable period of time, such fair value shall be determined (without applying any marketability, minority or other discounts) by an independent appraiser experienced in valuing securities jointly selected by the Corporation and the holders of a majority of Preferred Stock, acting reasonably. The determination of such appraiser shall be final and binding upon the parties, and the Corporation shall pay the fees and expenses of such appraiser.

Options ” means any rights, warrants or options to subscribe for or purchase Common Stock or Convertible Securities.

Person ” means an individual, a partnership, a corporation, a limited liability company, a limited liability, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.


Public Offering ” means any offering by the Corporation of its capital stock or equity securities to the public pursuant to an effective registration statement under the Securities Act of 1933, as then in effect, or any comparable statement under any similar federal statute then in force.

Redemption Date ” as to any Share means the date specified in the notice of any redemption at the Corporation’s option or the applicable date specified herein in the case of any other redemption; provided that no such date shall be a Redemption Date unless the Liquidation Value of such Share (plus all accrued and unpaid dividends thereon and any required premium with respect thereto) is actually,’ paid in full on such date, and if not so paid in full, the Redemption Date shall be the date on which such amount is fully paid.

Sale of the Company ” means (a) any sale, transfer or issuance or series of sales, transfers and/or issuances of any capital stock of the Corporation by any holders thereof or the Corporation itself which results in any Person or group of Persons (as the term “group” is defined in the Securities Exchange Act of 1934, as amended), other than TPG Growth II, L.P., or any of its Affiliates, acquiring outstanding capital stock of the Corporation possessing a majority of the voting power (under ordinary circumstances) to elect a majority of the Board, or (b) (i) any sale or transfer of all or substantially all of the assets of the Corporation and its Subsidiaries on a consolidated basis in any transaction or series of transactions (other than sales in the ordinary course of business) or (ii) any merger or consolidation to which the Corporation is a party, except for a merger in which the Corporation is the surviving corporation, and after giving effect to such merger, the holders of the Corporation’s outstanding capital stock possessing a majority of the voting power to elect a majority of the Board immediately prior to the merger shall continue to own the Corporation’s outstanding capital stock possessing the voting power to elect a majority of the Board; provided that a Public Offering shall not constitute a Sale of the Company.

Subsidiary ” means, with respect to the Corporation, any corporation, limited liability company, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by the Corporation or one or more of the other Subsidiaries of the Corporation or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by the Corporation or one or more Subsidiaries of the Corporation or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity if such Person or Persons shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or control the managing general partner of such limited liability company, partnership, association or other business entity.


ARTICLE SIX

COMMON STOCK

A. Generally . Except as otherwise required by applicable law, all shares of Common Stock shall be identical in all respects and shall entitle the holders thereof to the same rights and privileges, subject to the same qualifications, limitations and restrictions.

B. Voting Rights . Except as otherwise required by applicable law, all holders of Common Stock shall be entitled to one vote per share of Common Stock on all matters to be voted on by the Corporation’s stockholders.

C. Dividends . As and when dividends are declared or paid with respect to shares of Common Stock, whether in cash, property or securities of the Corporation, the holders of Common Stock shall be entitled to receive such dividends pro rata at the same rate per share. The rights of the holders of Common Stock to receive dividends are subject to the provisions of the Preferred Stock.

D. Liquidation . Subject to the provisions of the Preferred Stock, the holders of Common Stock shall be entitled to participate pro rata at the same rate per share in all distributions to the holders of Common Stock in any liquidation, dissolution or winding up of the Corporation.

ARTICLE SEVEN

REGISTRATION OF TRANSFER AND REPLACEMENT

The Corporation shall keep at its principal office (or such other place as the Corporation reasonably designates) a register for the registration of shares of each class of its capital stock. Upon the surrender of any certificate representing shares of any class of capital stock at such place, the Corporation shall, at the request of the registered holder of such certificate, execute and deliver a new certificate or certificates in exchange therefor representing in the aggregate the number of shares of such class represented by the surrendered certificate, and the Corporation forthwith shall cancel such surrendered certificate. Each such new certificate will represent such number of shares of such series as is requested by the holder of the surrendered certificate and will be substantially identical in form to the surrendered certificate. Subject to any other restrictions on transfer to which such holder or such shares may be bound, the Corporation will also register such new certificate in such name as requested by the holder of the surrendered certificate.

Upon receipt of evidence reasonably satisfactory to the Corporation (an affidavit of the registered holder will be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing one or more shares of any class of capital stock, and in the case of any such loss, theft or destruction, upon receipt of indemnity reasonably satisfactory to the Corporation ( provided , however , that if the holder is a financial institution or other institutional investor, its own agreement will be satisfactory), or, in the case of any such mutilation upon surrender of such certificate, the Corporation shall (at its expense) execute and deliver in lieu of such number of shares of such series represented by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate.


ARTICLE EIGHT

PERPETUAL EXISTENCE

The Corporation shall have perpetual existence.

ARTICLE NINE

AMENDMENT OF BYLAWS

In furtherance and not in limitation of the powers conferred by statute, the Board is expressly authorized to make, alter, adopt, amend or repeal the Bylaws of the Corporation.

ARTICLE TEN

MEETINGS

Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws of the Corporation may provide. The books of the Corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the Board or as set forth in the Bylaws of the Corporation. Election of directors need not be by written ballot unless the Bylaws of the Corporation so provide.

ARTICLE ELEVEN

FIDUCIARY DUTIES

Except to the extent that the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended, prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director. Any amendment or repeal of this Article Eleven shall not adversely affect any right or protection of a director of the Corporation under the General Corporation Law of the State of Delaware existing at the time of such repeal or modification, and shall not apply to or have any effect on the liability or alleged liability of any director with respect to any acts or omissions of such directors occurring prior to such amendment or repeal.

ARTICLE TWELVE

SECTION 203 OF GENERAL CORPORATION LAW

The Corporation expressly elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware.


ARTICLE THIRTEEN

AMENDMENT

The Corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation in the manner now or hereafter prescribed herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation; provided that if any such amendment, alteration, change or repeal would adversely affect in any material respect the rights, preferences or privileges of any class of the Corporation’s capital stock, such amendment, alteration, change or repeal shall also require the written consent of the holders of a majority of the shares of such adversely affected class of capital stock; provided , further that if any such amendment, alteration, change or repeal would, individually or in the aggregate, adversely affect in any material respect the rights, preferences or privileges of any Non-TPG Shares (without regard to any effect on the individual circumstances of the holder of such Non-TPG Shares) disproportionately to the effect of such amendment, alteration, change or repeal on the rights, preferences or privileges of the TPG Shares, such amendment, alteration, change or repeal shall also require the written consent of the holders of a majority of the Non-TPG Shares. “ TPG Shares ” and “ Non-TPG Shares ” shall have the meanings ascribed to them in that certain Stockholders Agreement, dated as of January 31, 2014, by and among the Corporation and the stockholders party thereto.

ARTICLE FOURTEEN

OTHER BUSINESS OF THE STOCKHOLDERS

A. Generally . Each stockholder or any of its Affiliates may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Corporation or any Subsidiary thereof, and the Corporation, any Subsidiary of the Corporation, the directors of the Corporation, the directors of any Subsidiary of the Corporation and the other stockholders shall have no rights by virtue of this certificate of incorporation in and to such ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if competitive with the business of the Corporation or any Subsidiary thereof, shall not be deemed wrongful or improper.

B. TPG . In recognition that TPG elf Holdings, L.P. (“ TPG ”) and its Affiliates have access to information about the Corporation and its Subsidiaries that will enhance such persons’ knowledge and understanding of the industries in which the Corporation and its Subsidiaries operate, and currently have and will in the future have or will consider acquiring, investments in numerous companies with respect to which TPG and its Affiliates may serve as an advisor, a director or in some other capacity, and in recognition that TPG and its Affiliates have myriad duties to various investors and partners, and in anticipation that the Corporation, on the one hand, and TPG and its Affiliates, on the other hand, may engage in the same or similar activities or lines of business and have an interest in the same areas of corporate opportunities, and in recognition of the benefits to be derived by the Corporation hereunder, except as TPG may otherwise agree in writing:

 

  (i)

TPG and its Affiliates or their, respective, employees, consultants, directors, partners, members and agents (collectively the “ Associates ”) will have the right:


  (A) to directly or indirectly engage in any business (including, without limitation, any business activities or lines of business that are the same as or similar to those pursued by, or competitive with, the Corporation and its Subsidiaries), (B) to directly or indirectly do business with any client or customer of the Corporation or its Subsidiaries, (C) to take any other action that TPG or its Associates believes in good faith is necessary to or appropriate to fulfill its obligations to third parties and (D) not to communicate or present potential transactions, matters or business opportunities to the Corporation or its Subsidiaries, and to pursue, directly or indirectly, any such opportunity for itself, and to direct any such opportunity to another person or entity;

 

  (ii) TPG and its Associates will have no duty (contractual or otherwise) to communicate or present any corporate opportunities to the Corporation or its Affiliates or to refrain from any actions specified above, and the Corporation, on their own behalf and on behalf of their affiliates, hereby renounce and waive any right to require TPG or its Associates to act in a manner inconsistent with the provisions of this Section XIV.B(ii) ;

 

  (iii) none of TPG nor any of its Associates will be liable to the Corporation or any of its Affiliates for breach of any duty (contractual or otherwise) by reason of any activities or omissions of the types referred to in this Section XIV.B or of any such person’s or entity’s participation therein; and

 

  (iv) there is no restriction on TPG or its Associates from using such knowledge and understanding in making investment, voting, monitoring, governance or other decisions relating to other entities or securities;

provided , however , notwithstanding the foregoing, if TPG or any of its Affiliates learn of a corporate or business opportunity from the Company, neither TPG, TPG Growth II, L.P. nor any of their controlled Affiliates shall communicate, present or direct such opportunity to third parties or pursue, directly or indirectly, any such opportunity for itself unless the Company determines not to pursue such opportunity.


J.A. COSMETICS HOLDINGS, INC.

CERTIFICATE OF AMENDMENT TO THE

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

J.A. Cosmetics Holdings, Inc. (the “ Company ”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “ DGCL ”), certifies that:

1. The name of the Company is J.A. Cosmetics Holdings, Inc. The Company’s original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on December 20, 2013.

2. The Company’s Amended and Restated Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 31, 2014 (the “ Restated Certificate ”), is hereby amended by replacing Article One thereof with the following new Article One:

ARTICLE ONE

NAME OF THE CORPORATION

The name of the corporation is e.l.f. Beauty, Inc. (the “ Corporation ”).”

3. All other provisions of the Restated Certificate shall remain in full force and effect.

4. This amendment has been duly adopted by the Board of Directors of the Company in accordance with the applicable provisions of Section 242 of the DGCL.

(Signature page follows)


IN WITNESS WHEREOF , the Company has caused this Certificate of Amendment to the Amended and Restated Certificate of Incorporation to be executed by its duly authorized officer on April 26, 2016.

 

      J.A. COSMETICS HOLDINGS, INC.
      /s/ Tarang Amin
      Tarang Amin
      Chief Executive Officer

Exhibit 3.3

e.l.f. Beauty, Inc.

Amended and Restated Certificate of Incorporation

e.l.f. Beauty, Inc., a corporation organized and existing under and by virtue of the Delaware General Corporation Law, hereby certifies as follows:

The name of the corporation is e.l.f. Beauty, Inc. The original Certificate of Incorporation of the corporation was filed with the Secretary of State of the State of Delaware on December 20, 2013 under the name J.A. Cosmetics Holdings, Inc. The corporation’s Amended and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on January 31, 2014. A Certificate of Amendment to the Amended and Restated Certificate of Incorporation was filed on April 26, 2016. A Second Certificate of Amendment to the Amended and Restated Certificate of Incorporation was filed on [ ● ], 2016.

The Amended and Restated Certificate of Incorporation in the form of Exhibit A attached hereto has been duly adopted in accordance with the provisions of Sections 242, 245 and 228 of the Delaware General Corporation Law.

The text of the Amended and Restated Certificate of Incorporation as heretofore amended or supplemented is hereby restated and further amended to read in its entirety as set forth in Exhibit A attached hereto.

This Amended and Restated Certificate of Incorporation shall be effective as of [8:00 a.m.] Eastern Time on [ ● ], 2016.

IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation has been signed this [ ● ] day of [ ● ], 2016.

 

e.l.f. Beauty, Inc.
By:  

 

  Tarang P. Amin
  Chief Executive Officer


EXHIBIT A

Amended and Restated Certificate of Incorporation of

e.l.f. Beauty, Inc.

ARTICLE I

NAME

The name of the corporation is e.l.f. Beauty, Inc. (the “ Corporation ”).

ARTICLE II

REGISTERED OFFICE AND AGENT

The address of the Corporation’s registered office in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle, 19801. The name of its registered agent at such address is The Corporation Trust Company.

ARTICLE III

PURPOSE AND DURATION

The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the Delaware General Corporation Law. The Corporation is to have a perpetual existence.

ARTICLE IV

CAPITAL STOCK

Section 1. This Corporation is authorized to issue two classes of capital stock which shall be designated, respectively, “Common Stock” and “Preferred Stock.” The total number of shares that the Corporation is authorized to issue is Two Hundred Eighty Million (280,000,000), of which Two Hundred Fifty Million (250,000,000) shares shall be Common Stock and Thirty Million (30,000,000) shares shall be Preferred Stock. The Common Stock shall have a par value of $0.01 per share and the Preferred Stock shall have a par value of $0.01 per share. Subject to the rights of the holders of any series of Preferred Stock, the number of authorized shares of any of the Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation with the power to vote thereon irrespective of the provisions of Section 242(b)(2) of the Delaware General Corporation Law or any successor provision thereof, and no vote of the holders of any of the Common Stock or Preferred Stock voting separately as a class shall be required therefor.

Section 2. Shares of Preferred Stock may be issued from time to time in one or more series. The Board of Directors of the Corporation (the “ Board of Directors ”) is hereby authorized to provide from time to time by resolution or resolutions for the creation and issuance, out of the authorized and unissued shares of Preferred Stock, of one or more series of Preferred Stock by filing a certificate (a “ Certificate of Designation ”) pursuant to the Delaware General Corporation Law, setting forth such resolution and, with respect to each such series, establishing the designation of such series and the number of shares to be included in such series and fixing the voting powers (full or limited, or no voting power), preferences and relative, participating, optional or other special rights, and the qualifications, limitations and restrictions thereof, of the


shares of each such series. Without limiting the generality of the foregoing, the resolution or resolutions providing for the establishment of any series of Preferred Stock may, to the extent permitted by law, provide that such series shall be superior to, rank equally with or be junior to the Preferred Stock of any other series. The powers, preferences and relative, participating, optional and other special rights of each series of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may be different from those of any and all other series at any time outstanding. Except as otherwise expressly provided in the resolution or resolutions providing for the establishment of any series of Preferred Stock, no vote of the holders of shares of Preferred Stock or Common Stock shall be a prerequisite to the issuance of any shares of any series of the Preferred Stock so authorized in accordance with this Amended and Restated Certificate of Incorporation. Unless otherwise provided in the Certificate of Designation establishing a series of Preferred Stock, the Board of Directors may, by resolution or resolutions, increase or decrease (but not below the number of shares of such series then outstanding) the number of shares of such series and, if the number of shares of such series shall be so decreased, the shares constituting such decrease shall resume the status that they had prior to the adoption of the resolution originally fixing the number of shares of such series.

ARTICLE V

BOARD OF DIRECTORS

For the management of the business and for the conduct of the affairs of the Corporation it is further provided that:

Section 1.

(a) The management of the business and the conduct of the affairs of the Corporation shall be vested in the Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed exclusively by one or more resolutions adopted from time to time by the Board of Directors. Except as otherwise expressly delegated by resolution of the Board of Directors, the Board of Directors shall have the exclusive power and authority to appoint and remove officers of the Corporation.

(b) Other than any directors elected by the separate vote of the holders of one or more series of Preferred Stock, the Board of Directors shall be and is divided into three classes, designated as Class I, Class II and Class III, as nearly equal in number as possible. Directors shall be assigned to each class in accordance with a resolution or resolutions adopted by the Board of Directors. At the first annual meeting of stockholders following the effectiveness of this Amended and Restated Certificate of Incorporation (the “ Qualifying Record Date ”), the term of office of the Class I directors shall expire and Class I directors shall be elected for a full term of three years. At the second annual meeting of stockholders following the Qualifying Record Date, the term of office of the Class II directors shall expire and Class II directors shall be elected for a full term of three years. At the third annual meeting of stockholders following the Qualifying Record Date, the term of office of the Class III directors shall expire and Class III directors shall be elected for a full term of three years. Subject to the special rights of the holders of one or more series of Preferred Stock to elect directors, at each succeeding annual meeting of stockholders, directors shall be elected for a full term of three years to succeed the directors of the class whose terms expire at such annual meeting.

Notwithstanding the foregoing provisions of this Article V Section 1(b), each director shall serve until his or her successor is duly elected and qualified or until his or her earlier death, resignation, disqualification, retirement or removal. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.

 

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(c) Subject to the special rights of the holders of one or more series of Preferred Stock to elect directors, the Board of Directors or any individual director may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of at least seventy-five percent (75%) of the voting power of all the then outstanding shares of voting stock of the Corporation with the power to vote at an election of directors (the “ Voting Stock ”); provided, however, that prior to the Trigger Event, any individual director may be removed with or without cause by the holders of the majority of the voting power of all the then-outstanding shares of the Voting Stock, voting together as a single class, subject to the terms of the Stockholders Agreement (so long as such agreement remains in effect).

(d) Subject to the special rights of the holders of one or more series of Preferred Stock to elect directors, any vacancies on the Board of Directors resulting from death, resignation, disqualification, retirement, removal or other causes and any newly created directorships resulting from any increase in the number of directors shall, unless the Board of Directors determines by resolution that any such vacancies or newly created directorships shall be filled by the stockholders, and except as otherwise provided by law, be filled only by the affirmative vote of a majority of the directors then in office, even though less than a quorum, or by a sole remaining director, and shall not be filled by the stockholders.

Any director appointed in accordance with the preceding sentence shall hold office for a term that shall coincide with the remaining term of the class to which the director shall have been appointed and until such director’s successor shall have been elected and qualified or until his or her earlier death, resignation, disqualification, retirement or removal.

Section 2.

(a) In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, alter or repeal the Bylaws of the Corporation, subject to the power of the stockholders of the Corporation entitled to vote with respect thereto to make, alter or repeal the Bylaws of the Corporation; provided, that with respect to the powers of stockholders entitled to vote with respect thereto to make, alter or repeal the Bylaws of the Corporation, from and after the Trigger Event, in addition to any other vote otherwise required by law, the affirmative vote of the holders of at least seventy-five percent (75%) of the voting power of all the then-outstanding shares of the Voting Stock, voting together as a single class, shall be required to make, alter or repeal the Bylaws of the Corporation.

(b) The directors of the Corporation need not be elected by written ballot unless the Bylaws so provide.

(c) Except as may otherwise be set forth in the resolution or resolutions of the Board of Directors providing for the issuance of one or more series of Preferred Stock, and then only with respect to such series of Preferred Stock, cumulative voting in the election of directors is specifically denied.

ARTICLE VI

STOCKHOLDERS

Section 1. Subject to the special rights of the holders of one or more series of Preferred Stock, from and after the Trigger Event, any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of the stockholders of the Corporation, and the taking of any action by written consent of the stockholders in lieu of a meeting of the stockholders is specifically denied.

 

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Section 2. Subject to the special rights of the holders of one or more series of Preferred Stock, special meetings of the stockholders of the Corporation may be called, for any purpose or purposes, at any time by the Board of Directors, but such special meetings may not be called by stockholders or any other person or persons. Notwithstanding the immediately preceding sentence, prior to the Trigger Event, special meetings of stockholders of the Corporation may be called by the Secretary of the Corporation at the request of the TPG Investor.

Section 3. Advance notice of stockholder nominations for the election of directors and of other business proposed to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws of the Corporation.

Section 4. The Corporation hereby elects not to be governed by Section 203 of the Delaware General Corporation Law, as now in effect or hereafter amended, or any successor statute thereto (the “ Delaware Takeover Statute ”) until such time as the Trigger Event occurs, whereupon the Corporation will, after the occurrence of the Trigger Event, be governed by the Delaware Takeover Statute.

ARTICLE VII

LIABILITY AND INDEMNIFICATION

Section 1. To the fullest extent permitted by the Delaware General Corporation Law, as the same exists or as may hereafter be amended, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. If the Delaware General Corporation Law is amended after approval by the stockholders of this Article VII to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law as so amended, automatically and without further action, upon the date of such amendment.

Section 2. The Corporation, to the fullest extent permitted by law, shall indemnify and advance expenses to any person made or threatened to be made a party to an action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he or she, or his or her testator or intestate, is or was a director or officer of the Corporation or any predecessor of the Corporation, or serves or served at any other enterprise as a director or officer at the request of the Corporation or any predecessor to the Corporation.

Section 3. The Corporation, to the fullest extent permitted by law, may indemnify and advance expenses to any person made or threatened to be made a party to an action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he or she, or his or her testator or intestate, is or was an employee or agent of the Corporation or any predecessor of the Corporation, or serves or served at any other enterprise as an employee or agent at the request of the Corporation or any predecessor to the Corporation.

Section 4. Neither any amendment nor repeal of this Article VII, nor the adoption by amendment of this certificate of incorporation of any provision inconsistent with this Article VII, shall eliminate or reduce the effect of this Article VII in respect of any matter occurring, or any action or proceeding accruing or arising (or that, but for this Article VII, would accrue or arise) prior to such amendment or repeal or adoption of an inconsistent provision.

 

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ARTICLE VIII

EXCLUSIVE FORUM

Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery (the “ Chancery Court ”) of the State of Delaware (or, in the event that the Chancery Court does not have jurisdiction, the federal district court for the District of Delaware or other state courts of the State of Delaware) shall, to the fullest extent permitted by law, be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or to the Corporation’s stockholders, (c) any action arising pursuant to any provision of the Delaware General Corporate Law or the Bylaws or this Amended and Restated Certificate of Incorporation (as either may be amended from time to time) or (d) any action asserting a claim against the Corporation governed by the internal affairs doctrine. If any action the subject matter of which is within the scope of the preceding sentence is filed in a court other than a court located within the State of Delaware (a “ Foreign Action ”) in the name of any stockholder, such stockholder shall be deemed to have consented to (i) the personal jurisdiction of the state and federal courts located within the State of Delaware in connection with any action brought in any such court to enforce the preceding sentence and (ii) having service of process made upon such stockholder in any such action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder.

ARTICLE IX

CERTAIN STOCKHOLDER RELATIONSHIPS

Section 1. Because the TPG Investor is currently a stockholder of the Corporation and/or is entitled pursuant to the Stockholders Agreement with the right to designate members of the Board of Directors, and in anticipation that the Corporation and the TPG Investor and its respective Affiliates may engage in similar activities or lines of business and/or have an interest in the same areas of corporate opportunities, and in recognition of (i) the benefits to be derived by the Corporation through its continued contractual, corporate and business relations with the TPG Investor and its respective Affiliates (including the service of employees, officers or directors of the TPG Investor and its respective Affiliates as directors of the Corporation) and (ii) the potential difficulties attendant to any director fulfilling the full scope of such director’s fiduciary duties in any particular situation, the provisions of this Article IX are set forth to regulate, define and guide (a) the conduct of certain activities of the Corporation as such activities may involve the TPG Investor and its respective Affiliates and their respective officers and directors, and (b) the powers, rights, duties and liabilities of the Corporation and its officers, directors and stockholders in connection therewith. Any member of the Board of Directors designated by the TPG Investor pursuant to the Stockholders Agreement may consider both the interests of such TPG Investor and such TPG Investor’s obligations under the Stockholders Agreement in exercising such Board of Directors member’s powers, rights and duties as a director of the Corporation.

Section 2.

(a) Subject to Section 3 hereof and any contractual obligations by which the Corporation or the TPG Investor may be bound from time to time, none of the TPG Investor nor its respective Affiliates shall have a duty to refrain from engaging, directly or indirectly, in the same or similar business activities or lines of business as the Corporation or any of the Corporation’s Affiliates, including those business activities or lines of business deemed to be competing with the Corporation or any of the Corporation’s Affiliates. To the fullest extent permitted by law none of the TPG Investor nor its respective Affiliates, nor any of their respective officers or directors, shall be liable to the Corporation or its stockholders, or to any Affiliate of the Corporation or such Affiliate’s stockholders or members, for breach of any fiduciary duty, solely by reason of any such activities of the TPG Investor or its respective Affiliates, or of the participation therein by any officer or director of TPG Investor or its respective Affiliates.

 

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(b) To the fullest extent permitted by law, but subject to any contractual obligations by which the Corporation or the TPG Investor may be bound from time to time, none of the TPG Investor nor its respective Affiliates shall have a duty to refrain from doing business with any client, customer or vendor of the Corporation or any of the Corporation’s Affiliates, and without limiting Section 3 hereof, none of the TPG Investor nor its respective Affiliates nor any of their respective officers, directors or employees shall be deemed to have breached his, her or its fiduciary duties, if any, to the Corporation or its stockholders or to any Affiliate of the Corporation or such Affiliate’s stockholders or members solely by reason of engaging in any such activity.

Section 3. Subject to any contractual provisions by which the Corporation or the TPG Investor or their respective Affiliates may be bound from time to time, in the event that the TPG Investor or its respective Affiliates or any of their respective officers, directors or employees, acquires knowledge of a potential transaction or other matter which may be a corporate opportunity for the TPG Investor (or any of its respective Affiliates), on the one hand, and the Corporation (or any of its Affiliates), on the other hand, none of the TPG Investor nor its respective Affiliates, officers, directors or employees shall have any duty to communicate or offer such corporate opportunity to the Corporation or any of its Affiliates, and to the fullest extent permitted by law, none of the TPG Investor nor its respective Affiliates, officers, directors or employees shall be liable to the Corporation or its stockholders, or any Affiliate of the Corporation or such Affiliate’s stockholders or members, for breach of any fiduciary duty or otherwise, solely by reason of the fact that the TPG Investor or any of its Affiliates, officers, directors or employees acquires, pursues or obtains such corporate opportunity for itself, directs such corporate opportunity to another person, or otherwise does not communicate information regarding such corporate opportunity to the Corporation or any of its Affiliates, and the Corporation (on behalf of itself and its Affiliates and their respective stockholders and Affiliates) to the fullest extent permitted by law hereby waives and renounces in accordance with Section 122(17) of the Delaware General Corporation Law any claim that such business opportunity constituted a corporate opportunity that should have been presented to the Corporation or any of its Affiliates.

Section 4. Any person purchasing or otherwise acquiring any interest in any shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article IX. Neither the alteration, amendment or repeal of this Article IX, nor the adoption of any provision of this Amended and Restated Certificate of Incorporation inconsistent with this Article IX, nor, to the fullest extent permitted by Delaware law, any modification of law, shall eliminate or reduce the effect of this Article IX in respect of any business opportunity first identified or any other matter occurring, or any cause of action, suit or claim that, but for this Article IX, would accrue or arise, prior to the effective date of such alteration, amendment, repeal, adoption or modification.

ARTICLE X

AMENDMENTS

The Corporation reserves the right to amend, alter, change or repeal (whether directly, by the filing of a certificate of designations, powers, preferences, rights or privileges, by a Change of Control or otherwise) any provision contained in this Amended and Restated Certificate of Incorporation, in the manner now or hereafter prescribed by this Amended and Restated Certificate of Incorporation and the Delaware General Corporation Law, and all rights, preferences and privileges herein conferred upon stockholders by and pursuant to this Certificate in its present form or as hereafter amended are granted subject to the right reserved in this Article X. Notwithstanding the foregoing, from and after the Trigger Event, notwithstanding any other provisions of this Amended and Restated Certificate of Incorporation or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of the Voting Stock required by law or by this Amended and Restated Certificate of Incorporation (including any Certificate of Designation in respect of one or more series of Preferred Stock), the affirmative vote of the holders of at least seventy-five percent (75%) of the voting power of all of the then-outstanding shares of the Voting Stock, voting together as a single class, shall be required to alter, amend or repeal Articles V, VI, VII, VIII and IX and this Article X.

 

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ARTICLE XI

DEFINITIONS

As used in this Amended and Restated Certificate of Incorporation, unless the context requires otherwise, the term:

“Affiliate” means, with respect to any Person, any other Person that controls, is controlled by, or is under common control with such Person. For the purposes of this definition, “control,” when used with respect to any person, means the power to direct or cause the direction of the affairs or management of that person, whether through the ownership of voting securities, as trustee (or the power to appoint a trustee), personal representative or executor, by contract, credit arrangement or otherwise and “controlled” and “controlling” have meanings correlative to the foregoing.

“Change of Control” shall mean any proposed consolidation, merger or share exchange of the Corporation or any sale, lease or other transfer of all or substantially all of the consolidated assets of the Corporation and its subsidiaries, taken as a whole, to any Person other than one or more of the Corporation’s subsidiaries.

“Person” means any individual, general partnership, limited partnership, limited liability company, corporation, trust, business trust, joint stock company, joint venture, unincorporated association, cooperative or association or any other legal entity or organization of whatever nature, and shall include any successor (by merger or otherwise) of such entity.

“Principal Stockholders” means each of (i) the TPG Investor and (ii) the Shamah Investors.

“Shamah Investors” means collectively, (i) J.A. Cosmetics, Corp., (ii) Joseph Shamah, (iii) Alan Shamah and (iv) each Affiliate of any of the foregoing that is party to the Stockholders Agreement.

“Stockholders Agreement” means that certain amended and restated stockholders agreement dated as of [            ], 2016, by and among (i) the Corporation, (ii) the TPG Investor, (iii) the Shamah Investors and (iv) each of the other parties thereto, as such may be amended from time to time.

“TPG Investor” means TPG elf Holdings, L.P., a Delaware limited partnership, and its successors and Affiliates.

“Trigger Event” means the first date on which the Principal Stockholders cease collectively to beneficially own (directly or indirectly) more than 50% of the voting power of the outstanding shares of Common Stock. For the purpose of this Amended and Restated Certificate of Incorporation, “beneficial ownership” shall be determined in accordance with Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended.

* * * *

 

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Exhibit 3.4

SECOND AMENDED AND RESTATED BYLAWS

OF

J.A. COSMETICS HOLDINGS, INC.

A Delaware corporation

(Adopted as of August 11, 2015)

ARTICLE I

OFFICES

Section 1 Registered Office and Agent . The address of the registered office of the corporation in the State of Delaware is located at Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801. The registered agent of the corporation for service of process at such address is The Corporation Trust Company. The registered office and/or registered agent of the corporation may be changed from time to time by action of the board of directors.

Section 2 Other Offices . The corporation may also have offices at such other places, both within and without the State of Delaware, as the board of directors may from time to time determine or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 1 Meetings Generally . At least one meeting of the stockholders shall be held each year for the purpose of electing directors and conducting any other proper business as may come before the meeting. The date, time and place of such meeting shall be determined by the highest ranking officer then in office (the “ Ranking Officer ”); provided , however , that if the Ranking Officer does not act, the board of directors shall determine the date, time and place of such meeting. Notwithstanding the foregoing, no annual meeting of stockholders need be held if not required by the Certificate of Incorporation, as the same may be amended or amended and restated from time to time (the “ Certificate of Incorporation ”), or by the General Corporation Law of the State of Delaware.

Section 2 Special Meetings . Special meetings of the stockholders may be called for any purpose (including, without limitation, the filling of board vacancies and newly created directorships) and may be held at such time and place as shall be stated in a written notice of meeting or in a duly executed waiver of notice thereof. Such meetings may be called at any time by the board of directors or the Ranking Officer and shall be called by the Ranking Officer upon the written request of holders of shares entitled to cast not less than a majority of the votes at the meeting, which written request shall state the purpose or purposes of the meeting and shall be delivered to the Ranking Officer. On such written request, the Ranking Officer shall fix a date and time for such meeting within two days of the date requested for such meeting in such written request.


Section 3 Place of Meetings . The board of directors may designate any place, either within or without the State of Delaware as the place of meeting for any regular meeting or for any special meeting called by the board of directors. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal executive office of the corporation.

Section 4 Notice . Whenever stockholders are required or permitted to take action at a meeting, written or printed notice stating the place, date, time, and. in the case of special meetings, the purpose or purposes, of such meeting, shall be given to each stockholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days before the date of the meeting. All such notices shall be delivered, either personally, by mail, or by a form of electronic transmission consented to by the stockholder to whom the notice is given, by or at the direction of the board of directors, the chief executive officer, the president or the secretary, and if mailed, such notice shall be deemed to be delivered (i) upon confirmation of receipt if sent by facsimile, electronic mail or personal delivery or (ii) three (3) days after being deposited in the United States mail, postage prepaid, addressed to the stockholder at his, her or its address as the same appears on the records of the corporation. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.

Section 5 Stockholders List . The officer having charge of the stock ledger of the corporation shall make, at least ten (10) days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to any meeting either at a place within the city where the meeting is to be held which place shall be specified in the notice of the meeting or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

Section 6 Quorum . The holders of a majority of the issued and outstanding shares of capital stock entitled to vote at such meeting, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders, except as otherwise provided by statute or by the Certificate of Incorporation. If a quorum is not present, the holders of a majority of the shares present in person or represented by proxy at the meeting, and entitled to vote at the meeting, may adjourn the meeting to another time and/or place. When a quorum is once present to commence a meeting of stockholders, it is not broken by the subsequent withdrawal of any stockholders or their proxies.

Section 7 Adjourned Meetings . When a meeting is adjourned to another time and place, notice need not be given of the adjourned meeting if the time and place thereof, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.


Section 8 Vote Required . When a quorum is present, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless the question is one upon which by express provisions of an applicable law or of the Certificate of Incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question.

Section 9 Voting Rights . Except as otherwise provided by the General Corporation Law of the State of Delaware or by the Certificate of Incorporation and subject to Section 3 of Article VI hereof, every stockholder shall at every meeting of the stockholders be entitled to one (1) vote in person or by proxy for each share of common stock held by such stockholder.

Section 10 Proxies . Each stockholder entitled to vote at a meeting of the stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him or her by proxy, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. Any proxy is suspended when the person executing the proxy is present at a meeting of the stockholders and elects to vote, except that when such proxy is coupled with an interest and the fact of the interest appears on the face of the proxy, the agent named in the proxy shall have all voting and other rights referred to in the proxy, notwithstanding the presence of the person executing the proxy. At each meeting of the stockholders, and before any voting commences, all proxies filed at or before the meeting shall be submitted to and examined by the secretary or a person designated by the secretary, and no shares may be represented or voted under a proxy that has been found to be invalid or irregular.

Section 11 Action by Written Consent . Unless otherwise provided in the Certificate of Incorporation, any action required to be taken at any regular or special meeting of the stockholders of the corporation, or any action which may be taken at any regular or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken and bearing the dates of signature of the stockholders who signed the consent or consents, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the state of Delaware, to the corporation’s principal place of business, or to an officer or agent of the corporation having custody of the book or books in which proceedings of meetings of the stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested, by reputable overnight courier service, or by electronic mail, with confirmation of receipt. All consents properly delivered in accordance with this section shall be deemed to be recorded when so delivered. No written consent shall be effective to take the corporate action referred to therein unless, within sixty (60)


days of the earliest dated consent delivered to the corporation as required by this section, written consents signed by the holders of a sufficient number of shares to take such corporate action are so recorded. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Any action taken pursuant to such written consent or consents of the stockholders shall have the same force and effect as if taken by the stockholders at a meeting thereof.

Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used; provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.

ARTICLE III

DIRECTORS

Section 1 General Powers . The business and affairs of the corporation shall be managed by or under the direction of the board of directors.

Section 2 Number, Election and Term of Office . The number of directors which shall constitute the first board shall be four (4). The number of directors shall be subject to change by the vote of holders of a majority of the shares then entitled to vote at an election of directors. The directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote in the election of directors. The directors shall be elected in this manner at any meeting of the stockholders, except as provided in Section 4 of this Article III . Each director elected shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.

Section 3 Removal and Resignation . The directors shall only be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors. Whenever the holders of any class or series are entitled to elect one or more directors by the provisions of the Certificate of Incorporation, the provisions of this Section shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole. Any director may resign at any time upon written notice to the corporation.

Section 4 Vacancies . Vacancies and newly created directorships resulting from any increase in the authorized number of directors shall be filled in the same manner in which directors are elected pursuant to Section 2 of this Article III. Notwithstanding the foregoing, any such vacancy shall automatically reduce the number of directors pro tanto , until such time as the holders of the class of capital stock which was entitled to elect the director whose office is vacant shall have exercised their right to elect a director to fill such vacancy, whereupon the number of directors shall be automatically increased pro tanto . Each director so chosen shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as herein provided.


Section 5 Meetings and Notice . Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by resolution of the board, provided that the directors shall meet at least once per year. Special meetings of the board of directors may be called by or at the request of any two (2) directors or the Ranking Officer on at least twenty-four (24) hours notice to each director, either personally, by telephone, by mail, or by facsimile or electronic mail.

Section 6 Quorum, Required Vote and Adjournment . Each director shall be entitled to one vote except as otherwise provided in the Certificate of Incorporation. Directors then in office (and specifically excluding any vacancies) and holding a majority of the votes of all directors (or such greater number required by applicable law) shall constitute a quorum for the transaction of business. The vote of directors holding a majority of votes present at a meeting at which a quorum is present shall be the act of the board of directors. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

Section 7 Committees . The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which to the extent provided in such resolution or these bylaws shall have and may exercise the powers of the board of directors in the management and affairs of the corporation except as otherwise limited by law. The board of directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.

Section 8 Committee Rules . Each committee of the board of directors may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the board of directors designating such committee. Unless otherwise provided in such a resolution, the presence of at least a majority of the members of the committee shall be necessary to constitute a quorum. In the event that a member and that member’s alternate, if alternates are designated by the board of directors as provided in Section 7 of this Article III, of such committee is or are absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of any such absent or disqualified member.

Section 9 Communications . Members of the board of directors or any committee thereof may participate in and act at any meeting of such board or committee through the use of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in the meeting pursuant to this Section shall constitute presence in person at the meeting.


Section 10 Waiver of Notice and Presumption of Consent . Any member of the board of directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting except when such member attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Such member shall be conclusively presumed to have consented to any action taken unless his or her dissent shall be entered in the minutes of the meeting or unless his or her written dissent to such action shall be filed with the person acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action.

Section 11 Action by Written Consent . Unless otherwise restricted by the Certificate of Incorporation, any action required or permitted to be taken at any meeting of the board of directors, or of any committee thereof, may be taken without a meeting if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee.

ARTICLE IV

OFFICERS

Section 1 Number . The officers of the corporation shall be elected by the board of directors and may consist of a chairman of the board, chief executive officer, president, chief financial officer, one or more vice presidents, secretary, a treasurer, and such other officers and assistant officers as may be deemed necessary or desirable by the board of directors. Any number of offices may be held by the same person. In its discretion, the board of directors may choose not to fill any office for any period as it may deem advisable, except that the offices of president and secretary shall be filled as expeditiously as possible.

Section 2 Election and Term of Office . The officers of the corporation shall be elected at any meeting of the board of directors. Vacancies may be filled or new offices created and filled at any meeting of the board of directors. Each officer shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.

Section 3 Removal . Any officer elected by the board of directors may be removed by the board of directors whenever in its judgment, the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.

Section 4 Vacancies . Any vacancy occurring in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the board of directors for the unexpired portion of the term by the board of directors then in office.

Section 5 Compensation . Compensation of all officers shall be fixed by the board of directors, and no officer shall be prevented from receiving such compensation by virtue of his or her also being a director of the corporation.

Section 6 Chairman of the Board . The chairman of the board, if one is appointed, shall have the powers and perform the duties incident to that position. Subject to the powers of the board of directors and of the president, he shall be in the general and active charge of the


entire business and affairs of the corporation. He shall preside at meetings of the board of directors and stockholders at which the president is not present, and shall have such other powers and perform such other duties as may be prescribed by the board of directors or provided in these bylaws. Whenever the president is unable to serve, by reason of disability (as defined in any employment agreement or if there is not an employment agreement, by the corporation’s disability policy), absence or otherwise, the chairman of the board shall perform all the duties and responsibilities and exercise all the powers of the president.

Section 7 Chief Executive Officer . The chief executive officer shall be the most senior officer of the corporation and, subject to the powers of the board of directors and shall have general charge of the business, affairs and property of the corporation, and control over its officers, agents and employees; and shall see that all orders and resolutions of the board of directors are carried into effect. The chief executive officer shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. The chief executive officer shall have such other powers and perform such other duties as may be prescribed by the board of directors or as may be provided in these bylaws.

Section 8 President . The president shall be subject to the powers of the chief executive officer and the board of directors and have general charge of the business, affairs and property of the corporation, and control over its officers, agents and employees; and shall see that all orders and resolutions of the board of directors are carried into effect. The president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. The president shall have such other powers and perform such other duties as may be prescribed by the board of directors or as may be provided in these bylaws.

Section 7 Chief Financial Officer . The chief financial officer of the corporation, if one is appointed, shall, under the direction of the chief executive officer (or, in the absence of a chief executive officer, the president), be responsible for all financial and accounting matters and for the direction of the offices of treasurer and controller. The chief financial officer shall have such other powers and perform such other duties as may be prescribed by the chairman of the board, the chief executive officer (or, in the absence of a chief executive officer, the president), the president or the board of directors or as may be provided in these bylaws.

Section 8 Vice Presidents . The vice president, if one is appointed, or if there shall be more than one, the vice presidents in the order determined by the board of directors or by the president, shall, in the absence or disability of the president, act with all of the powers and be subject to all the restrictions of the president. The vice presidents shall also perform such other duties and have such other powers—as the board of directors, the chief executive officer (or, in the absence of a chief executive officer, the president), the president or these bylaws may, from time to time, prescribe.


Section 9 Secretary and Assistant Secretaries . The secretary or an assistant secretary shall attend all meetings of the board of directors, all meetings of the committees thereof and all meetings of the stockholders and record all the proceedings of the meetings in a book or books to be kept for that purpose. Under the chief executive officer’s (or, in the absence of a chief executive officer, the president’s) supervision, the secretary or an assistant secretary shall give, or cause to be given, all notices required to be given by these bylaws or by law; shall have such powers and perform such duties as the board of directors, the chief executive officer, (or, in the absence of a chief executive officer, the president), the president or these bylaws may, from time to time, prescribe; and shall have custody of the corporate seal of the corporation. The secretary, or an assistant secretary, shall have authority to affix the corporate seal to any instrument requiring it and when so affixed, it may be attested by his or her signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his or her signature. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors, the chief executive officer (or, in the absence of a chief executive officer, the president), the president or the secretary may, from time to time, prescribe.

Section 10 Treasurer and Assistant Treasurer . The treasurer, if one if appointed, shall, subject to the authority of the chief financial officer, have the custody of the corporate funds and securities; shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation; shall deposit all monies and other valuable effects in the name and to the credit of the corporation as may be ordered by the board of directors; shall cause the funds of the corporation to be disbursed when such disbursements have been duly authorized, taking proper vouchers for such disbursements; shall render to the chief executive officer (or, in the absence of a chief executive officer, the president), the president and the board of directors, at its regular meeting or when the board of directors so requires, an account of the corporation; and shall have such powers and perform such duties as the board of directors, the chief executive officer (or, in the absence of a chief executive officer, the president), the president or these bylaws may, from time to time, prescribe. If required by the board of directors, the treasurer shall give the corporation a bond (which shall be rendered every six (6) years) in such sums and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of the office of treasurer and for the restoration to the corporation, in case of death, resignation, retirement, or removal from office, of all books, papers, vouchers, money, and other property of whatever kind in the possession or under the control of the treasurer belonging to the corporation. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall in the absence or disability of the chief financial officer, treasurer, perform the duties and exercise the powers of the treasurer. The assistant treasurers shall perform such other duties and have such other powers as the board of directors, the chief executive officer (or, in the absence of a chief executive officer, the president), the president or treasurer may, from time to time, prescribe.

Section 11 Other Officers, Assistant Officers and Agents . Officers, assistant officers and agents, if any, other than those whose duties are provided for in these bylaws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the board of directors.


Section 12 Absence or Disability of Officers . In the case of the absence or disability of any officer of the corporation and of any person hereby authorized to act in such officer’s place during such officer’s absence or disability, the board of directors may by resolution delegate the powers and duties of such officer to any other officer or to any director, or to any other person whom it may select.

ARTICLE V

INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS

Section 1 Right to Indemnification . Each person who was or is made a party or is threatened to be made a party to or is otherwise involved (including involvement as a witness) in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “ proceeding ”), by reason of the fact that he or she is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, manager, officer, employee or agent of another corporation or of a partnership, limited liability company, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (an “ indemnitee ”), whether the basis of such proceeding is alleged action or omission or failure to act in an official capacity as a director or officer or in any other capacity while serving as a director or officer, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than permitted prior thereto), against all expense, liability and loss (including attorneys’ fees, judgments, fines, excise exercise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith and such indemnification shall continue as to an indemnitee who has ceased to be a director, manager, officer, employee or agent and shall inure to the benefit of the indemnitee’s heirs, executors and administrators; provided, however, that, except as provided in Section 2 of this Article V with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the board of directors of the Corporation. The right to indemnification conferred in this Section 1 of this Article V shall be a contract right and shall include the obligation of the Corporation to pay the expenses incurred in defending any such proceeding in advance of its final disposition (an “ advance of expenses ”); provided, however, that, if and to the extent that the Delaware General Corporation Law requires, an advance of expenses incurred by an indemnitee in his or her capacity as a director, manager or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (an “ undertaking ”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (a “ final adjudication ”) that such indemnitee is not entitled to be indemnified for such expenses under this Section 1 of this Article V or otherwise. The Corporation may, by action of its board of directors, provide indemnification to employees and agents of the Corporation with the same or lesser scope and effect as the foregoing indemnification of directors and officers. The Corporation hereby acknowledges that certain directors and officers affiliated with institutional investors may have certain rights to indemnification, advancement of expenses and/or insurance provided by such


institutional investors or certain of their affiliates (collectively, the “ Institutional Indemnitors ”). The Corporation hereby agrees (i) that it is the indemnitor of first resort (i.e., its obligations to the indemnitee are primary and any obligation of the Institutional Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by the indemnitee are secondary), (ii) that it shall be required to advance the full amount of expenses incurred by the indemnitee in accordance with this Article V without regard to any rights the indemnitee may have against the Institutional Indemnitors and (iii) that it irrevocably waives, relinquishes and releases the Institutional Indemnitors from any and all claims against the Institutional Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Corporation further agrees that no advancement or payment by the Institutional Indemnitors on behalf of the indemnitee with respect to any claim for which the indemnitee has sought indemnification from the Corporation shall affect the foregoing and the Institutional Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of the indemnitee against the Corporation. Notwithstanding anything to the contrary herein, the Corporation shall not be required to provide any advance of expenses to a director or officer who is a party to an action, suit or proceeding brought by the Corporation and approved by a majority of the board of directors not a party to such action, suit or proceeding that alleges willful misappropriation of corporate assets by such director or officer, disclosure of confidential information in violation of such director’s or officer’s fiduciary or contractual obligations to the Corporation or any other willful and deliberate breach in bad faith of such director’s or officer’s duty to the Corporation or its stockholders.

Section 2 Procedure for Indemnification . Any indemnification of a director or officer of the Corporation or advance of expenses under Section 1 of this Article V shall be made promptly, and in any event within forty five days (or, in the case of an advance of expenses, twenty (20) days), upon the written request of the director or officer. If a determination by the Corporation that the director or officer is entitled to indemnification pursuant to this Article V is required, and the Corporation fails to respond within sixty days to a written request for indemnity, the Corporation shall be deemed to have approved the request. If the Corporation denies a written request for indemnification or advance of expenses, in whole or in part, or if payment in full pursuant to such request is not made within forty five days (or, in the case of an advance of expenses, twenty days), the right to indemnification or advances as granted by this Article V shall be enforceable by the director or officer in any court of competent jurisdiction. Such person’s costs and expenses incurred in connection with successfully establishing his or her right to indemnification or advance of expenses, in whole or in part, in any such action shall also be indemnified by the Corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for the advance of expenses where the undertaking required pursuant to Section 1 of this Article V, if any, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the Delaware General Corporation Law for the Corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the Corporation. Neither the failure of the Corporation (including its board of directors, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its board of directors, independent legal counsel or its stockholders) that the claimant


has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. The procedure for indemnification of other employees and agents for whom indemnification is provided pursuant to Section 1 of this Article V shall be the same procedure set forth in this Section 2 of this Article V for directors or officers, unless otherwise set forth in the action of the board of directors providing indemnification for such employee or agent.

Section 3 Insurance . The Corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer, employee or agent of the Corporation or was serving at the request of the Corporation as a director, manager, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise against any expense, liability or loss asserted against him or her and incurred by him or her in any such capacity, whether or not the Corporation would have the power to indemnify such person against such expenses, liability or loss under the Delaware General Corporation Law.

Section 4 Subsidiaries . To the extent any indemnitee under Section 1 of this Article V is also entitled to indemnification from a subsidiary of the Corporation or another corporation, partnership, limited liability company, joint venture, trust or other enterprise at which such indemnitee is serving at the request of the Corporation as a director, manager, officer, employee or agent, such indemnitee shall first look to such subsidiary or other such entity for indemnification, and only after seeking indemnification from such subsidiary shall such indemnitee seek indemnification from the Corporation.

Section 5 Reliance . Persons who, after the date of the adoption of this provision, become or remain directors or officers of the Corporation or who, while a director or officer of the Corporation, become or remain a director, manager, officer, employee or agent of a subsidiary or other entity at which he or she is serving as such at the request of the Corporation, shall be conclusively presumed to have relied on the rights to indemnity, advance of expenses and other rights contained in this Article V in entering into or continuing such service. The rights to indemnification and to the advance of expenses conferred in this Article V shall apply to claims made against an indemnitee arising out of acts or omissions which occurred or occur both prior and subsequent to the adoption hereof.

Section 6 Non Exclusivity of Rights . The rights to indemnification and to the advance of expenses conferred in this Article V shall not be exclusive of any other right which any person may have or hereafter acquire under the Certificate of Incorporation or under any statute, by law, agreement, vote of stockholders or disinterested directors or otherwise.

Section 7 Merger or Consolidation . For purposes of this Article V, references to the “Corporation” shall include, in addition to the resulting Corporation, any constituent Corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent Corporation, or is or was serving at the request of such constituent Corporation as a director, manager, officer, employee or agent of another Corporation, partnership, limited liability company, joint venture, trust or other enterprise, shall stand in the same position under this Article V with respect to the resulting or surviving Corporation as he or she would have with respect to such constituent Corporation if its separate existence had continued.


ARTICLE VI

CERTIFICATES OF STOCK

Section 1 Form . Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by the chief executive officer (or, in the absence of a chief executive officer, the president), president, chief financial officer or a vice-president and the secretary or an assistant secretary of the corporation, certifying the number of shares of a specific class or series owned by such holder in the corporation. If such a certificate is countersigned (1) by a transfer agent or an assistant transfer agent other than the corporation or its employee or (2) by a registrar, other than the corporation or its employee, the signature of any such chief executive officer (or, in the absence of a chief executive officer, the president), president, chief financial officer, vice-president, secretary, or assistant secretary may be facsimiles. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation whether because of death, resignation or otherwise before such certificate or certificates have been delivered by the corporation, such certificate or certificates may nevertheless be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the corporation. All certificates for shares shall be consecutively numbered or otherwise identified. The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the corporation. Shares of stock of the corporation shall only be transferred on the books of the corporation by the holder of record thereof or by such holder’s attorney duly authorized in writing, upon surrender to the corporation of the certificate or certificates for such shares endorsed by the appropriate person or persons, with such evidence of the authenticity of such endorsement, transfer, authorization, and other matters as the corporation may reasonably require, and accompanied by all necessary stock transfer stamps. In that event, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate or certificates, and record the transaction on its books. The board of directors may appoint a bank or trust company organized under the laws of the United States or any state thereof to act as its transfer agent or registrar, or both in connection with the transfer of any class or series of securities of the corporation.

Section 2 Lost Certificates . The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates previously issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate or certificates, or his or her legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against the corporation on account of the loss, theft or destruction of any such certificate or the issuance of such new certificate.


Section 3 Fixing a Record Date for Stockholder Meetings . In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed by the board of directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the next business day preceding the day on which notice is given, or if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided that the board of directors may fix a new record date for the adjourned meeting.

Section 4 Fixing a Record Date for Action by Written Consent . In order that the corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the board of directors. If no record date has been fixed by the board of directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by statute, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested or by facsimile or electronic mail, with confirmation of receipt. If no record date has been fixed by the board of directors and prior action by the board of directors is required by statute, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action.

Section 5 Fixing a Record Date for Other Purposes . In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purposes of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.

Section 6 Registered Stockholders . Prior to the surrender to the corporation of the certificate or certificates for a share or shares of stock with a request to record the transfer of such share or shares, the corporation may treat the registered owner as the person entitled to receive dividends, to vote, to receive notifications, and otherwise to exercise all the rights and powers of an owner. The corporation shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof.


Section 7 Subscriptions for Stock . Unless otherwise provided for in the subscription agreement, subscriptions for shares shall be paid in full at such time, or in such installments and at such times, as shall be determined by the board of directors. Any call made by the board of directors for payment on subscriptions shall be uniform as to all shares of the same class or as to all shares of the same series. In case of default in the payment of any installment or call when such payment is due, the corporation may proceed to collect the amount due in the same manner as any debt due the corporation.

ARTICLE VII

GENERAL PROVISIONS

Section 1 Dividends . Dividends upon the capital stock of the corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or any other purpose and the directors may modify or abolish any such reserve in the manner in which it was created.

Section 2 Checks, Drafts or Orders . All checks, drafts, or other orders for the payment of money by or to the corporation and all notes and other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner, as shall be determined by resolution of the board of directors or a duly authorized committee thereof.

Section 3 Contracts . The board of directors may authorize any officer or officers, or any agent or agents, of the corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances.

Section 4 Loans . The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the board of directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing in this section contained shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.

Section 5 Fiscal Year . The fiscal year of the corporation shall be fixed by resolution of the board of directors.


Section 6 Corporate Seal . The board of directors may provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the corporation and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

Section 7 Voting Securities Owned by Corporation . Voting securities in any other corporation held by the corporation shall be voted by the president, unless the board of directors specifically confers authority to vote with respect thereto, which authority may be general or confined to specific instances, upon some other person or officer. Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution.

Section 8 Inspection of Books and Records . Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporation’s stock ledger, a list of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to such person’s interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at its registered office in the State of Delaware or at its principal place of business.

Section 9 Section Headings . Section headings in these bylaws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.

Section 10 Inconsistent Provisions . In the event that any provision of these bylaws is or becomes inconsistent with any provision of the Certificate of Incorporation, the General Corporation Law of the State of Delaware or any other applicable law, the provision of these bylaws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.

ARTICLE VIII

AMENDMENTS

Except for Article III and Article V hereof, these bylaws may be amended, altered, or repealed and new bylaws adopted at any meeting of the board of directors by a majority vote. Article III hereof may be amended, altered, or repealed at any meeting of the stockholders only by a unanimous vote (or unanimous written consent in lieu thereof). Article V hereof may be amended, altered, or repealed at any meeting of the board of directors only by a unanimous vote (or unanimous written consent in lieu thereof). The fact that the power to adopt, amend, alter, or repeal the bylaws has been conferred upon the board of directors shall not divest the stockholders of the same powers.


AMENDMENT TO SECOND AMENDED AND RESTATED BYLAWS OF

J.A. COSMETICS HOLDINGS, INC.

a Delaware corporation

April 24, 2016

The following sets forth an amendment to the Second Amended and Restated Bylaws (the “ Bylaws ”) of e.l.f. Beauty, Inc. (formerly J.A. Cosmetics Holdings, Inc.), a Delaware corporation (the “ Corporation ”), which amendment was approved by the Board of Directors of the Corporation pursuant to the authority reserved to the Board of Directors under Article Nine of the Amended and Restated Certificate of Incorporation of the Corporation and Article VIII of the Bylaws, and shall be effective as of the date first set forth above:

The title of the Bylaws is hereby amended and restated in its entirety as follows:

“SECOND AMENDED AND RESTATED BYLAWS OF E.L.F. BEAUTY, INC. (FORMERLY J.A. COSMETICS HOLDINGS, INC.)”

* * * * * * * * * *


CERTIFICATE OF SECRETARY

I hereby certify that this Amendment to the Bylaws was duly adopted by the Board of Directors of the Corporation as of the date first set forth above.

IN WITNESS WHEREOF, I have hereunto subscribed my name this 26th day of April, 2016.

 

      /s/ Scott Milsten
      Scott Milsten
      Secretary

Exhibit 3.5

Amended and Restated Bylaws of

e.l.f. Beauty, Inc.

(a Delaware corporation)


Table of Contents

 

         Page  

Article I - Corporate Offices

     1   

            1.1        

  Registered Office      1   

            1.2        

  Other Offices      1   

Article II - Meetings of Stockholders

     1   

            2.1        

  Place of Meetings      1   

            2.2        

  Annual Meeting      1   

            2.3        

  Special Meeting      1   

            2.4        

  Advance Notice Procedures for Business Brought before a Meeting      2   

            2.5        

  Advance Notice Procedures for Nominations of Directors      5   

            2.6        

  Notice of Stockholders’ Meetings      8   

            2.7        

  Manner of Giving Notice; Affidavit of Notice      8   

            2.8        

  Quorum      8   

            2.9        

  Adjourned Meeting; Notice      8   

            2.10      

  Conduct of Business      9   

            2.11      

  Voting      9   

            2.12      

  Record Date for Stockholder Notice; Voting; Giving Consents      9   

            2.13      

  Proxies      10   

            2.14      

  List of Stockholders Entitled to Vote      10   

            2.15      

  Inspectors of Election      10   

Article III - Directors

     11   

            3.1        

  Powers      11   

            3.2        

  Number of Directors      11   

            3.3        

  Election, Qualification and Term of Office of Directors      11   

            3.4        

  Resignation and Vacancies      12   

            3.5        

  Place of Meetings; Meetings by Telephone      12   

            3.6        

  Regular Meetings      12   

            3.7        

  Special Meetings; Notice      12   

            3.8        

  Quorum      13   

            3.9        

  Board Action by Written Consent without a Meeting      13   

            3.10       

  Fees and Compensation of Directors      13   

            3.11       

  Removal of Directors      14   

Article IV - Committees

     14   

            4.1         

  Committees of Directors      14   

            4.2         

  Committee Minutes      14   

            4.3         

  Meetings and Action of Committees      14   

Article V - Officers

     15   

            5.1         

  Officers      15   

            5.2         

  Appointment of Officers      15   

            5.3         

  Subordinate Officers      15   

            5.4         

  Removal and Resignation of Officers      15   

 

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TABLE OF CONTENTS

(continued)

 

         Page  

            5.5      

  Vacancies in Offices      16   

            5.6      

  Representation of Shares of Other Corporations      16   

            5.7      

  Authority and Duties of Officers      16   

Article VI - Records and Reports

     16   

            6.1      

  Maintenance and Inspection of Records      16   

            6.2      

  Inspection by Directors      16   

Article VII - General Matters

     17   

            7.1      

  Execution of Corporate Contracts and Instruments      17   

            7.2      

  Stock Certificates; Partly Paid Shares      17   

            7.3      

  Special Designation on Certificates      17   

            7.4      

  Lost Certificates      18   

            7.5      

  Construction; Definitions      18   

            7.6      

  Dividends      18   

            7.7      

  Fiscal Year      18   

            7.8      

  Seal      18   

            7.9      

  Transfer of Stock      18   

            7.10      

  Stock Transfer Agreements      19   

            7.11      

  Registered Stockholders      19   

            7.12      

  Waiver of Notice      19   

Article VIII - Notice by Electronic Transmission

     19   

            8.1      

  Notice by Electronic Transmission      19   

            8.2      

  Definition of Electronic Transmission      20   

Article IX - Indemnification

     20   

            9.1      

  Indemnification of Directors and Officers      20   

            9.2      

  Indemnification of Others      21   

            9.3      

  Prepayment of Expenses      21   

            9.4      

  Determination; Claim      21   

            9.5      

  Non-Exclusivity of Rights      21   

            9.6      

  Insurance      21   

            9.7      

  Other Indemnification      22   

            9.8      

  Continuation of Indemnification      22   

            9.9      

  Amendment or Repeal      22   

Article X - Amendments

     22   

Article XI - Forum Selection

     23   

 

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Amended and Restated Bylaws of

e.l.f. Beauty, Inc.

 

  

 

  
  

 

  

Article I - Corporate Offices

 

  1.1 Registered Office .

The registered office of e.l.f. Beauty, Inc. (the “ Corporation ”) shall be fixed in the Corporation’s certificate of incorporation, as the same may be amended from time to time (the “ certificate of incorporation ”).

 

  1.2 Other Offices .

The Corporation’s board of directors (the “ Board ”) may at any time establish other offices at any place or places where the Corporation is qualified to do business.

Article II - Meetings of Stockholders

 

  2.1 Place of Meetings .

Meetings of stockholders shall be held at any place, within or outside the State of Delaware, designated by the Board. The Board may, in its sole discretion, determine that a meeting of stockholders shall not be held at any place, but may instead be held solely by means of remote communication as authorized by Section 211(a)(2) of the General Corporation Law of the State of Delaware (the “ DGCL ”). In the absence of any such designation or determination, stockholders’ meetings shall be held at the Corporation’s principal executive office.

 

  2.2 Annual Meeting .

The Board shall designate the date and time of the annual meeting. At the annual meeting, directors shall be elected and other proper business properly brought before the meeting in accordance with Section 2.4 may be transacted.

 

  2.3 Special Meeting .

Special meetings of the stockholders may be called only in the manner set forth in the certificate of incorporation.

No business may be transacted at such special meeting other than the business specified in such notice to stockholders. Nothing contained in this paragraph of this Section 2.3 shall be construed as limiting, fixing, or affecting the time when a meeting of stockholders called by action of the Board may be held.


  2.4 Advance Notice Procedures for Business Brought before a Meeting .

(i) At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be (a) specified in a notice of meeting given by or at the direction of the Board, (b) if not specified in a notice of meeting, otherwise brought before the meeting by the Board or the chairperson of the Board, or (c) otherwise properly brought before the meeting by a stockholder present in person who (A)(1) was a beneficial owner of shares of the Corporation both at the time of giving the notice provided for in this Section 2.4 and at the time of the meeting, (2) is entitled to vote at the meeting and (3) has complied with this Section 2.4 in all applicable respects or (B) properly made such proposal in accordance with Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (as so amended and inclusive of such rules and regulations, the “ Exchange Act ”). The foregoing clause (c) shall be the exclusive means for a stockholder to propose business to be brought before an annual meeting of the stockholders. The only matters that may be brought before a special meeting are the matters specified in the notice of meeting given by or at the direction of the person calling the meeting pursuant to Section 2.3 of these bylaws, and stockholders shall not be permitted to propose business to be brought before a special meeting of the stockholders. For purposes of this Section 2.4, “present in person” shall mean that the stockholder proposing that the business be brought before the annual meeting of the Corporation, or, if the proposing stockholder is not an individual, a qualified representative of such proposing stockholder, appear at such annual meeting. A “qualified representative” of such proposing stockholder shall be, if such proposing stockholder is (x) a general or limited partnership, any general partner or person who functions as a general partner of the general or limited partnership or who controls the general or limited partnership, (y) a corporation or a limited liability company, any officer or person who functions as an officer of the corporation or limited liability company or any officer, director, general partner or person who functions as an officer, director or general partner of any entity ultimately in control of the corporation or limited liability company or (z) a trust, any trustee of such trust. Stockholders seeking to nominate persons for election to the Board must comply with Section 2.5 of these bylaws, and this Section 2.4 shall not be applicable to nominations except as expressly provided in Section 2.5 of these bylaws.

(ii) Without qualification, for business to be properly brought before an annual meeting by a stockholder, the stockholder must (a) provide Timely Notice (as defined below) thereof in writing and in proper form to the Secretary of the Corporation and (b) provide any updates or supplements to such notice at the times and in the forms required by this Section 2.4. To be timely, a stockholder’s notice must be delivered to, or mailed and received at, the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred twenty (120) days prior to the one-year anniversary of the preceding year’s annual meeting; provided, however, that if the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date, notice by the stockholder to be timely must be so delivered, or mailed and received, not later than the ninetieth (90th) day prior to such annual meeting or, if later, the tenth (10th) day following the day on which public disclosure of the date of such annual meeting was first made (such notice within such time periods, “ Timely Notice ”). In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period for the giving of Timely Notice as described above.

(iii) To be in proper form for purposes of this Section 2.4, a stockholder’s notice to the Secretary shall set forth:

(a) As to each Proposing Person (as defined below), (A) the name and address of such Proposing Person (including, if applicable, the name and address that appear on the

 

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Corporation’s books and records); and (B) the class or series and number of shares of the Corporation that are, directly or indirectly, owned of record or beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by such Proposing Person, except that such Proposing Person shall in all events be deemed to beneficially own any shares of any class or series of the Corporation as to which such Proposing Person has a right to acquire beneficial ownership at any time in the future (the disclosures to be made pursuant to the foregoing clauses (A) and (B) are referred to as “ Stockholder Information ”);

(b) As to each Proposing Person, (A) the full notional amount of any securities that, directly or indirectly, underlie any “derivative security” (as such term is defined in Rule 16a-1(c) under the Exchange Act) that constitutes a “call equivalent position” (as such term is defined in Rule 16a-1(b) under the Exchange Act) (“ Synthetic Equity Position ”) and that is, directly or indirectly, held or maintained by such Proposing Person with respect to any shares of any class or series of shares of the Corporation; provided that, for the purposes of the definition of “Synthetic Equity Position,” the term “derivative security” shall also include any security or instrument that would not otherwise constitute a “derivative security” as a result of any feature that would make any conversion, exercise or similar right or privilege of such security or instrument becoming determinable only at some future date or upon the happening of a future occurrence, in which case the determination of the amount of securities into which such security or instrument would be convertible or exercisable shall be made assuming that such security or instrument is immediately convertible or exercisable at the time of such determination; and, provided, further, that any Proposing Person satisfying the requirements of Rule 13d-1(b)(1) under the Exchange Act (other than a Proposing Person that so satisfies Rule 13d-1(b)(1) under the Exchange Act solely by reason of Rule 13d-1(b)(1)(ii)(E)) shall not be deemed to hold or maintain the notional amount of any securities that underlie a Synthetic Equity Position held by such Proposing Person as a hedge with respect to a bona fide derivatives trade or position of such Proposing Person arising in the ordinary course of such Proposing Person’s business as a derivatives dealer, (B) any rights to dividends on the shares of any class or series of shares of the Corporation owned beneficially by such Proposing Person that are separated or separable from the underlying shares of the Corporation, (C) any material pending or threatened legal proceeding in which such Proposing Person is a party or material participant involving the Corporation or any of its officers or directors, or any affiliate of the Corporation, (D) any other material relationship between such Proposing Person, on the one hand, and the Corporation or any affiliate of the Corporation, on the other hand, (E) any direct or indirect material interest in any material contract or agreement of such Proposing Person with the Corporation or any affiliate of the Corporation (including, in any such case, any employment agreement, collective bargaining agreement or consulting agreement) and (F) any other information relating to such Proposing Person that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies or consents by such Proposing Person in support of the business proposed to be brought before the meeting pursuant to Section 14(a) of the Exchange Act (the disclosures to be made pursuant to the foregoing clauses (A) through (F) are referred to as “ Disclosable Interests ”); provided, however, that Disclosable Interests shall not include any such disclosures with respect to the ordinary course business activities of any broker, dealer, commercial bank, trust company or other nominee who is a Proposing Person solely as a result of being the stockholder directed to prepare and submit the notice required by these bylaws on behalf of a beneficial owner; and

 

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(c) As to each item of business that the stockholder proposes to bring before the annual meeting, (A) a brief description of the business desired to be brought before the annual meeting, the reasons for conducting such business at the annual meeting and any material interest in such business of each Proposing Person, (B) the text of the proposal or business (including the text of any resolutions proposed for consideration), (C) a reasonably detailed description of all agreements, arrangements and understandings (x) between or among any of the Proposing Persons or (y) between or among any Proposing Person and any other person or entity (including their names) in connection with the proposal of such business by such stockholder and (D) any other information relating to such item of business that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies in support of the business proposed to be brought before the meeting pursuant to Section 14(a) of the Exchange Act; provided, however, that the disclosures required by this Section 2.4(iii) shall not include any disclosures with respect to any broker, dealer, commercial bank, trust company or other nominee who is a Proposing Person solely as a result of being the stockholder directed to prepare and submit the notice required by these bylaws on behalf of a beneficial owner.

(iv) For purposes of this Section 2.4, the term “ Proposing Person ” shall mean (a) the stockholder providing the notice of business proposed to be brought before an annual meeting, (b) the beneficial owner or beneficial owners, if different, on whose behalf the notice of the business proposed to be brought before the annual meeting is made and (c) any participant (as defined in paragraphs (a)(ii)-(vi) of Instruction 3 to Item 4 of Schedule 14A) with such stockholder in such solicitation or associate (within the meaning of Rule 12b-2 under the Exchange Act for the purposes of these bylaws) of such stockholder or beneficial owner.

(v) A Proposing Person shall update and supplement its notice to the Corporation of its intent to propose business at an annual meeting, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 2.4 shall be true and correct as of the record date for notice of the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the record date for notice of the meeting (in the case of the update and supplement required to be made as of such record date), and not later than eight (8) business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed) (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof).

(vi) Notwithstanding anything in these bylaws to the contrary, no business shall be conducted at an annual meeting that is not properly brought before the meeting in accordance with this Section 2.4. The presiding officer of the meeting shall, if the facts warrant, determine that the business was not properly brought before the meeting in accordance with this Section 2.4, and if he or she should so determine, he or she shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted.

(vii) This Section 2.4 is expressly intended to apply to any business proposed to be brought before an annual meeting of stockholders, other than any proposal made in accordance with Rule 14a- 8 under the Exchange Act and included in the Corporation’s proxy statement. In addition to the requirements of this Section 2.4 with respect to any business proposed to be brought before an annual meeting, each

 

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Proposing Person shall comply with all applicable requirements of the Exchange Act with respect to any such business. Nothing in this Section 2.4 shall be deemed to affect the rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

(viii) For purposes of these bylaws, “ public disclosure ” shall mean disclosure in a press release reported by a national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.

 

  2.5 Advance Notice Procedures for Nominations of Directors .

(i) Except as otherwise provided by the Stockholders Agreement, nominations of any person for election to the Board at an annual meeting or at a special meeting (but only if the election of directors is a matter specified in the notice of meeting given by or at the direction of the person calling such special meeting) may be made at such meeting only (a) by or at the direction of the Board, including by any committee or persons authorized to do so by the Board or these bylaws, or (b) by a stockholder present in person (A) who was a beneficial owner of shares of the Corporation both at the time of giving the notice provided for in this Section 2.5 and at the time of the meeting, (B) is entitled to vote at the meeting and (C) has complied with this Section 2.5 as to such notice and nomination. For purposes of this Section 2.5, “present in person” shall mean that the stockholder proposing that the business be brought before the meeting of the Corporation, or, if the proposing stockholder is not an individual, a qualified representative of such stockholder, appear at such meeting. A “qualified representative” of such proposing stockholder shall be, if such proposing stockholder is (x) a general or limited partnership, any general partner or person who functions as a general partner of the general or limited partnership or who controls the general or limited partnership, (y) a corporation or a limited liability company, any officer or person who functions as an officer of the corporation or limited liability company or any officer, director, general partner or person who functions as an officer, director or general partner of any entity ultimately in control of the corporation or limited liability company or (z) a trust, any trustee of such trust. The foregoing clause (b) shall be the exclusive means for a stockholder to make any nomination of a person or persons for election to the Board at an annual meeting or special meeting.

(ii) Except as otherwise provided by the Stockholders Agreement, without qualification, for a stockholder to make any nomination of a person or persons for election to the Board at an annual meeting, the stockholder must (a) provide Timely Notice (as defined in Section 2.4(ii) of these bylaws) thereof in writing and in proper form to the Secretary of the Corporation, (b) provide the information, agreements and questionnaires with respect to such stockholder and its candidate for nomination as required to be set forth by this Section 2.5, and (c) provide any updates or supplements to such notice at the times and in the forms required by this Section 2.5. Without qualification, if the election of directors is a matter specified in the notice of meeting given by or at the direction of the person calling a special meeting, then for a stockholder to make any nomination of a person or persons for election to the Board at a special meeting, the stockholder must (a) provide timely notice thereof in writing and in proper form to the Secretary of the Corporation at the principal executive offices of the Corporation, (b) provide the information with respect to such stockholder and its candidate for nomination as required by this Section 2.5, and (c) provide any updates or supplements to such notice at the times and in the forms required by this Section 2.5. To be timely, a stockholder’s notice for nominations to be made at a special meeting must be delivered to, or mailed and received at, the principal executive offices of the Corporation not earlier than the one hundred twentieth (120th) day prior to such special meeting and not later than the ninetieth (90th) day prior to such special meeting or, if later, the tenth (10th) day following the day on which public disclosure (as defined in Section 2.4(viii) of these bylaws) of the date of such special meeting was first made. In no event shall any adjournment or postponement of an annual meeting or special meeting or the announcement thereof commence a new time period for the giving of a stockholder’s notice as described above.

 

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(iii) To be in proper form for purposes of this Section 2.5, a stockholder’s notice to the Secretary shall set forth:

(a) As to each Nominating Person (as defined below), the Stockholder Information (as defined in Section 2.4(iii)(a) of these bylaws) except that for purposes of this Section 2.5, the term “Nominating Person” shall be substituted for the term “Proposing Person” in all places it appears in Section 2.4(iii)(a);

(b) As to each Nominating Person, any Disclosable Interests (as defined in Section 2.4(iii)(b), except that for purposes of this Section 2.5 the term “Nominating Person” shall be substituted for the term “Proposing Person” in all places it appears in Section 2.4(iii)(b) and the disclosure with respect to the business to be brought before the meeting in Section 2.4(iii)(b) shall be made with respect to the election of directors at the meeting); and

(c) As to each candidate whom a Nominating Person proposes to nominate for election as a director, (A) all information with respect to such candidate for nomination that would be required to be set forth in a stockholder’s notice pursuant to this Section 2.5 if such candidate for nomination were a Nominating Person, (B) all information relating to such candidate for nomination that is required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in a contested election pursuant to Section 14(a) under the Exchange Act (including such candidate’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected), (C) a description of any direct or indirect material interest in any material contract or agreement between or among any Nominating Person, on the one hand, and each candidate for nomination or his or her respective associates or any other participants in such solicitation, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 under Regulation S-K if such Nominating Person were the “registrant” for purposes of such rule and the candidate for nomination were a director or executive officer of such registrant (the disclosures to be made pursuant to the foregoing clauses (A) through (C) are referred to as “Nominee Information”), and (D) a completed and signed questionnaire, representation and agreement as provided in Section 2.5(vi).

(iv) For purposes of this Section 2.5, the term “Nominating Person” shall mean (a) the stockholder providing the notice of the nomination proposed to be made at the meeting, (b) the beneficial owner or beneficial owners, if different, on whose behalf the notice of the nomination proposed to be made at the meeting is made and (c) any associate of such stockholder or beneficial owner or any other participant in such solicitation.

(v) A stockholder providing notice of any nomination proposed to be made at a meeting shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 2.5 shall be true and correct as of the record date for notice of the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the

 

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record date for notice of the meeting (in the case of the update and supplement required to be made as of such record date), and not later than eight (8) business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed) (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof).

(vi) Except as otherwise provided by the Stockholders Agreement, to be eligible to be a candidate for election as a director of the Corporation at an annual or special meeting, a candidate must be nominated in the manner prescribed in this Section 2.5 and the candidate for nomination, whether nominated by the Board or by a stockholder of record, must have previously delivered (in accordance with the time period prescribed for delivery in a notice to such candidate given by or on behalf of the Board), to the Secretary at the principal executive offices of the Corporation, (a) a completed written questionnaire (in a form provided by the Corporation) with respect to the background, qualifications, stock ownership and independence of such candidate for nomination and (b) a written representation and agreement (in form provided by the Corporation) that such candidate for nomination (A) is not and, if elected as a director during his or her term of office, will not become a party to (1) any agreement, arrangement or understanding with, and has not given and will not give any commitment or assurance to, any person or entity as to how such candidate, if elected as a director of the Corporation, will act or vote on any issue or question (a “Voting Commitment”) or (2) any Voting Commitment that could limit or interfere with such candidate’s ability to comply, if elected as a director of the Corporation, with such candidate’s fiduciary duties under applicable law, (B) is not, and will not become a party to, any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation or reimbursement for service as a director that has not been disclosed therein and (C) if elected as a director of the Corporation, will comply with all applicable corporate governance, conflict of interest, confidentiality, stock ownership and trading and other policies and guidelines of the Corporation applicable to directors and in effect during such person’s term in office as a director (and, if requested by any candidate for nomination, the Secretary of the Corporation shall provide to such candidate for nomination all such policies and guidelines then in effect).

(vii) The Board may also require any proposed candidate for nomination as a Director to furnish such other information as may reasonably be requested by the Board in writing prior to the meeting of stockholders at which such candidate’s nomination is to be acted upon in order for the Board to determine the eligibility of such candidate for nomination to be an independent director of the Corporation in accordance with the Corporation’s Corporate Governance Guidelines.

(viii) In addition to the requirements of this Section 2.5 with respect to any nomination proposed to be made at a meeting, each Proposing Person shall comply with all applicable requirements of the Exchange Act with respect to any such nominations.

(ix) Except as otherwise provided by the Stockholders Agreement, no candidate shall be eligible for nomination as a director of the Corporation unless such candidate for nomination and the Nominating Person seeking to place such candidate’s name in nomination has complied with this Section 2.5, as applicable. The presiding officer at the meeting shall, if the facts warrant, determine that a nomination was not properly made in accordance with this Section 2.5, and if he or she should so determine, he or she shall so declare such determination to the meeting, the defective nomination shall be disregarded and any ballots cast for the candidate in question (but in the case of any form of ballot listing other qualified nominees, only the ballots case for the nominee in question) shall be void and of no force or effect.

 

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(x) Notwithstanding anything in these Bylaws to the contrary, except as otherwise provided by the Stockholders Agreement, no candidate for nomination shall be eligible to be seated as a director of the Corporation unless nominated and elected in accordance with this Section 2.5.

 

  2.6 Notice of Stockholders’ Meetings .

Unless otherwise provided by law, the certificate of incorporation or these bylaws, the notice of any meeting of stockholders shall be sent or otherwise given in accordance with either Section 2.7 or Section 8.1 of these bylaws not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. The notice shall specify the place, if any, date and hour of the meeting, the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called.

 

  2.7 Manner of Giving Notice; Affidavit of Notice .

Notice of any meeting of stockholders shall be deemed given:

(i) if mailed, when deposited in the U.S. mail, postage prepaid, directed to the stockholder at his or her address as it appears on the Corporation’s records; or

(ii) if electronically transmitted as provided in Section 8.1 of these bylaws.

An affidavit of the secretary or an assistant secretary of the Corporation or of the transfer agent or any other agent of the Corporation that the notice has been given by mail or by a form of electronic transmission, as applicable, shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

 

  2.8 Quorum .

Unless otherwise provided by law, the certificate of incorporation or these bylaws, the holders of a majority in voting power of the stock issued and outstanding and entitled to vote, present in person, or by remote communication, if applicable, or represented by proxy, shall constitute a quorum for the transaction of business at all meetings of the stockholders. If, however, a quorum is not present or represented at any meeting of the stockholders, then either (i) the chairperson of the meeting or (ii) a majority in voting power of the stockholders entitled to vote at the meeting, present in person, or by remote communication, if applicable, or represented by proxy, shall have power to adjourn the meeting from time to time in the manner provided in Section 2.9 of these bylaws until a quorum is present or represented. At such adjourned meeting at which a quorum is present or represented, any business may be transacted that might have been transacted at the meeting as originally noticed.

 

  2.9 Adjourned Meeting; Notice .

When a meeting is adjourned to another time or place, unless these bylaws otherwise require, notice need not be given of the adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

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  2.10 Conduct of Business .

The chairperson of any meeting of stockholders shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of business.

 

  2.11 Voting .

The stockholders entitled to vote at any meeting of stockholders shall be determined in accordance with the provisions of Section 2.12 of these bylaws, subject to Section 217 (relating to voting rights of fiduciaries, pledgors and joint owners of stock) and Section 218 (relating to voting trusts and other voting agreements) of the DGCL.

Except as may be otherwise provided in the certificate of incorporation or these bylaws, each stockholder shall be entitled to one (1) vote for each share of capital stock held by such stockholder.

At all duly called or convened meetings of stockholders, at which a quorum is present, for the election of directors, a plurality of the votes cast shall be sufficient to elect a director. Except as otherwise provided by the certificate of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the Corporation, or applicable law or pursuant to any regulation applicable to the Corporation or its securities, all other elections and questions presented to the stockholders at a duly called or convened meeting, at which a quorum is present, shall be decided by the majority of the votes cast affirmatively or negatively (excluding abstentions and broker non-votes) and shall be valid and binding upon the Corporation.

 

  2.12 Record Date for Stockholder Notice; Voting; Giving Consents .

In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which record date shall not precede the date on which the resolution fixing the record date is adopted and which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other such action.

If the Board does not so fix a record date:

(i) The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.

(ii) The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.

 

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A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.

 

  2.13 Proxies .

Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy authorized by an instrument in writing or by a transmission permitted by law filed in accordance with the procedure established for the meeting, but, except as otherwise provided by the Stockholders Agreement, no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Section 212 of the DGCL. A proxy may be in the form of a telegram, cablegram or other means of electronic transmission which sets forth or is submitted with information from which it can be determined that the telegram, cablegram or other means of electronic transmission was authorized by the stockholder.

 

  2.14 List of Stockholders Entitled to Vote .

The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. The Corporation shall not be required to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of at least ten (10) days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the Corporation’s principal executive office. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. Such list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.

 

  2.15 Inspectors of Election .

Before any meeting of stockholders, the Board shall appoint an inspector or inspectors of election to act at the meeting or its adjournment and make a written report thereof. The number of inspectors shall be either one (1) or three (3). If any person appointed as inspector fails to appear or fails or refuses to act, then the chairperson of the meeting may, and upon the request of any stockholder or a stockholder’s proxy shall, appoint a person to fill that vacancy.

 

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Such inspectors shall:

(i) determine the number of shares outstanding and the voting power of each, the number of shares represented at the meeting, the existence of a quorum, and the authenticity, validity, and effect of proxies;

(ii) receive votes or ballots;

(iii) hear and determine all challenges and questions in any way arising in connection with the right to vote;

(iv) count and tabulate all votes;

(v) determine when the polls shall close;

(vi) determine the result; and

(vii) do any other acts that may be proper to conduct the election or vote with fairness to all stockholders.

The inspectors of election shall perform their duties impartially, in good faith, to the best of their ability and as expeditiously as is practical. If there are three (3) inspectors of election, the decision, act or certificate of a majority is effective in all respects as the decision, act or certificate of all. Any report or certificate made by the inspectors of election is prima facie evidence of the facts stated therein. The inspectors of election may appoint such persons to assist them in performing their duties as they determine.

Article III - Directors

 

  3.1 Powers .

Subject to the provisions of the DGCL and any limitations in the certificate of incorporation or these bylaws relating to action required to be approved by the stockholders or by the outstanding shares, the business and affairs of the Corporation shall be managed and all corporate powers shall be exercised by or under the direction of the Board.

 

  3.2 Number of Directors .

Subject to the terms of the Stockholders Agreement, the authorized number of directors shall be determined from time to time by resolution of the Board, provided the Board shall consist of at least one (1) member and not more than (12) members. No reduction of the authorized number of directors shall have the effect of removing any director before that director’s term of office expires.

 

  3.3 Election, Qualification and Term of Office of Directors .

Except as provided in Section 3.4 of these bylaws and subject to the terms of the Stockholders Agreement, each director, including a director elected to fill a vacancy, shall hold office until the expiration of the term for which elected and until such director’s successor is elected and qualified or until such director’s earlier death, resignation or removal. Directors need not be stockholders unless so required by the certificate of incorporation or these bylaws. The certificate of incorporation or these bylaws may prescribe other qualifications for directors.

 

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As provided in the certificate of incorporation, the directors of the Corporation shall be divided into three (3) classes.

 

  3.4 Resignation and Vacancies .

Any director may resign at any time upon notice given in writing or by electronic transmission to the Corporation. When one or more directors so resigns and the resignation is effective at a future date, except as otherwise provided by the Stockholders Agreement, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided in this section in the filling of other vacancies.

Unless otherwise provided in the certificate of incorporation or these bylaws and except as otherwise provided by the Stockholders Agreement, vacancies and newly created directorships resulting from any increase in the authorized number of directors shall, unless the Board determines by resolution that any such vacancies or newly created directorships shall be filled by stockholders, be filled only by a majority of the directors then in office, although less than a quorum, or by a sole remaining director. Any director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such director’s successor shall have been elected and qualified. A vacancy in the Board of Directors shall be deemed to exist under these bylaws in the case of the death, removal or resignation of any director.

 

  3.5 Place of Meetings; Meetings by Telephone .

The Board may hold meetings, both regular and special, either within or outside the State of Delaware.

Unless otherwise restricted by the certificate of incorporation or these bylaws, members of the Board, or any committee designated by the Board, may participate in a meeting of the Board, or any committee, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting pursuant to this bylaw shall constitute presence in person at the meeting.

 

  3.6 Regular Meetings .

Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board.

 

  3.7 Special Meetings; Notice .

Special meetings of the Board for any purpose or purposes may be called at any time by the chairperson of the Board, the chief executive officer, the president, the secretary or a majority of the authorized number of directors or, if prior to the Trigger Event, by or at the direction of a director designated for nomination by the TPG Investor.

 

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Notice of the time and place of special meetings shall be:

(i) delivered personally by hand, by courier or by telephone;

(ii) sent by United States first-class mail, postage prepaid;

(iii) sent by facsimile; or

(iv) sent by electronic mail,

directed to each director at that director’s address, telephone number, facsimile number or electronic mail address, as the case may be, as shown on the Corporation’s records.

If the notice is (i) delivered personally by hand, by courier or by telephone, (ii) sent by facsimile or (iii) sent by electronic mail, it shall be delivered or sent at least twenty-four (24) hours before the time of the holding of the meeting. If the notice is sent by U.S. mail, it shall be deposited in the U.S. mail at least four (4) days before the time of the holding of the meeting. Any oral notice may be communicated to the director. The notice need not specify the place of the meeting (if the meeting is to be held at the Corporation’s principal executive office) nor the purpose of the meeting.

 

  3.8 Quorum .

At all meetings of the Board, a majority of the authorized number of directors shall constitute a quorum for the transaction of business. The vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board, except as may be otherwise specifically provided by statute, the certificate of incorporation or these bylaws. If a quorum is not present at any meeting of the Board, then the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.

A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority of the required quorum for that meeting.

 

  3.9 Board Action by Written Consent without a Meeting .

Unless otherwise restricted by the certificate of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board, or of any committee thereof, may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

 

  3.10 Fees and Compensation of Directors .

Unless otherwise restricted by the certificate of incorporation or these bylaws, the Board shall have the authority to fix the compensation of directors.

 

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  3.11 Removal of Directors .

No reduction of the authorized number of directors shall have the effect of removing any director prior to the expiration of such director’s term of office.

Article IV - Committees

 

  4.1 Committees of Directors .

The Board may designate one (1) or more committees, each committee to consist, subject to the terms of the Stockholders Agreement, of one (1) or more of the directors of the Corporation. The Board may designate one (1) or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board or in these bylaws, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers that may require it; but no such committee shall have the power or authority to (i) approve or adopt, or recommend to the stockholders, any action or matter expressly required by the DGCL to be submitted to stockholders for approval, or (ii) adopt, amend or repeal any bylaw of the Corporation.

 

  4.2 Committee Minutes .

Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

 

  4.3 Meetings and Action of Committees .

Meetings and actions of committees shall be governed by, and held and taken in accordance with, the provisions of:

(i) Section 3.5 (place of meetings and meetings by telephone);

(ii) Section 3.6 (regular meetings);

(iii) Section 3.7 (special meetings and notice);

(iv) Section 3.8 (quorum);

(v) Section 3.9 (action without a meeting); and

(vi) Section 7.12 (waiver of notice),

with such changes in the context of those bylaws as are necessary to substitute the committee and its members for the Board and its members.  However :

(i) the time of regular meetings of committees may be determined either by resolution of the Board or by resolution of the committee;

 

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(ii) special meetings of committees may also be called by resolution of the Board or the chairperson of the applicable committee;

(iii) notice of special meetings of committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee; and

(iv) the Board may adopt rules for the governance of any committee to override the provisions that would otherwise apply to the committee pursuant to this Section 4.3, provided that such rules do not violate the provisions of the certificate of incorporation or applicable law.

Article V - Officers

 

  5.1 Officers .

The officers of the Corporation shall be a president and a secretary. The Corporation may also have, at the discretion of the Board, a chairperson of the Board, a vice chairperson of the Board, a chief executive officer, a chief financial officer, a treasurer, one (1) or more vice presidents, one (1) or more assistant vice presidents, one (1) or more assistant treasurers, one (1) or more assistant secretaries, and any such other officers as may be appointed in accordance with the provisions of these bylaws. Any number of offices may be held by the same person.

 

  5.2 Appointment of Officers .

The Board shall appoint the officers of the Corporation, except such officers as may be appointed in accordance with the provisions of Section 5.3 of these bylaws, subject to the rights, if any, of an officer under any contract of employment.

 

  5.3 Subordinate Officers .

The Board may appoint, or empower the chief executive officer or, in the absence of a chief executive officer, the president, to appoint, such other officers and agents as the business of the Corporation may require. Each of such officers and agents shall hold office for such period, have such authority, and perform such duties as are provided in these bylaws or as the Board may from time to time determine.

 

  5.4 Removal and Resignation of Officers .

Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by an affirmative vote of the majority of the Board at any regular or special meeting of the Board or, except in the case of an officer chosen by the Board, by any officer upon whom such power of removal may be conferred by the Board.

Any officer may resign at any time by giving written notice to the Corporation. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice. Unless otherwise specified in the notice of resignation, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the Corporation under any contract to which the officer is a party.

 

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  5.5 Vacancies in Offices .

Any vacancy occurring in any office of the Corporation shall be filled by the Board or as provided in Section 5.2.

 

  5.6 Representation of Shares of Other Corporations .

The chairperson of the Board, the chief executive officer, the president, any vice president, the treasurer, the secretary or assistant secretary of this Corporation, or any other person authorized by the Board, the chief executive officer, the president or a vice president, is authorized to vote, represent and exercise on behalf of this Corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this Corporation. The authority granted herein may be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executed by such person having the authority.

 

  5.7 Authority and Duties of Officers .

All officers of the Corporation shall respectively have such authority and perform such duties in the management of the business of the Corporation as may be designated from time to time by the Board or the stockholders and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board.

Article VI - Records and Reports

 

  6.1 Maintenance and Inspection of Records .

The Corporation shall, either at its principal executive office or at such place or places as designated by the Board, keep a record of its stockholders listing their names and addresses and the number and class of shares held by each stockholder, a copy of these bylaws as amended to date, accounting books and other records.

Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the Corporation’s stock ledger, a list of its stockholders, and its other books and records and to make copies or extracts therefrom. A proper purpose shall mean a purpose reasonably related to such person’s interest as a stockholder. In every instance where an attorney or other agent is the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing that authorizes the attorney or other agent so to act on behalf of the stockholder. The demand under oath shall be directed to the Corporation at its registered office in the State of Delaware or at its principal executive office.

 

  6.2 Inspection by Directors .

Any director shall have the right to examine the Corporation’s stock ledger, a list of its stockholders, and its other books and records for a purpose reasonably related to his or her position as a director. The Court

 

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of Chancery is hereby vested with the exclusive jurisdiction to determine whether a director is entitled to the inspection sought. The Court may summarily order the Corporation to permit the director to inspect any and all books and records, the stock ledger, and the stock list and to make copies or extracts therefrom. The Court may, in its discretion, prescribe any limitations or conditions with reference to the inspection, or award such other and further relief as the Court may deem just and proper.

Article VII - General Matters

 

  7.1 Execution of Corporate Contracts and Instruments .

The Board, except as otherwise provided in these bylaws, may authorize any officer or officers, or agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the Corporation; such authority may be general or confined to specific instances. Unless so authorized or ratified by the Board or within the agency power of an officer, no officer, agent or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.

 

  7.2 Stock Certificates; Partly Paid Shares .

The shares of the Corporation shall be represented by certificates or shall be uncertificated. Certificates for the shares of stock, if any, shall be in such form as is consistent with the certificate of incorporation and applicable law. Every holder of stock represented by a certificate shall be entitled to have a certificate signed by, or in the name of the Corporation by the chairperson or vice chairperson of the Board, or the president or vice president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the Corporation representing the number of shares registered in certificate form. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.

The Corporation may issue the whole or any part of its shares as partly paid and subject to call for the remainder of the consideration to be paid therefor. Upon the face or back of each stock certificate issued to represent any such partly paid shares, upon the books and records of the Corporation in the case of uncertificated partly paid shares, the total amount of the consideration to be paid therefor and the amount paid thereon shall be stated. Upon the declaration of any dividend on fully paid shares, the Corporation shall declare a dividend upon partly paid shares of the same class, but only upon the basis of the percentage of the consideration actually paid thereon.

 

  7.3 Special Designation on Certificates .

If the Corporation is authorized to issue more than one class of stock or more than one series of any class, then the powers, the designations, the preferences and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate that the Corporation shall issue to represent such class or series of stock; provided, however , that, except as otherwise provided in Section 202 of the DGCL, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate that the Corporation shall issue to represent such class or series of stock a statement

 

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that the Corporation will furnish without charge to each stockholder who so requests the powers, the designations, the preferences and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

 

  7.4 Lost Certificates .

Except as provided in this Section 7.4, no new certificates for shares shall be issued to replace a previously issued certificate unless the latter is surrendered to the Corporation and cancelled at the same time. The Corporation may issue a new certificate of stock or uncertificated shares in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.

 

  7.5 Construction; Definitions .

Unless the context requires otherwise, the general provisions, rules of construction and definitions in the DGCL shall govern the construction of these bylaws. Without limiting the generality of this provision, the singular number includes the plural, the plural number includes the singular, and the term “person” includes both a corporation and a natural person.

 

  7.6 Dividends .

The Board, subject to any restrictions contained in either (i) the DGCL or (ii) the certificate of incorporation, may declare and pay dividends upon the shares of its capital stock. Dividends may be paid in cash, in property or in shares of the Corporation’s capital stock.

The Board may set apart out of any of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve. Such purposes shall include but not be limited to equalizing dividends, repairing or maintaining any property of the Corporation, and meeting contingencies.

 

  7.7 Fiscal Year .

The fiscal year of the Corporation shall be fixed by resolution of the Board and may be changed by the Board.

 

  7.8 Seal .

The Corporation may adopt a corporate seal, which shall be adopted and which may be altered by the Board. The Corporation may use the corporate seal by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.

 

  7.9 Transfer of Stock .

Shares of the Corporation shall be transferable in the manner prescribed by law and in these bylaws. Shares of stock of the Corporation shall be transferred on the books of the Corporation only by the holder of record thereof or by such holder’s attorney duly authorized in writing, upon surrender to the Corporation of

 

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the certificate or certificates representing such shares endorsed by the appropriate person or persons (or by delivery of duly executed instructions with respect to uncertificated shares), with such evidence of the authenticity of such endorsement or execution, transfer, authorization and other matters as the Corporation may reasonably require, and accompanied by all necessary stock transfer stamps. No transfer of stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing the names of the persons from and to whom it was transferred.

 

  7.10 Stock Transfer Agreements .

The Corporation shall have power to enter into and perform any agreement with any number of stockholders of any one or more classes of stock of the Corporation to restrict the transfer of shares of stock of the Corporation of any one or more classes owned by such stockholders in any manner not prohibited by the DGCL.

 

  7.11 Registered Stockholders .

The Corporation:

(i) shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends and to vote as such owner;

(ii) shall be entitled to hold liable for calls and assessments the person registered on its books as the owner of shares; and

(iii) shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of another person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.

 

  7.12 Waiver of Notice .

Whenever notice is required to be given under any provision of the DGCL, the certificate of incorporation or these bylaws, a written waiver, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders need be specified in any written waiver of notice or any waiver by electronic transmission unless so required by the certificate of incorporation or these bylaws.

Article VIII - Notice by Electronic Transmission

 

  8.1 Notice by Electronic Transmission .

Without limiting the manner by which notice otherwise may be given effectively to stockholders pursuant to the DGCL, the certificate of incorporation or these bylaws, any notice to stockholders given by the Corporation under any provision of the DGCL, the certificate of incorporation or these bylaws shall be

 

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effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice to the Corporation. Any such consent shall be deemed revoked if:

(i) the Corporation is unable to deliver by electronic transmission two (2) consecutive notices given by the Corporation in accordance with such consent; and

(ii) such inability becomes known to the secretary or an assistant secretary of the Corporation or to the transfer agent, or other person responsible for the giving of notice.

However, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.

Any notice given pursuant to the preceding paragraph shall be deemed given:

 

  (i) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice;

 

  (ii) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice;

 

  (iii) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and

 

  (iv) if by any other form of electronic transmission, when directed to the stockholder.

An affidavit of the secretary or an assistant secretary or of the transfer agent or other agent of the Corporation that the notice has been given by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

 

  8.2 Definition of Electronic Transmission .

An “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.

Article IX - Indemnification

 

  9.1 Indemnification of Directors and Officers .

The Corporation shall indemnify and hold harmless, to the fullest extent permitted by the DGCL as it presently exists or may hereafter be amended, any director or officer of the Corporation who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “ Proceeding ”) by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of

 

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a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such person in connection with any such Proceeding. Notwithstanding the preceding sentence, except as otherwise provided in Section 9.4, the Corporation shall be required to indemnify a person in connection with a Proceeding initiated by such person only if the Proceeding was authorized in the specific case by the Board.

 

  9.2 Indemnification of Others .

The Corporation shall have the power to indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any employee or agent of the Corporation who was or is made or is threatened to be made a party or is otherwise involved in any Proceeding by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was an 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 or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person in connection with any such Proceeding.

 

  9.3 Prepayment of Expenses .

The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by any officer or director of the Corporation, and may pay the expenses incurred by any employee or agent of the Corporation, in defending any Proceeding in advance of its final disposition; provided, however , that, to the extent required by law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the person to repay all amounts advanced if it should be ultimately determined that the person is not entitled to be indemnified under this Article IX or otherwise.

 

  9.4 Determination; Claim .

If a claim for indemnification (following the final disposition of such Proceeding) or advancement of expenses under this Article IX is not paid in full within sixty (60) days after a written claim therefor has been received by the Corporation the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim to the fullest extent permitted by law. In any such action the Corporation shall have the burden of proving that the claimant was not entitled to the requested indemnification or payment of expenses under applicable law.

 

  9.5 Non-Exclusivity of Rights .

The rights conferred on any person by this Article IX shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these bylaws, agreement, vote of stockholders or disinterested directors or otherwise.

 

  9.6 Insurance .

The Corporation may purchase and maintain insurance on behalf of any person who 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 enterprise or

 

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non-profit entity 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 liability under the provisions of the DGCL.

 

  9.7 Other Indemnification .

The Corporation’s obligation, if any, to indemnify or advance expenses to any person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or non-profit entity shall be reduced by any amount such person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

  9.8 Continuation of Indemnification .

The rights to indemnification and to prepayment of expenses provided by, or granted pursuant to, this Article IX shall continue notwithstanding that the person has ceased to be a director or officer of the Corporation and shall inure to the benefit of the estate, heirs, executors, administrators, legatees and distributees of such person.

 

  9.9 Amendment or Repeal .

The provisions of this Article IX shall constitute a contract between the Corporation, on the one hand, and, on the other hand, each individual who serves or has served as a director or officer of the Corporation (whether before or after the adoption of these bylaws), in consideration of such person’s performance of such services, and pursuant to this Article IX the Corporation intends to be legally bound to each such current or former director or officer of the Corporation. With respect to current and former directors and officers of the Corporation, the rights conferred under this Article IX are present contractual rights and such rights are fully vested, and shall be deemed to have vested fully, immediately upon adoption of theses bylaws. With respect to any directors or officers of the Corporation who commence service following adoption of these bylaws, the rights conferred under this provision shall be present contractual rights and such rights shall fully vest, and be deemed to have vested fully, immediately upon such director or officer commencing service as a director or officer of the Corporation. Any repeal or modification of the foregoing provisions of this Article IX shall not adversely affect any right or protection (i) hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification or (ii) under any agreement providing for indemnification or advancement of expenses to an officer or director of the Corporation in effect prior to the time of such repeal or modification.

Article X - Amendments

Subject to the limitations set forth in Section 9.9 of these bylaws or the provisions of the certificate of incorporation, the Board is expressly empowered to adopt, amend or repeal the bylaws of the Corporation. Any adoption, amendment or repeal of the bylaws of the Corporation by the Board shall require the approval of a majority of the authorized number of directors. The stockholders also shall have power to adopt, amend or repeal the bylaws of the Corporation; provided, however , that, from and after the Trigger Event, in addition to any vote of the holders of any class or series of stock of the Corporation required by law or by the certificate of incorporation, such action by stockholders shall require the affirmative vote of the holders of at least seventy-five percent (75%) of the voting power of all the then-outstanding shares of voting stock of the Corporation with the power to vote at an election of directors, voting together as a single class.

 

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Article XI - Forum Selection

Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery (the “ Chancery Court ”) of the State of Delaware (or, in the event that the Chancery Court does not have jurisdiction, the federal district court for the District of Delaware or other state courts of the State of Delaware) shall, to the fullest extent permitted by law, be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or to the Corporation’s stockholders, (iii) any action arising pursuant to any provision of the DGCL or the certificate of incorporation or these bylaws (as either may be amended from time to time) or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine. If any action the subject matter of which is within the scope of the preceding sentence is filed in a court other than a court located within the State of Delaware (a “ Foreign Action ”) in the name of any stockholder, such stockholder shall be deemed to have consented to (a) the personal jurisdiction of the state and federal courts located within the State of Delaware in connection with any action brought in any such court to enforce the preceding sentence and (b) having service of process made upon such stockholder in any such action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder.

Article XII - Definitions

As used in these bylaws, unless the context otherwise requires, the term:

“Affiliate” means, with respect to any Person, any other Person that controls, is controlled by, or is under common control with such Person. For the purposes of this definition, “control,” when used with respect to any person, means the power to direct or cause the direction of the affairs or management of that person, whether through the ownership of voting securities, as trustee (or the power to appoint a trustee), personal representative or executor, by contract, credit arrangement or otherwise and “controlled” and “controlling” have meanings correlative to the foregoing.

“Person” means any individual, general partnership, limited partnership, limited liability company, corporation, trust, business trust, joint stock company, joint venture, unincorporated association, cooperative or association or any other legal entity or organization of whatever nature, and shall include any successor (by merger or otherwise) of such entity.

“Principal Stockholders” means each of (i) the TPG Investor and (ii) the Shamah Investors.

“Shamah Investors” means collectively, (i) J.A. Cosmetics, Corp., (ii) Joseph Shamah, (iii) Alan Shamah and (iv) each Affiliate of any of the foregoing that is party to the Stockholders Agreement.

“Stockholders Agreement” means that certain amended and restated stockholders agreement dated as of [            ], 2016, by and among (i) the Corporation, (ii) the TPG Investor, (iii) the Shamah Investors and (iv) each of the other parties thereto, as such may be amended from time to time.

“TPG Investor” means TPG elf Holdings, L.P., a Delaware limited partnership, and its successors and Affiliates.

 

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“Trigger Event” means the first date on which the Principal Stockholders cease collectively to beneficially own (directly or indirectly) more than 50% of the voting power of the outstanding shares of Common Stock. For the purpose of these bylaws, “beneficial ownership” shall be determined in accordance with Rule 13d-3 promulgated under the Exchange Act.

 

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e.l.f. Beauty, Inc.

Certificate of Amendment and Restatement of Bylaws

 

  

 

  
  

 

  

The undersigned hereby certifies that he is the duly elected, qualified, and acting Secretary of e.l.f. Beauty, Inc., a Delaware corporation (the “ Corporation ”), and that the foregoing bylaws were amended and restated on             , 2016 by the Corporation’s board of directors.

IN WITNESS WHEREOF, the undersigned has hereunto set his hand this      day of         , 2016.

 

 

Scott K. Milsten
Secretary

Exhibit 4.2

EXECUTION VERSION

REGISTRATION RIGHTS AGREEMENT

THIS REGISTRATION RIGHTS AGREEMENT (this “ Agreement ”) dated as of January 31, 2014 is made by and among (i) J.A. Cosmetics Holdings, Inc., a Delaware corporation (the “ Company ”), (ii) the Persons listed on Schedule I attached hereto (as amended from time to time, the “ TPG-Group ”), and (iii) the Persons listed on Schedule II attached hereto, together with all other Persons who may become a party to this Agreement by executing and delivering to the Company a Joinder Agreement (“ Joinder Agreement ”), in the form attached hereto as Exhibit A , to the Company subsequent to the original execution and delivery of this Agreement (collectively, the “ Non-TPG Group ”). The TPG Group and the Non-TPG Group are collectively referred to herein as the “ Stockholders ,” and each member of each of the TPG Group and the Non-TPG Group, as a “ Stockholder .”

In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows:

1. Demand Registrations .

(a) Requests for Registration . The Stockholders contemplate the initial public offering of the equity securities of the Company or a Subsidiary of the Company. Subject to the limitations contained in Sections 1(b) and (c) , at any time and from time to time, the holders of a majority of the TPG Group Registrable Securities, J.A. Cosmestics, Corp. and its Permitted Transferees (the “ JAC Group ”), who in the aggregate are the holders of a majority of the Other Registrable Securities held by the JAC Group (the “ JAC Group Registrable Securities ”), or the holders of a majority of the Other Registrable Securities held by the Amin Group (the “ Amin Group Registrable Securities ”), as applicable, may request registration under the Securities Act of all or part of their respective Registrable Securities on Form S-1 or any similar long-form registration (“ Long-Form Registrations ”) or, if available, on Form S-3 (including pursuant to Rule 415 under the Securities Act) or any similar short-form registration (“ Short-Form Registrations ”); provided that neither the JAC Group nor the Amin Group shall be entitled to make any such request unless the JAC Group or the Amin Group, as applicable, respectively holds at least five percent (5%) of the Registrable Securities outstanding at the time of such request. All registrations requested pursuant to this Section 1(a) are referred to herein as “ Demand Registrations .” Each request for a Demand Registration shall specify the approximate number of Registrable Securities requested to be registered and the anticipated per share price range for such offering. Within five (5) days after receipt of any such request, the Company shall give written notice of such requested registration to all other holders of Registrable Securities and, subject to Section 1(d) , will include in such registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein from such Persons within five (5) days after the receipt of the Company’s notice.

(b) Long-Form Registrations . (i) The holders of a majority of the TPG Group Registrable Securities shall be entitled to request an unlimited number of Long-Form Registrations (subject to Section 1(e) ), (ii) the holders of a majority of the JAC Group Registrable Securities shall be entitled to request one (1) Long-Form Registration and (iii) the holders of a majority of the Amin Group Registrable Securities shall be entitled to request one (1) Long-Form Registration, in each case, in which the Company shall pay all Registration Expenses (as defined below in Section 5 ). All Long-Form Registrations shall be underwritten registrations.


(c) Short-Form Registrations . In addition to the Long-Form Registrations provided pursuant to Section 1(b) , (i) the holders of a majority of the TPG Group Registrable Securities shall be entitled to request an unlimited number of Short-Form Registrations (subject to Section 1(e) ), (ii) the holders of a majority of the JAC Group Registrable Securities shall be entitled to request two (2) Short-Form Registrations and (iii) the holders of a majority of the Amin Group Registrable Securities shall be entitled to request one (1) Short-Form Registration, in each case, in which the Company shall pay all Registration Expenses. Demand Registrations will be Short-Form Registrations whenever the Company is permitted to use any applicable short form. After the Company has become subject to the reporting requirements of the Securities Exchange Act, the Company shall use its best efforts to make Short-Form Registrations on Form S-3 available for the sale of Registrable Securities. All Short-Form Registrations shall be underwritten registrations, unless otherwise agreed to by the holders of a majority of the Registrable Securities included in such registration. If the Company, pursuant to the request of the holder(s) of a majority of the TPG Group Registrable Securities, the holder(s) of a majority of the JAC Group Registrable Securities or the holders of a majority of the Amin Group Registrable Securities, as applicable, is qualified to and has filed with the Securities Exchange Commission a registration statement under the Securities Act on Form S-3 pursuant to Rule 415 under the Securities Act (the “ Required Registration ”), then the Company shall use reasonable best efforts to cause the Required Registration to be declared effective under the Securities Act as soon as practicable after filing, and, once effective, the Company shall cause such Required Registration to remain effective until the date on which all TPG Group Registrable Securities, JAC Group Registrable Securities or Amin Group Registrable Securities, as applicable, included in such registration have been sold pursuant to the Required Registration.

(d) Priority on Demand Registrations . The Company shall not include in any Demand Registration any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the TPG Group Registrable Securities included in such registration. If a Demand Registration is an underwritten offering and the managing underwriters advise the Company in writing that, in their opinion, the number of Registrable Securities and, if permitted hereunder, other securities requested to be included in such offering exceeds the number of Registrable Securities and other securities, if any, which can be sold in an orderly manner in such offering within the price range acceptable to the holders of a majority of the Registrable Securities initially requesting such registration, the Company will include in such registration, (i)  first , the Registrable Securities requested to be included in such registration that, in the opinion of such underwriters, can be sold in an orderly manner within such price range, pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder, and (ii)  second , other securities requested (and permitted) to be included in such registration, if any, that, in the opinion of such underwriters, can be sold in an orderly manner within such price range, pro rata among the holders of such securities on the basis of the number of such securities owned by each such holder.

 

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(e) Restrictions on Demand Registrations. The Company shall not be obligated to effect any Long Form Registration within ninety (90) days after the effective date of a previous Long Form Registration or a previous registration in which the holders of Registrable Securities were given piggyback rights pursuant to Section 2 and in which there was no reduction in the number of Registrable Securities requested to be included. The Company may postpone for up to six (6) months the filing or the effectiveness of a registration statement for a Demand Registration if the Company and the holders of a majority of the TPG Group Registrable Securities agree that such Demand Registration would reasonably be expected to have a material adverse effect on any proposal or plan by the Company or any of its Subsidiaries to acquire financing, engage in any acquisition of assets (other than in the ordinary course of business) or engage in any merger, consolidation, tender offer, reorganization or similar transaction; provided that, in such event, the Company shall pay all Registration Expenses in connection with such registration. The Company may delay a Demand Registration hereunder only once in any twelve (12)-month period.

(f) Selection of Underwriters . The holders of a majority of the TPG Group Registrable Securities, the holders of a majority of the JAC Group Registrable Securities or the holders of a majority of the Amin Group Registrable Securities, as applicable, included in any Demand Registration shall have the right to select the investment banker(s) and managing underwriter(s) to administer the offering.

(g) Effectiveness of a Demand Registration . A Demand Registration shall not deemed to have been effected and shall not be counted as a Demand Registration (i) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least 180 days or such shorter period in which all the Registrable Securities included in such Demand Registration actually have been sold thereunder (provided that such period shall be extended for a period of time equal to the period the holder of Registrable Securities refrains from selling any securities included in such registration statement at the request of the Company pursuant to this Agreement) or (ii) if, after it becomes effective, the Demand Registration becomes subject, prior to 180 days after effectiveness, to any stop order, injunction or other order or requirement of the Securities and Exchange Commission or other governmental entity, agency or authority.

2. Piggyback Registrations .

(a) Right to Piggyback . Whenever the Company proposes to register any of its equity securities (including any proposed registration of the Company’s securities by any third party) under the Securities Act (other than (i) pursuant to a Demand Registration, which is governed by Section 1 , (ii) pursuant to a registration on Form S-4 or S-8 or any successor or similar forms, or (iii) in connection with the Company’s initial public offering of equity securities), whether or not for sale for its own account, and the registration form to be used may be used for the registration of Registrable Securities (a “ Piggyback Registration ”), the Company shall give prompt written notice to all holders of Registrable Securities of its intention to effect such a registration and will include in such registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein from such Persons within ten (10) days after the receipt of the Company’s notice.

(b) Piggyback Expenses . The Registration Expenses of the holders of Registrable Securities shall be paid by the Company in all Piggyback Registrations.

 

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(c) Priority on Primary Registrations . If a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such offering exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the Company, then the Company shall include in such registration (i)  first , the securities the Company proposes to sell that, in the opinion of such underwriters, can be sold in an orderly manner within such price range, (ii)  second , the Registrable Securities requested to be included in such registration, if any, that, in the opinion of such underwriters, can be sold in an orderly manner within such price range, pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder, and (iii)  third , other securities requested (and permitted) to be included in such registration, if any, that, in the opinion of such underwriters, can be sold in an orderly manner within such price range, pro rata among the holders of such securities on the basis of the number of such securities owned by each such holder.

(d) Priority on Secondary Registrations . If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company’s securities other than holders of Registrable Securities (it being understood that secondary registrations on behalf of holders of Registrable Securities are addressed in Section 1 rather than this Section 2(d) ), and the managing underwriters advise the Company in writing that, in their opinion, the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the holders of a majority of the securities initially requested to be included in such registration, then the Company shall include in such registration (i)  first , the securities requested to be included therein by the holders requesting such registration and the Registrable Securities requested to be included in such registration, in each case that, in the opinion of such underwriters, can be sold in an orderly manner within such price range, pro rata among the holders of such securities and the holders of such Registrable Securities on the basis of the number of securities owned by each such holder, and (ii)  second , other securities requested (and permitted) to be included in such registration, if any, that, in the opinion of such underwriters, can be sold in an orderly manner within such price range.

(e) Selection of Underwriters . If any Piggyback Registration is an underwritten offering, the selection of the investment banker(s) and managing underwriter(s) for the offering must be approved by the holders of a majority of the Registrable Securities included in such Piggyback Registration, which approval shall not be unreasonably withheld.

(f) Other Registrations . If the Company has previously filed a registration statement with respect to Registrable Securities pursuant to Section 1 or pursuant to this Section 2 , and if such previous registration has not been withdrawn or abandoned, then, unless such previous registration statement is a Required Registration, the Company shall not file or cause to be effected any other registration of any of its equity securities or securities convertible or exchangeable into or exercisable for its equity securities under the Securities Act (except on Form S-4 or S-8 or any successor form), whether on its own behalf or at the request of any holder or holders of such securities, until a period of at least six months has elapsed from the effective date of such previous registration.

 

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3. Holdback Agreements .

(a) Each holder of Registrable Securities agrees that in connection with the Company’s initial public offering and any Demand Registration or Piggyback Registration that is an underwritten public offering of the Company’s equity securities, he, she or it, to the extent required by the lead majority underwriter of any such offering, shall not (i) offer, sell, contract to sell, pledge or otherwise dispose of (including sales pursuant to Rule 144), directly or indirectly, any equity securities of the Company (“ Securities ”) (including Securities which may be deemed to be owned beneficially by such holder in accordance with the rules and regulations of the Securities and Exchange Commission), or any securities, options, or rights convertible into or exchangeable or exercisable for Securities (“ Other Securities ”), other than, subject to Section 3(b) , to a Permitted Transferee (as defined in the Stockholders Agreement), provided such Permitted Transferee agrees to be bound the terms of this Agreement, (ii) enter into a transaction which would have the same effect as described in clause (i) of this Section 3(a) , (iii) enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences or ownership of any Securities or Other Securities, whether such transaction is to be settled by delivery of such Securities, Other Securities, in cash or otherwise, or (iv) publicly disclose the intention to enter into any transaction described in (i), (ii) or (iii) above, from the date on which the Company gives notice to the holders of Registrable Securities that a preliminary prospectus has been circulated for the underwritten public offering to the date that is 180-days following the date of the final prospectus for such underwritten public offering (or such shorter period as agreed to by the underwriters designated as “book-runners” managing such registered public offering), unless such book-runners otherwise agree in writing (such period, the “ Holdback Period ”). If (x) the Company issues an earnings release or other material news or a material event relating to the Company and its Subsidiaries occurs during the last seventeen (17) days of the Holdback Period or (y) prior to the expiration of the Holdback Period, the Company announces that it will release earnings results during the sixteen (16)-day period beginning upon the expiration of the Holdback Period, then to the extent necessary for a managing or co-managing underwriter of a registered offering required hereunder to comply with FINRA Rule 2711(f)(4), the Holdback Period shall be extended until eighteen (18) days after the earnings release or the occurrence of the material news or event, as the case may be (such period referred to herein as the “ Holdback Extension ”). The Company may impose stop-transfer instructions with respect to its securities that are subject to the foregoing restriction until the end of such period, including any period of Holdback Extension.

(b) In connection with any underwritten public offering of the Company’s equity securities, each holder of Registrable Securities agrees to enter into any lockup or similar agreement requested by the underwriters managing the registered public offering that the holders of a majority of the TPG Group Registrable Securities agree(s) to enter into.

(c) The Company (i) agrees not to effect any Public Sale or distribution of its equity securities, or any securities convertible into or exchangeable or exercisable for such securities, during the seven days prior to and during the 180-day period beginning on the effective date of any Demand Registration or any underwritten Piggyback Registration (except as part of such underwritten registration or pursuant to registrations on Form S-4 or S-8 or any successor form) or, in the event of a Holdback Extension, for such longer period until the end of such period of Holdback Extension, unless the underwriters managing the registered public

 

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offering otherwise agree, and (ii) to the extent not inconsistent with applicable law, except as otherwise permitted by the holders of a majority of the TPG Group Registrable Securities, shall cause each holder of its equity securities, or any securities convertible into or exchangeable or exercisable for equity securities, purchased from the Company at any time after the date of this Agreement (other than in a registered public offering) to agree not to effect any Public Sale or distribution (including sales pursuant to Rule 144) of any such securities during such period (as extended by any Holdback Extension) except as part of such underwritten registration, if otherwise permitted, unless the underwriters managing the registered public offering otherwise agree.

(d) Notwithstanding any other provision contained in this Agreement, the Company shall not include in any underwritten Demand Registration or underwritten Piggyback Registration any portion of Registrable Securities held by any officers or employees of the Company or any of its Subsidiaries the inclusion of which the underwriter of such Demand Registration or Piggyback Registration, as the case may be, determines is likely to adversely affect such offering.

(e) Notwithstanding anything to the contrary herein, except in the case of (i) a transfer to the Company, (ii) a Public Sale permitted hereunder or (iii) a transfer in connection with an Approved Sale (as defined in the Stockholders Agreement) (clauses (i) through (iii), a “ Permitted Transfer ”), prior to transferring any Registrable Securities to any Person not already a party to this Agreement (including by operation of law), the transferring Stockholder shall cause the prospective transferee to execute and deliver to the Company a counterpart of this Agreement thereby agreeing to be bound by the terms hereof. Any transfer or attempted transfer of any Registrable Securities in violation of any provision of this Agreement shall be void ab initio, and the Company shall not record such transfer on its books or treat any purported transferee of such securities as the owner of such securities for any purpose. Other than in the case of a Permitted Transfer, whether or not any such transferee has executed a counterpart hereto, such transferee shall be subject to the obligations of the transferor hereunder. The provisions of this Section 3(e) shall terminate upon a Public Offering (as defined in the Stockholders Agreement).

(f) Each certificate evidencing any Securities or Other Securities held by a Stockholder and each certificate issued in exchange for or upon the transfer of any such securities (unless such securities are permitted to be transferred pursuant to this Agreement and, if such securities were Registrable Securities, would no longer be Registrable Securities after such transfer) shall be stamped or otherwise imprinted with a legend in substantially the following form:

“THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON             , HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR APPLICABLE STATE SECURITIES LAWS (“STATE ACTS”) AND MAY NOT BE SOLD, ASSIGNED, PLEDGED OR TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR STATE ACTS OR AN EXEMPTION FROM REGISTRATION THEREUNDER. THE TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN (I) THE

 

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STOCKHOLDERS AGREEMENT, DATED AS OF JANUARY 31, 2014, AS AMENDED AND MODIFIED FROM TIME TO TIME, GOVERNING THE ISSUER (THE “COMPANY”) AND BY AND AMONG CERTAIN STOCKHOLDERS, AND (II) THE REGISTRATION RIGHTS AGREEMENT, DATED AS OF JANUARY 31, 2014, AS AMENDED AND MODIFIED FROM TIME TO TIME, BY AND AMONG THE ISSUER AND CERTAIN STOCKHOLDERS. A COPY OF SUCH CONDITIONS SHALL BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE.”

The Company shall imprint such legend on certificates evidencing Securities and Other Securities outstanding prior to the date hereof. The legend set forth above shall be removed from the certificates evidencing any securities which are transferred pursuant to a Permitted Transfer.

4. Registration Procedures . Whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof and pursuant thereto the Company will as expeditiously as possible:

(a) in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder, prepare and (within sixty (60) days after the end of the period within which requests for registration may be given to the Company) file with the Securities and Exchange Commission a registration statement with respect to such Registrable Securities and thereafter use its reasonable best efforts to cause such registration statement to become effective as soon as practicable thereafter (provided that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company shall furnish to the counsel selected by the holders of a majority of the Registrable Securities that requested the Demand Registration copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);

(b) notify in writing each holder of Registrable Securities of the effectiveness of each registration statement filed hereunder and prepare and file with the Securities and Exchange Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of either (i) not less than six months (subject to extension pursuant to Section 7(b) ) or, if such registration statement relates to an underwritten offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer or (ii) such shorter period as will terminate when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement (but in any event not before the expiration of any longer period required under the Securities Act), and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement;

 

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(c) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;

(d) use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as any seller of Registrable Securities reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(d) , (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction);

(e) notify in writing each seller of such Registrable Securities (i) promptly after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) promptly after receipt thereof, of any request by the Securities and Exchange Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of any event as a result of which, the prospectus included in such registration statement (x) contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made or (y) is otherwise not legally available to support sales of Registrable Securities;

(f) prepare and file promptly with the Securities and Exchange Commission, and notify such sellers of Registrable Securities prior to the filing of, such amendments or supplements to such registration statement or prospectus as may be necessary to correct any statements or omissions if, at the time when a prospectus relating to such securities is required to be delivered under the Securities Act, any event has occurred as the result of which any such prospectus or any other prospectus as then in effect would include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, in case any of such holders of Registrable Securities or any underwriter for any such holders is required to deliver a prospectus at a time when the prospectus then in circulation is not in compliance with the Securities Act or the rules and regulations promulgated thereunder, the Company shall use its best efforts to prepare promptly upon request of any such holder or underwriter such amendments or supplements to such registration statement and prospectus as may be necessary in order for such prospectus to comply with the requirements of the Securities Act and such rules and regulations;

(g) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed;

 

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(h) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;

(i) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the holders of a majority of the Registrable Securities that requested the Demand Registration included in such registration, or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including participation in “road shows”, investor presentations and marketing events and effecting a share or unit split or a combination of shares or units);

(j) make available for inspection by any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant, or other agent retained by any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees, and independent accountants to supply all information reasonably requested by any such underwriter, attorney, accountant, or agent in connection with such registration statement and assist and, at the request of any participating underwriter, use reasonable best efforts to cause such officers or directors to participate in presentations to prospective purchasers;

(k) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Demand Registration or Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;

(l) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Securities and Exchange Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;

(m) use its reasonable best efforts to prevent the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any securities included in such registration statement for sale in any jurisdiction, and in the event of the issuance of any such stop order or other such order the Company shall advise such holders of Registrable Securities of such stop order or other such order promptly after it shall receive notice or obtain knowledge thereof and shall use its best efforts promptly to obtain the withdrawal of such order;

(n) obtain one or more cold comfort letters, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, dated the date of each closing under the underwriting agreement and addressed to the underwriters), from the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the holders of a majority of the Registrable Securities that requested the Demand Registration included in such registration reasonably request; and

 

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(o) provide a legal opinion of the Company’s outside counsel, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, dated the date of each closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by such opinions, which opinions shall be addressed to the underwriters. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish the Company such information regarding such seller and the distribution of such securities as the Company may from time to time reasonably request in writing.

5. Registration Expenses .

(a) All expenses incident to the Company’s performance of or compliance with this Agreement, including all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, printing expenses, travel expenses, filing expenses, messenger and delivery expenses, fees and disbursements of custodians, and fees and disbursements of counsel for the Company and of all independent certified public accountants, underwriters including, if necessary, a “qualified independent underwriter” within the meaning of the rules of the Financial Industry Regulatory Authority (in each case, excluding discounts and commissions), and other Persons retained by the Company or by the holders of TPG Group Registrable Securities or their affiliates on behalf of the Company (all such expenses being herein called “ Registration Expenses ”), shall be borne as provided in this Agreement, except that the Company shall, in any event, pay its internal expenses (including all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review, the expense of any liability insurance and the expenses and fees for listing the securities to be registered on each securities exchange on which similar securities issued by the Company are then listed. Each Person that sells securities pursuant to a Demand Registration or Piggyback Registration hereunder shall bear and pay all underwriting discounts and commissions applicable to the securities sold for such Person’s account.

(b) In connection with each Demand Registration and each Piggyback Registration, the Company shall reimburse the holders of Registrable Securities included in such registration for the reasonable fees and disbursements of one counsel chosen by the holders of a majority of the Registrable Securities included in such registration.

(c) To the extent Registration Expenses are not required to be paid by the Company, each holder of securities included in any registration hereunder shall pay those Registration Expenses allocable hereunder to the registration of such holder’s securities so included, and any Registration Expenses not so allocable shall be borne by all sellers of securities included in such registration in proportion to the aggregate selling price of each seller’s securities to be so registered.

 

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6. Indemnification .

(a) The Company agrees to indemnify and hold harmless, to the fullest extent permitted by law, each holder of Registrable Securities, its officers, directors, partners, managers, agents, and employees and each Person who controls such holder (within the meaning of the Securities Act) (each an “ Indemnitee ” and, collectively, the “ Indemnitees ”) against any losses, claims, damages, liabilities, joint or several, together with reasonable costs and expenses (including reasonable attorneys’ fees), to which such Indemnitee may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of, are based upon, are caused by or result from (i) any untrue or alleged untrue statement of material fact contained (A) in any registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or (B) in any application or other document or communication (in this Section 6 collectively called an “ application ”) executed by or on behalf of the Company or based upon written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify any securities covered by such registration statement under the “blue sky” or securities laws thereof, or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will reimburse each such Indemnitee for any legal or any other expenses incurred by him, her or it in connection with investigating or defending any such loss, claim, damage, expense, liability, action or proceeding; provided, however, that the Company shall not be liable in any such case to any such Person to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of, is based upon, is caused by or results from an untrue statement or alleged untrue statement, or omission or alleged omission, made in such registration statement, any such prospectus or preliminary prospectus or any amendment or supplement thereto, or in any application, in reliance upon, and in conformity with, written information prepared and furnished to the Company by such holder expressly for use therein. In connection with an underwritten offering, the Company shall indemnify the underwriters, their officers and directors and each Person who controls such underwriters (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the holders of Registrable Securities.

(b) In connection with any registration statement in which a holder of Registrable Securities is participating, each such holder shall furnish to the Company in writing such information regarding the holder and affidavits as the Company reasonably requests for use in connection with any such registration statement or prospectus and, to the fullest extent permitted by law, shall indemnify and hold harmless the other holders of Registrable Securities and the Company, and their respective directors, officers, partners, managers, agents and employees and each other Person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities, joint or several, together with reasonable costs and expenses (including reasonable attorney’s fees), to which such indemnified party may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of, are based upon, are caused by or result from (i) any untrue or alleged untrue statement of material fact contained in the registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or in any application or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make

 

11


the statements therein not misleading, but only to the extent that such untrue statement or omission is made in such registration statement, any such prospectus or preliminary prospectus or any amendment or supplement thereto, or in any application, in each case, in reliance upon and in conformity with written information regarding the holder prepared and furnished to the Company by such holder expressly for use therein; provided, however, that the obligation to indemnify will be several and not joint, as to each holder and will be limited to the net amount of proceeds received by such holder from the sale of Registrable Securities pursuant to such registration statement.

(c) Any Person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Person’s right to indemnification hereunder, except to the extent such failure has not prejudiced the indemnifying party), and (ii) unless (a) in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim or (b) the indemnifying party has failed within a reasonable time to assume such defense and the indemnified party is or would be reasonably be expected to be materially prejudiced by such delay, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party (in the case of (a) or (b) the indemnified party shall be promptly reimbursed for the expenses of retaining such counsel). If such defense is assumed, the indemnifying party will not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld, conditioned or delayed). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will pay the fees and expenses of one (but not more than one) counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which case the indemnifying party will pay the fees and expenses of one additional counsel for each such indemnified party.

(d) The indemnifying party shall not, except with the approval of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to each indemnified party of a release from all liability in respect to such claim or litigation without any payment, obligation or other consideration provided by such indemnified party.

(e) If the indemnification provided for in this Section 6 is unavailable to or is insufficient to hold harmless an indemnified party under the provisions above in respect to any losses, claims, damages or liabilities referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative fault of the Company on the one hand and the sellers of Registrable Securities and any other sellers participating in the registration statement on the other hand or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative faults referred to in clause (i) above but also the relative benefit of the Company on the one hand and of the sellers of Registrable Securities and any other sellers participating in the registration statement on the other in connection with the statements in the

 

12


registration statement or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the sellers of Registrable Securities and any other sellers participating in the registration statement on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) to the Company bear to the total net proceeds from the offering (before deducting expenses) to the sellers of Registrable Securities and any other sellers participating in the registration statement. The relative fault of the Company on the one hand and of the sellers of Registrable Securities and any other sellers participating in the registration statement on the other shall be determined by reference to, among other things, whether the untrue statement or alleged omission to state a material fact relates to information supplied by the Company or by the sellers of Registrable Securities or other sellers participating in the registration statement and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

The Company and the sellers of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation (even if the sellers of Registrable Securities were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 6 , no seller of Registrable Securities shall be required to contribute any amount in excess of the net proceeds received by such Seller from the sale of Registrable Securities covered by the registration statement filed pursuant hereto. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

(f) The indemnification and contribution by any such party provided for under this Agreement shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract and will remain in full force and effect regardless of any investigation made or omitted by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and will survive the transfer of securities.

7. Participation in Underwritten Registrations .

(a) No Person may participate in any registration hereunder which is underwritten unless such Person (i) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements approved by the Person or Persons entitled hereunder to approve such arrangements (including pursuant to the terms of any over-allotment or “green shoe” option requested by the managing underwriter(s), provided that no holder of Registrable Securities will be required to sell more than the number of Registrable Securities that such holder has requested the Company to include in any registration) and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents

 

13


reasonably required under the terms of such underwriting arrangements; provided that no holder of Registrable Securities included in any underwritten registration shall be required to make any representations or warranties to the Company or the underwriters (other than representations and warranties regarding such holder and such holder’s intended method of distribution) or to undertake any indemnification obligations to the Company or the underwriters with respect thereto, except as otherwise provided in Section 6 hereof.

(b) Each Person that is participating in any registration hereunder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 4(e) , such Person will forthwith discontinue the disposition of its Registrable Securities pursuant to the registration statement until such Person’s receipt of the copies of a supplemented or amended prospectus as contemplated by Section 4(e) . In the event the Company shall give any such notice, the applicable time period mentioned in Section 4(b) during which a Registration Statement is to remain effective shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to this Section 7 to and including the date when each seller of Registrable Securities covered by such registration statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 4(e) .

8. Current Public Information . At all times after the Company has filed a registration statement with the Securities and Exchange Commission pursuant to the requirements of either the Securities Act or the Securities Exchange Act, the Company shall, except as otherwise agreed to in writing by the holders of a majority of the TPG Group Registrable Securities, file all reports required to be filed by it under the Securities Act and the Securities Exchange Act and the rules and regulations adopted by the Securities and Exchange Commission thereunder, and will take such further action as any holder or holders of Registrable Securities may reasonably request, all to the extent required to enable such holder or holders to sell Registrable Securities pursuant to Rule 144 adopted by the Securities and Exchange Commission under the Securities Act (as such rule may be amended from time to time) or any similar rule or regulation hereafter adopted by the Securities and Exchange Commission.

9. Definitions .

Agreement ” has the meaning set forth in the preamble.

Amin Group ” means, collectively, Tarang and Hirni Amin Revocable Trust, dated April 16, 2004, Amin ### Irrevocable Trust, dated December 6, 2012 and Amin ### Irrevocable Trust, dated December 6, 2012.

Amin Group Registrable Securities ” has the meaning set forth in Section 1(a) .

application ” has the meaning set forth in Section 6 .

Company ” has the meaning set forth in the preamble.

Demand Registrations ” has the meaning set forth in Section 1(a) .

 

14


Free Writing Prospectus ” means a free-writing prospectus, as defined in Rule 405 of the Securities Act.

Holdback Extension ” has the meaning set forth in Section 3(a) .

Holdback Period ” has the meaning set forth in Section 3(a) .

Indemnitee ” and “ Indemnitees ” have the meanings set forth in Section 6(a) .” Long-Form Registrations ” has the meaning set forth in Section 1(a) .

JAC Group ” has the meaning set forth in Section 1(a) .

JAC Group Registrable Securities ” has the meaning set forth in Section 1(a) .

Non-TPG Group ” has the meaning set forth in the preamble.

Other Registrable Securities ” means (i) any common equity securities of the Company or any Subsidiary thereof from time to time held by the Non-TPG Group, and (ii) common equity securities of the Company issuable with respect to the securities referred to in clause (i) above by way of dividend, distribution, split or combination of securities, or any recapitalization, merger, consolidation or other reorganization. As to any particular Other Registrable Securities, such securities shall cease to be Other Registrable Securities when they (a) have been distributed to the public pursuant to an offering registered under the Securities Act or sold to the public through a broker, dealer or market maker in compliance with Rule 144 under the Securities Act (or any similar rule then in force), (b) have been purchased or otherwise acquired by TPG Group, (c) have been effectively registered under a registration statement including a registration statement on Form S-8 (or any successor form), or (d) have been repurchased by the Company or any Subsidiary.

Other Securities ” has the meaning set forth in Section 3(a) .

Permitted Transfer ” has the meaning set forth in Section 3(e) .

Person ” means an individual, a partnership, a joint venture, an association, a joint stock company, a corporation, a limited liability company, a trust, an unincorporated organization, an investment fund, any other business entity or a governmental entity or any department, agency or political subdivision thereof.

Piggyback Registration ” has the meaning set forth in Section 2(a) .

Public Sale ” means any sale of Registrable Securities or other securities to the public pursuant to an offering registered under the Securities Act or through a broker, dealer or market maker pursuant to the provisions of Rule 144 promulgated under the Securities Act.

Registrable Securities ” means, collectively, the TPG Group Registrable Securities and the Other Registrable Securities. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when they (a) have been distributed to the public pursuant to an offering registered under the Securities Act or sold to the public through a

 

15


broker, dealer or market maker in compliance with Rule 144 under the Securities Act (or any similar rule then in force), (b) repurchased by the Company or any Subsidiary, or (c) have been effectively registered under a registration statement including a registration statement on Form S-8 (or any successor form).

Registration Expenses ” has the meaning set forth in Section 5(a) .

Required Registration ” has the meaning set forth in Section 1(c) .

Securities ” has the meaning set forth in Section 3(a) .

Securities Act ” means the Securities Act of 1933, as amended, or any similar federal law then in force.

Securities and Exchange Commission ” means the United States Securities and Exchange Commission and includes any governmental body or agency succeeding to the functions thereof.

Securities Exchange Act ” means the Securities Exchange Act of 1934, as amended, or any similar federal law then in force.

Short-Form Registrations ” has the meaning set forth in Section 1(a) .

Stockholders ” has the meaning set forth in the preamble.

Stockholders Agreement ” means the Stockholders Agreement of the Company, dated as of the date hereof, as amended from time to time.

Subsidiary ” means, with respect to any Person, any corporation, limited liability company, partnership, association, or business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a limited liability company, partnership, association, or other business entity (other than a corporation), a majority of partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association, or other business entity (other than a corporation) if such Person or Persons shall be allocated a majority of limited liability company, partnership, association, or other business entity gains or losses or shall be or control any managing director or general partner or a majority of the members of the governing body of such limited liability company, partnership, association, or other business entity.

TPG Group ” has the meaning set forth in the preamble.

 

16


TPG Group Registrable Securities ” means (i) any common equity securities of the Company or any Subsidiary thereof from time to time held by the TPG Group, (ii) common equity securities of the Company or any Subsidiary thereof issued or issuable with respect to the securities referred to in clause (i) above by way of dividend, distribution, split or combination of securities, or any recapitalization, merger, consolidation or other reorganization, and (iii) other common equity securities of the Company held by Persons holding securities described in clauses (i) or (ii) above. As to any particular TPG Group Registrable Securities, such securities shall cease to be TPG Group Registrable Securities when they (a) have been distributed to the public pursuant to an offering registered under the Securities Act or sold to the public through a broker, dealer or market maker in compliance with Rule 144 under the Securities Act (or any similar rule then in force), (b) have been purchased or otherwise acquired by any employee of the Company or its Subsidiaries, (c) have been effectively registered under a registration statement including a registration statement on Form S-8 (or any successor form), or (d) have been repurchased by the Company or any Subsidiary.

10. Miscellaneous .

(a) Notices . Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, or received by certified mail, return receipt requested, or sent by reputable overnight courier service (charges prepaid) to the Company at the address set forth below and to any other recipient at the address indicated on the Schedule I and Schedule II attached hereto or to such other address or to the attention of such other Person as the recipient party has specified by prior written notice to the sending party. Notices will be deemed to have been given hereunder (i) when delivered personally to the recipient, (ii) one (1) business day after being sent to the recipient by reputable overnight courier service (charges prepaid), (iii) upon machine-generated acknowledgment of receipt after transmittal by facsimile if so acknowledged to have been received before 5:00 p.m. on a business day at the location of receipt and otherwise on the next following business day, provided that such notice, demand or other communication is also deposited within twenty-four (24) hours thereafter with a reputable overnight courier service (charges prepaid) for delivery to the same Person, (iv) upon transmittal by e-mail if transmitted before 5:00 p.m. (on a business day) in the time zone of the address (which address is determined in the preceding sentence) of the recipient and otherwise on the next following business day, or (iv) five (5) days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. The Company’s address is:

J.A. Cosmetics Holdings, Inc.

c/o TPG Growth

345 California Street, Suite 3300

San Francisco, CA 94104

Attention: ###

Fax: ###

Email: ###

 

17


with copies (which shall not constitute notice) to:

Kirkland & Ellis LLP

333 South Hope Street

Los Angeles, California 90071

Attention: ###

                  ###

Fax: ###

Email: ###

            ###

(b) No Inconsistent Agreements . The Company will not hereafter enter into any agreement with respect to its securities which is inconsistent with or violates the rights granted to the holders of Registrable Securities in this Agreement. Except as provided in this Agreement, the Company shall not grant to any Persons the right to request the Company to register any equity securities of the Company, or any securities, options, or rights convertible or exchangeable into or exercisable for such securities, without the prior written consent of the holders of a majority of the Registrable Securities.

(c) Adjustments Affecting Registrable Securities . The Company will not take any action, or permit any change to occur, with respect to its securities which would materially and adversely affect the ability of the holders of Registrable Securities to include such Registrable Securities in a registration undertaken pursuant to this Agreement or which would adversely affect the marketability of such Registrable Securities in any such registration (including effecting a stock split, combination of shares or other recapitalization).

(d) Remedies . Any Person having rights under any provision of this Agreement shall be entitled to enforce such rights specifically to recover damages caused by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or other security) for specific performance and for other injunctive relief in order to enforce or prevent violation of the provisions of this Agreement.

(e) Amendments and Waivers . Except as otherwise provided herein, this Agreement may be amended, modified, or waived with the written consent of the holders of the TPG Group Registrable Securities; provided that if any such amendment, modification, or waiver would, individually or in the aggregate, adversely affect in any material respect the rights, preferences or privileges of any Other Registrable Securities (without regard to any effect on the individual circumstances of the holder of such Other Registrable Securities) disproportionately to the effect of such amendment, modification or waiver on the rights, preferences or privileges of the TPG Group Registrable Securities, such amendment, modification, or waiver shall also require the written consent of the holders of a majority of the Other Registrable Securities. The board of directors of the Company may, without the consent of any other Stockholder, amend Schedule I and Schedule II to reflect the issuance or Permitted Transfer to any Stockholder consistent with this Agreement.

 

18


(f) Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto (and the Persons specifically identified in Section 6 ) and their respective successors and assigns. In addition, and whether or not any express assignment shall have been made, the provisions of this Agreement which are for the benefit of the holders of Registrable Securities (or any portion thereof) as such shall be for the benefit of and enforceable by any subsequent holder of any Registrable Securities (or of such portion thereof); provided , that such subsequent holder of Registrable Securities shall be required to execute and deliver to the Company a Joinder Agreement substantially in the form attached hereto as Exhibit A agreeing to be bound by its terms.

(g) Severability . Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or the effectiveness or validity of any provision in any other jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

(h) Entire Agreement . Except as otherwise expressly set forth herein, this document embodies the complete agreement and understanding among the parties hereto with respect to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.

(i) Counterparts; Facsimile Signature . This Agreement may be executed simultaneously in two or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together will constitute one and the same Agreement. This Agreement may be executed by facsimile signature.

(j) Descriptive Headings . The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.

(k) Governing Law . This Agreement, including all issues concerning the relative rights of the Company and the Stockholders with respect to the matters set forth herein, shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the State of Delaware.

(l) Mutual Waiver of Jury Trial . BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ALL

 

19


RIGHTS TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(m) Business Days . If any time period for giving notice or taking action hereunder expires on a day which is a Saturday, Sunday or legal holiday in the state in which the Company’s chief executive office is located, the time period shall automatically be extended to the business day immediately following such Saturday, Sunday or legal holiday.

* * * * *

 

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IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the day and year first above written.

 

THE COMPANY:
J.A. COSMETICS HOLDINGS, INC.
By:  

/s/ Ronald Cami

Name:   Ronald Cami
Title:   Vice President

 

Signature Pages - Registration Rights Agreement


THE TPG GROUP :
TPG ELF HOLDINGS, L.P.

By: TPG Growth II Advisors, Inc.,

its general partner

By:  

/s/ Ronald Cami

Name:   Ronald Cami
Title:   Vice President

 

Signature Pages - Registration Rights Agreement


THE NON-TPG GROUP :
J.A. COSMETICS, CORP.
By:  

/s/ Alan Shamah

Name:   Alan Shamah
Title:   President

 

Signature Pages - Registration Rights Agreement


Tarang and Hirni Amin Revocable Trust, dated April 16, 2004
By:   /s/ Tarang P. Amin
Name:   Tarang P. Amin
Title:   Trustee
By:   /s/ Hirni T. Amin
Name:   Hirni T. Amin
Title:   Trustee

 

Signature Pages - Registration Rights Agreement


Amin ### Irrevocable Trust, dated December 6, 2012
By:   /s/ Tarang P. Amin
Name:   Tarang P. Amin
Title:   Trustee
By:   /s/ Hirni T. Amin
Name:   Hirni T. Amin
Title:   Trustee

 

Signature Pages - Registration Rights Agreement


Amin ### Irrevocable Trust, dated December 6, 2012
By:   /s/ Tarang P. Amin
Name:   Tarang P. Amin
Title:   Trustee
By:   /s/ Hirni T. Amin
Name:   Hirni T. Amin
Title:   Trustee

 

Signature Pages - Registration Rights Agreement


/s/ Carlos Aquino
Carlos Aquino

 

Signature Pages - Registration Rights Agreement


/s/ William Zhao
William Zhao

 

Signature Pages - Registration Rights Agreement


MRS TRUST
By:  

/s/ Mitch Otolski

Name:   Mitch Otolski
Title:   Agent

 

Signature Pages - Registration Rights Agreement


PENNANTPARK INVESTMENT CORPORATION
    By:  

/s/ Arthur H. Penn

    Name:   Arthur H. Penn
    Title:   Chief Executive Officer

 

Signature Pages - Registration Rights Agreement


PENNANTPARK FLOATING RATE CAPITAL LTD.
    By:  

/s/ Arthur H. Penn

    Name:   Arthur H. Penn
    Title:   Chief Executive Officer

 

Signature Pages - Registration Rights Agreement


PENNANTPARK CREDIT OPPORTUNITIES FUND, LP
    By:  

/s/ Arthur H. Penn

    Name:   Arthur H. Penn
    Title:   Managing Member of PennantPark Capital, LLC, the general partner of the Fund

 

Signature Pages - Registration Rights Agreement


ALLY COMMERCIAL FINANCE LLC
By:  

/s/ Kevin J. Boland

Name:   Kevin J. Boland
Title:   Chief Risk Officer

 

Signature Pages - Registration Rights Agreement


Milsten/Conner Trust dated October 17, 2008
By:  

/s/ Scott Milsten

Name:   Scott Milsten
Title:   Trustee

 

Signature Pages - Registration Rights Agreement


SCHEDULE I

As of January 31, 2014

The TPG Group

 

Name

  

Address

TPG elf Holdings, L.P.    ###
   ###


SCHEDULE II

As of January 31, 2014

The Non-TPG Group

 

Name

   Address
J.A. Cosmetics, Corp.    ###
   ###
   ###
   ###
   ###
   ###
Tarang and Hirni Amin Revocable Trust, dated April 16, 2004    ###
   ###
   ###
   ###
   ###
Amin ### Irrevocable Trust, dated December 6, 2012    ###
   ###
   ###
   ###
   ###
Amin ### Irrevocable Trust, dated December 6, 2012    ###
   ###
   ###
   ###
   ###
Carlos Aquino    ###
   ###
   ###
   ###
   ###
William Zhao    ###
   ###
   ###
   ###
   ###
   ###
MRS Trust    ###
   ###
   ###
   ###
   ###
PennantPark Investment Corporation    ###
   ###

###


PennantPark Floating Rate Capital Ltd.    ###
   ###
   ###
PennantPark Credit Opportunities Fund, LP    ###
   ###
   ###
Ally Commercial Finance LLC    ###
   ###
   ###
   ###
Milsten/Conner Trust dated October 17, 2008    ###
   ###
   ###


EXHIBIT A

FORM OF JOINDER AGREEMENT

This Joinder Agreement is being delivered to J.A. Cosmetics Holdings, Inc., a Delaware corporation (the “ Company” ), pursuant to Section 10 of that certain Registration Rights Agreement, dated as of                 , 2014 (as amended from time to time, the “ Registration Rights Agreement ”), among the Company and the Stockholders (as defined therein). Capitalized terms used herein shall have the meanings assigned to such terms in the Registration Rights Agreement.

The undersigned hereby executes and delivers to the Company this Joinder Agreement, pursuant to which the undersigned hereby becomes a party to the Registration Rights Agreement and agrees to be bound by the provisions of the Registration Rights Agreement with respect to the                      Registrable Securities held by the undersigned.

Any notice provided for in the Registration Rights Agreement should be delivered to the undersigned at the address set forth below:

 

 

 

 

Telephone:  

 

Facsimile:  

 

 

Dated:  

 

 

 

 

[                                ]

 

[Registration Rights Agreement - Joinder]

Exhibit 4.3

E.L.F. BEAUTY, INC.

AMENDED AND RESTATED STOCKHOLDERS AGREEMENT

Dated as of [            ], 2016


TABLE OF CONTENTS

 

         Page  

SECTION 1.

 

COVENANTS, REPRESENTATIONS AND WARRANTIES

     1   

SECTION 2.

 

RESTRICTIONS ON TRANSFER OF COMPANY STOCK

     1   

            2A.

  Restrictions on Transfer      1   

            2B.

  Void Transfers      2   

            2C.

  Effect of Assignment      2   

SECTION 3.

 

BOARD OF DIRECTORS; OBSERVERS; VOTING

     2   

            3A.

 

Composition of the Board

     2   

            3B.

 

TPG/Rollover Stockholder Representation

     3   

            3C.

 

TPG Committee Representation

     4   

            3D.

 

Vacancies and Removal

     4   

            3E.

 

Subsidiary Boards

     4   

            3F.

 

Additional Unaffiliated Directors

     4   

            3G.

 

Board Meeting Expenses

     5   

            3H.

 

Indemnification

     5   

            3I.

 

Irrevocable Proxy

     5   

            3J.

 

Termination of Voting Agreement

     6   

SECTION 4.

 

RESTRICTIONS

     6   

            4A.

 

Consent Rights of TPG

     6   

SECTION 5.

 

FINANCIAL INFORMATION

     7   

            5A.

 

Quarterly Financial Statements

     7   

            5B.

 

Annual Financial Statements

     7   

            5C.

 

Access

     7   

SECTION 6.

 

CONFIDENTIALITY

     7   

            6A.

 

Confidentiality

     7   

            6B.

 

Sharing Information

     9   

SECTION 7.

 

DEFINITIONS

     9   

SECTION 8.

 

MISCELLANEOUS

     13   

            8A.

 

Amendment and Waiver

     13   

            8B.

 

Freedom to Pursue Opportunities

     13   

            8C.

 

Severability

     13   

            8D.

 

Entire Agreement

     13   

            8E.

 

Successors and Assigns

     14   

            8F.

 

Counterparts

     14   

            8G.

 

Remedies

     14   

            8H.

 

Notices

     14   

            8I.

 

Governing Law

     15   

            8J.

 

Descriptive Headings

     15   

            8K.

 

Understanding among the Stockholders

     15   

 


AMENDED AND RESTATED STOCKHOLDERS AGREEMENT

This Amended and Restated Stockholders Agreement (this “ Agreement ”) is entered into as of [            ], 2016, by and among (i) e.l.f. Beauty, Inc., a Delaware corporation (f/k/a J.A. Cosmetics Holdings, Inc.) (the “ Company ”), (ii) TPG elf Holdings, L.P., a Delaware limited partnership (together with its Permitted Transferees designated as such in such Permitted Transferees’ Joinder Agreements, “ TPG ”), (iii) each of the Persons listed on the Schedule of Rollover Stockholders attached hereto as such schedule may be modified or amended from time to time to reflect any Transfer to Permitted Transfers (the “ Rollover Stockholders ”), and (iv) each other Person listed on the Schedule of Additional Stockholders attached hereto as such schedule may be modified or amended from time to time to reflect each Person after the date hereof who at any time acquires Equity Securities of the Company and agrees to become party to and bound by this Agreement by signing a Joinder Agreement (“ Joinder Agreement ”), in the form attached hereto as Exhibit A (each an “ Additional Stockholder ” and collectively with TPG and the Rollover Stockholders, the “ Stockholders ”). Each capitalized term used and not otherwise defined herein shall have the meaning set forth in Section 7 .

WHEREAS , the Company, TPG, the Rollover Stockholders and certain other Persons entered into a Stockholders Agreement, dated as of January 31, 2014 (the “ Existing Stockholders Agreement ”);

WHEREAS , in connection with the intended Public Offering of the Company, the Stockholders desire to amend and restate in their entirety the terms of the Existing Stockholders Agreement to provide for certain governance rights and other matters and to set forth the rights and obligations of the Stockholders following the Public Offering;

NOW, THEREFORE , in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows:

SECTION 1. COVENANTS, REPRESENTATIONS AND WARRANTIES

Each Stockholder hereby represents and warrants to the Company and acknowledges that: (i) to the extent applicable, the execution, delivery and performance of this Agreement have been duly authorized by such Stockholder and do not require such Stockholder to obtain any consent or approval that has not been obtained and do not contravene or result in a default under any provision of any law or regulation applicable to such Stockholder or other governing documents or any agreement or instrument to which such Stockholder is a party or by which such Stockholder is bound; (ii) such Stockholder has the power and authority to enter into this Agreement and to carry out its obligations hereunder; and (iii) this Agreement is valid, binding and enforceable against such Stockholder in accordance with its terms.

 

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SECTION 2. RESTRICTIONS ON TRANSFER OF COMPANY STOCK

2A. Restrictions on Transfer .

(i) No Stockholder shall Transfer any interest in any Shares other than (w) pursuant to and in compliance with this Section 2 , (x) pursuant to and in accordance with the Registration Rights Agreement, (y) pursuant to a Public Sale or (z) to any of its Permitted Transferees.

(ii) Prior to consummating, or committing to consummate, any Transfer of any Shares (other than pursuant to a Public Sale) to any Person (including, for the avoidance of doubt, any Permitted Transferees), and as a condition precedent to any such Transfer, the Transferring Stockholder shall cause each prospective Transferee thereof to execute and deliver to the Company a Joinder Agreement substantially in the form attached hereto as Exhibit A . Any Transfer or attempted Transfer of any Shares in violation of the foregoing or any other provision of this Agreement shall be void ab initio , and the Company shall not record such Transfer on its books or treat any purported Transferee of such Shares as the owner of such Shares for any purpose.

(iii) No Stockholder shall avoid the provisions of this Agreement by making one or more Transfers to one or more Persons and then disposing of all or any portion of such Stockholder’s interest in any such Person, or by issuing any equity securities of such Person other than to the current direct and indirect holders of such equity interests. Each Stockholder that is not a natural Person shall cause the holders of legal and beneficial interests in such Stockholder to not avoid the provisions of this Agreement by disposing all or any portion of such Person’s interest in such Stockholder. Any Transfer or attempted Transfer in violation of this Section 2A(iii) shall be void and otherwise subject to Section 2A(ii) .

2B. Void Transfers . Any Transfer by any Stockholder of any Shares or other interest in the Company in contravention of this Agreement in any respect (including the failure of the Transferee to execute a Joinder Agreement in accordance with Section 2A(ii) ) shall be void and ineffectual and shall not bind or be recognized by the Company or any other Person.

2C. Effect of Assignment . Any Stockholder who shall assign any Shares or other interest in the Company shall cease to be a Stockholder of the Company with respect to such Shares or other interest and shall no longer have any rights or privileges of a Stockholder with respect to such Shares or other interest.

SECTION 3. BOARD OF DIRECTORS; OBSERVERS; VOTING

3A. Composition of the Board .   The authorized number of directors on the Company’s Board shall initially be seven (7); three (3) of whom shall initially be representatives designated by TPG (the “ TPG Directors ”), one (1) of whom shall initially be a representative designated by the Rollover Stockholders (the “ Rollover Stockholders Director ”), one (1) of whom shall initially be the then-current Chief Executive Officer of the Company (the “ CEO Director ”), and two (2) of whom shall initially meet the independence criteria set forth in Rule 10A-3 under the 1934 Securities Act (the “ Independent Directors ”). The foregoing directors shall be divided into three classes of directors, each of which directors shall serve for staggered three (3) year-terms and who shall initially be allocated as follows:

(i) the class I directors shall include: one (1) TPG Director and one (1) Independent Director;

 

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(ii) the class II directors shall include: one (1) TPG Director and the Rollover Stockholders Director; and

(iii) the class III directors shall include: one (1) TPG Director, the CEO Director and one (1) Independent Director.

The initial term of the class I directors shall expire at the Company’s 2017 annual meeting of stockholders at which directors are elected. The initial term of the class II directors shall expire at the Company’s 2018 annual meeting of stockholders at which directors are elected. The initial term of the class III directors shall expire at the Company’s 2019 annual meeting at which directors are elected. Any additional authorized directors shall be assigned to classes in as nearly as equal number as possible.

3B. TPG/Rollover Stockholder Representation . Each Stockholder shall vote all of his, her or its Shares and any other voting securities of the Company over which such Stockholder has voting control (whether at a stockholders’ meeting which has been duly called or by written consent, if applicable) and shall take all other Necessary Action within his, her or its control (including attendance at meetings in person or by proxy for purposes of obtaining a quorum and execution of written consents in lieu of meetings, if applicable), and the Company shall take all Necessary Action within its control (including calling special board and stockholder meetings), so that the Board shall at all times be composed of the following persons:

(i) for so long as TPG holds a number of shares of Common Stock representing at least the percentage of the outstanding Common Stock shown below, the Company shall, and the Stockholders shall take all Necessary Action to, include in the slate of nominees recommended by the Board for election as directors at each applicable annual or special meeting of stockholders at which directors are to be elected that number of individuals designated by TPG that, if elected, will result in TPG having the number of directors serving on the Board that is shown below.

 

Percentage of Outstanding Common Stock

   Number of TPG Directors  

30% or greater

     3   

Less than 30% but greater than or equal to 20%

     2   

Less than 20% but greater than or equal to 5%

     1   

Less than 5%

     0   

 

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(ii) for so long as the Rollover Stockholders hold a number of shares of Common Stock representing at least ten percent (10%) of the outstanding Common Stock, the Company shall, and the Stockholders shall take all Necessary Action to, include in the slate of nominees recommended by the Board for election as directors at each applicable annual or special meeting of stockholders at which directors are to be elected one (1) individual designated by the Rollover Stockholders.

(iii) for so long as the Stockholders hold a number of shares of Common Stock representing at least fifty percent (50%) of the outstanding Common Stock, the Company shall, and the Stockholders shall take all Necessary Action to, include in the slate of nominees recommended by the Board for election as directors at each applicable annual or special meeting of stockholders at which directors are to be elected the CEO Director.

3C. TPG Committee Representation . Subject to applicable laws and stock exchange regulations, TPG shall have the right to have a representative appointed to serve on each committee of the Board other than the audit committee for so long as TPG has the right to designate at least one (1) director for election to the Board.

3D. Vacancies and Removal . Except as provided for in Section 3A and Section 3B , and to the extent not inconsistent with Section 141(k) of the General Corporation Law of the State of Delaware and the Company’s Governing Documents, (i) TPG and the Rollover Stockholders shall have the exclusive right to remove their respective directors from the Board, and the Board and the Stockholders shall take all Necessary Action to cause the removal of any of the TPG Directors or the Rollover Stockholders Director at the request of TPG or the Rollover Stockholders, as applicable, and (ii) TPG and the Rollover Stockholders shall have the exclusive right to designate for election to the Board directors to fill vacancies created by reason of death, removal or resignation of their respective directors, and the Board and the Stockholders shall take all Necessary Action to cause any such vacancies to be filled by replacement directors designated by TPG or the Rollover Stockholders, as applicable, as promptly as reasonably practicable; provided, that, for the avoidance of doubt and notwithstanding anything to the contrary in this paragraph, TPG and the Rollover Stockholders shall not have the right to designate a replacement director, and the Board and the Stockholders shall not be required to take any action to cause any vacancy to be filled with any such TPG Director or Rollover Stockholder Director, as applicable, to the extent that election or appointment of such TPG Director or Rollover Stockholder Director to the Board would result in a number of directors designated by TPG or the Rollover Stockholders in excess of the number of directors that TPG or the Rollover Stockholders are then entitled to designate for membership on the Board pursuant to Section 3B .

3E. Subsidiary Boards . The Company shall at all times, unless otherwise determined by the Board in its sole discretion, cause the board of directors of e.l.f. Cosmetics, Inc. to be composed of the same persons who are then members of the Board pursuant to Section 3A and Section 3B .

3F. Additional Unaffiliated Directors . For so long as TPG has the right to designate at least one (1) director for nomination under this Agreement, the Company will take

 

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all Necessary Action to ensure that the number of directors serving on the Board shall not exceed nine (9); provided, that the number of directors may be increased if necessary to satisfy the requirements of applicable laws and stock exchange regulations.

3G. Board Meeting Expenses . The Company shall pay all reasonable reimbursable out-of-pocket costs and expenses (including, but not limited to, travel and lodging) incurred by each member of the Board incurred in the course of his or her service hereunder, including in connection with attending regular and special meetings of the Board, any board of directors or board of managers of each of the Company’s Subsidiaries and/or any of their respective committees.

3H. Indemnification . The Company shall obtain customary director and officer indemnity insurance on reasonable terms. The Company hereby acknowledges that any director, officer or other indemnified person covered by any such indemnity insurance policy (any such Person, an “ Indemnitee ”) may have certain rights to indemnification, advancement of expenses and/or insurance provided by TPG or one or more of its Affiliates (collectively, the “ Fund Indemnitors ”). The Company hereby (i) agrees that the Company and any of its Subsidiaries that provides indemnity shall be the indemnitor of first resort (i.e., its or their obligations to an Indemnitee shall be primary and any obligation of any Fund Indemnitor to advance expenses or to provide indemnification for the same expenses or liabilities incurred by an Indemnitee shall be secondary), (ii) agrees that it shall be required to advance the full amount of expenses incurred by an Indemnitee and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement or any other agreement between the Company and an Indemnitee, without regard to any rights an Indemnitee may have against any Fund Indemnitor or its insurers, and (iii) irrevocably waives, relinquishes and releases the Fund Indemnitors from any and all claims against the Fund Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Fund Indemnitors on behalf of an Indemnitee with respect to any claim for which such Indemnitee has sought indemnification from the Company shall affect the foregoing and the Fund Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnitee against the Company.

3I. Irrevocable Proxy . In order to secure the obligation of each holder of Shares to vote his, her or its Shares and other voting securities of the Company in accordance with Section 3A and Section 3B , for so long as TPG has the right to designate at least one (1) director for nomination under this Agreement, each holder of Shares appoints TPG as his, her or its true and lawful proxy and attorney-in-fact, with full power of substitution, to vote all of his, her or its Shares and other voting securities of the Company (whether now owned or hereafter acquired) for all matters in connection therewith; provided, however, that the irrevocable proxy granted to TPG by an Additional Stockholder hereunder shall automatically terminate at such time as such Additional Stockholder becomes a Terminated Stockholder (as defined in Section 3J below ). TPG may exercise the irrevocable proxy granted to it hereunder at any time that the vote, consent or approval of any holder of Shares may be required pursuant Section 3A and Section 3B . The proxies and powers granted by each such Stockholder pursuant to this Section 3I are coupled with an interest and are given to secure the performance of each such Stockholder’s obligations

 

5


under this Agreement. Such proxies and powers shall be irrevocable and shall survive the death, incompetency, disability, bankruptcy or dissolution of such Stockholder and the subsequent holders of such Stockholder’s Shares or other voting securities.

3J. Termination of Voting Agreement . In the event any Additional Stockholder who is or was classified as an “officer” of the Company as defined in Rule 16a-1 under the 1934 Securities Act is no longer an “officer,” director or “ten percent beneficial owner” (as defined in Rule 16a-2 under the 1934 Securities Act) (each, a “ Section 16 Reporting Person ”), such Additional Stockholder and any other Additional Stockholder which (A) is not an Affiliate of any other Additional Stockholder that remains a Section 16 Reporting Person and (B) of which the “officer” or a family member thereof is the trustee, trustor, grantor, donor, settlor or beneficiary, or that was otherwise established by the Terminated Stockholder or such Terminated Stockholder’s family member (collectively, the “ Terminated Stockholder ”) shall no longer be subject to any further obligations under Sections 2 , 3B and 3D and such obligations shall terminate effective immediately upon the termination of such Terminated Stockholder’s status as a Section 16 Reporting Person.

SECTION 4. RESTRICTIONS

4A. Consent Rights of TPG . For so long as TPG owns or holds of record, directly or indirectly, shares of Common Stock representing at least 30% of the outstanding Common Stock, the Company shall not, and shall cause each of its Subsidiaries to not, take any of the following actions without the prior written consent of TPG:

(i) except as expressly contemplated by this Agreement, authorize, issue or enter into any agreement providing for the issuance (contingent or otherwise) of (x) any notes or debt securities with options, warrants or other rights to acquire Equity Securities (including any notes or debt securities convertible into or exchangeable for Equity Securities or options, warrants or other rights to acquire Equity Securities issued in connection therewith) of the Company or any Subsidiary or otherwise containing profit participation features or (y) any Equity Securities of the Company or any Subsidiary other than Equity Securities issued to employees or directors of, or consultants or advisors to, the Company or any Subsidiary pursuant to a plan, agreement or arrangement approved by the Board;

(ii) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction or series of transactions;

(iii) other than with respect to transactions between or among the Company and/or its Subsidiaries, create, incur, assume or suffer to exist any indebtedness in excess of $50,000,000 for borrowed money, guaranties of borrowed money or capitalized leases other than indebtedness under the terms and provisions of the Credit Facility; and

(iv) increase or decrease the size of the Company’s Board other than in accordance with Section 3 .

 

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SECTION 5. FINANCIAL INFORMATION

5A. Quarterly Financial Statements . Concurrently with the distribution of the Company’s quarterly financial statements to the audit committee of the Board for review, for so long as TPG has the right to designate at least one (1) director for nomination under this Agreement, the Company shall deliver to TPG an unaudited balance sheet of the Company as of the last day of each of the first three (3) fiscal quarters of each fiscal year and the related unaudited consolidated statements of income, shareholders equity and cash flows for such fiscal quarter and for the fiscal year-to-date period then ended.

5B. Annual Financial Statements . Concurrently with the distribution of the Company’s annual financial statements to the audit committee of the Board for review, for so long as TPG has the right to designate at least one (1) director for nomination under this Agreement, the Company shall deliver to TPG an audited balance sheet of the Company as of the end of such fiscal year and the related audited consolidated statements of income, shareholders equity and cash flows for such fiscal year (it being understood that the Company shall not in any event be obligated to deliver any such audited financial statements prior to one hundred fifty (150) days after completion of the applicable fiscal year unless such audited financial statements have been released earlier).

5C. Access . For so long as TPG holds at least five percent (5%) of the outstanding Common Stock, the Company shall, and shall cause its Subsidiaries to, permit TPG and its respective designated representatives, at reasonable times and upon reasonable prior notice to the Company, to review the books and records of the Company or any of such Subsidiaries and to discuss the affairs, finances and condition of the Company or any of such Subsidiaries with the officers of the Company or any such Subsidiary.

SECTION 6. CONFIDENTIALITY

6A. Confidentiality .

(i) Each Stockholder recognizes and acknowledges that it has and may in the future receive certain confidential and proprietary information and trade secrets of the Company and its Subsidiaries, including regarding identifiable, specific and discrete business opportunities being pursued by the Company or its Subsidiaries (the “ Confidential Information ”). Except as otherwise agreed to by the Company and TPG, each Stockholder agrees that it will not, and shall cause each of its directors, officers, equityholders, partners, employees, agents and members not to, during or after the term of this Agreement, whether directly or indirectly through an Affiliate or otherwise, disclose Confidential Information to any Person for any reason or purpose whatsoever, except (a) to authorized directors, officers, representatives, agents and employees of the Company or its Subsidiaries and as otherwise may be proper in the course of performing such Stockholder’s obligations, or enforcing such Stockholder’s rights, under this Agreement and the agreements expressly contemplated hereby; (b) as part of such Stockholder’s normal reporting, rating or review procedure (including normal credit rating or pricing process), or in connection with such Stockholder’s or such Stockholder’s Affiliates’ normal fund raising, marketing, informational or reporting activities, or to such Stockholder’s (or any of its

 

7


Affiliates’) Affiliates, auditors, attorneys or other agents who need to know such Confidential Information and are subject to confidentiality obligations; (c) to any bona fide prospective purchaser of the equity or assets of such Stockholder or its Affiliates or the shares of Company Stock held by such Stockholder, or prospective merger partner of such Stockholder or its Affiliates, provided that such prospective purchaser or merger partner agrees to be bound by a confidentiality agreement consistent with the provisions of this Section 6 ; or (d) as is required to be disclosed by order of a court of competent jurisdiction, administrative body or governmental body, or by subpoena, summons or legal process, or by law, rule or regulation, provided that (1) in the event that a Stockholder is requested or required, pursuant to the type of process described in this clause (d), to disclose any Confidential Information such Stockholder will provide the Company with prompt notice of any such request or requirement and shall cooperate with the Company so that the Company may, in its discretion, seek a protective order or other appropriate remedy, if available, (2) such Stockholder will give the Company written notice of the information to be disclosed as far in advance as practicable, and (3) such Stockholder will cooperate with the Company’s efforts to obtain, at the Company’s sole expense, a protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed, and in the event that such protective order is not obtained (or sought by the Company after notice), the Stockholder (A) shall furnish only that portion of the Confidential Information which, upon advice of counsel, is legally required to be furnished and (B) will exercise its reasonable efforts to obtain adequate assurances that confidential treatment will be accorded the Confidential Information by its recipients. For purposes of this Section 6 , “Confidential Information” shall not include any information which (x) such Person learns from a source other than the Company or any of its Subsidiaries who is at the time of the disclosure not known by such Person to be bound by any confidentiality obligations, (y) is disclosed in a Company prospectus or other similar Company document disseminated to the public, or (z) otherwise becomes publicly known and made generally available through no wrongful act of any Stockholder. Nothing in this Section 6 shall in any way limit or otherwise modify the provisions of any other agreement entered into by any Stockholder with the Company or any of its Subsidiaries.

(ii) The Company hereby agrees that it and its Subsidiaries, and its and its Subsidiaries’ respective directors, officers, equityholders, partners, employees, agents and members, with the exception of the TPG Affiliated Persons, shall keep confidential, and shall not disclose to any third Person or use for its own benefit, without prior approval of TPG any non-public information with respect to TPG, or any of its subsidiaries or Affiliates (including any Person in which TPG holds, or contemplates acquiring, an investment, but excluding the Company and its Subsidiaries) (collectively “ TPG Confidential Information ”) that is in the Company’s possession on the date hereof or disclosed after the date of this Agreement to the Company by or on behalf of TPG, or its subsidiaries or Affiliates, provided, that the Company may disclose any such TPG Confidential Information (a) as has become generally available to the public, or was in or has come into the Company’s possession on a non-confidential basis, without, to the Company’s knowledge, a breach of any confidentiality obligations by the Person disclosing such TPG Confidential Information, or has been independently developed by the Company without use of TPG Confidential Information, (b) to the Company’s Affiliates, and its and their respective directors, officers, equityholders, partners, employees, agents, members and professional advisors who need to know such TPG Confidential Information and are subject to

 

8


confidentiality obligations, (c) to the extent necessary in order to comply with any law, order, regulation or ruling applicable to the Company or its Affiliates, or to a regulatory agency with applicable jurisdiction, and (d) as may be required in response to any summons or subpoena or in connection with any litigation or arbitration, it being agreed that, unless such TPG Confidential Information has been generally available to the public, if such TPG Confidential Information is being requested pursuant to a summons or subpoena or a discovery request in connection with a litigation, then (A) the Company shall give TPG notice of such request and shall cooperate with TPG so that TPG may, in its discretion, seek a protective order or other appropriate remedy, if available, and (B) in the event that such protective order is not obtained (or sought by TPG after notice), the Company (1) shall furnish only that portion of the TPG Confidential Information which, in the written opinion of counsel, is legally required to be furnished and (2) will exercise its reasonable efforts to obtain adequate assurances that confidential treatment will be accorded TPG Confidential Information by its recipients.

6B. Sharing Information . To the extent permitted by antitrust or competition laws, each Stockholder agrees and acknowledges that the directors designated by TPG may share Confidential Information about the Company and its Subsidiaries with TPG.

SECTION 7. DEFINITIONS

1933 Securities Act ” means the Securities Act of 1933, as amended, and applicable rules and regulations thereunder, and any successor to such statute, rules or regulations. Any reference herein to a specific section, rule or regulation of the 1933 Securities Act shall be deemed to include any corresponding provisions of future law.

1934 Securities Act ” means the Securities Exchange Act of 1934, as amended, and applicable rules and regulations thereunder, and any successor to such statute, rules or regulations. Any reference herein to a specific section, rule or regulation of the 1934 Securities Act shall be deemed to include any corresponding provisions of future law.

Additional Stockholder ” has the meaning set forth in the preface above.

Affiliate ” of any particular Person means any other Person controlling, controlled by or under common control with such particular Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, by contract or otherwise.

Agreement ” means this Agreement, as amended, modified and waived from time to time in accordance with the terms hereof.

Board ” means the board of directors of the Company.

Commission ” means the Securities and Exchange Commission.

Common Stock ” means the shares of common stock, par value $0.01, of the Company.

 

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Company ” has the meaning set forth in the preface above.

Company Stock ” means the Shares and any other shares of capital stock of the Company from time to time outstanding.

Confidential Information ” has the meaning set forth in Section 6 .

Credit Facility ” means the Credit Agreement, dated as of January 31, 2014 (as amended, restated, supplemented or otherwise modified from time to time), by and among the Company and the other Borrowers party thereto, each of the other Loan Parties from time to time party thereto, each Lender from time to time party thereto and Bank of Montreal, as Administrative Agent, Swing Line Lender, and an L/C Issuer.

Equity Securities ” means, with respect to the Company, (i) shares of Company Stock, (ii) obligations, evidences of indebtedness or other securities or interests, in each case that are convertible or exchangeable into shares of Company Stock, (iii) warrants, options or other rights to purchase or otherwise acquire shares of Company Stock, (iv) any capital stock of the Company issued or issuable upon the exercise, conversion, or exchange of any of the securities referred to in clauses (i) through (iii) above, (v) any securities issued or issuable directly or indirectly with respect to the securities referred to in clauses (i) through (iv) above by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, reclassification, merger, consolidation or other reorganization. As to any particular securities constituting Company Stock, such securities will cease to be Company Stock when they have been (1) effectively registered under the 1933 Securities Act and disposed of in accordance with the registration statement or prospectus covering them, (2) distributed to the public through a broker, dealer or market maker pursuant to Rule 144 under the 1933 Securities Act (or any similar or equivalent provision then in force), or (3) been repurchased or otherwise acquired by the Company.

Fund Indemnitors ” has the meaning set forth in Section 3H .

Governing Documents ” with respect to the Company and any of its Subsidiaries, means, collectively, such Person’s certificate of incorporation, certificate of formation, bylaws, operating agreement or similar governing documents.

Governmental Entity ” means the United States of America or any other nation, any state or other political subdivision thereof, or any entity exercising executive, legislative, judicial, regulatory or administrative functions of government.

Indemnitee ” has the meaning set forth in Section 3H .

Joinder Agreement ” has the meaning set forth in the preface above.

Necessary Action ” means, with respect to a specified result, all actions, to the fullest extent permitted by applicable law, necessary to cause such result, including, without limitation, (i) voting or providing a written consent or proxy with respect to the Company Stock, (ii) causing the adoption of Stockholders’ resolutions and amendments to the Governing

 

10


Documents, (iii) executing agreements and instruments and (iv) making, or causing to be made, with governmental, administrative or regulatory authorities, all filings, registrations or similar actions that are required to achieve such result.

Non-TPG Shares ” means the shares of Company Stock other than the TPG Shares.

Permitted TPG Transfer ” means any Transfer of Company Stock by TPG or its Affiliates (i) to or among TPG and its Affiliates and/or its or their limited partners or (ii) pursuant to an in-kind distribution to their equityholders.

Permitted Transferee ” means (i) with respect to any Stockholder who is a natural person, such Stockholder’s “family members” as defined under Rule 701 promulgated under the 1933 Securities Act, as in effect as of the date hereof (“family members”); (ii) in the case of TPG or an Affiliate of TPG, a Permitted TPG Transferee; and (iii) in the case of J.A. Cosmetics Corp. (the initial Rollover Stockholder), the stockholders thereof and their family members provided in each case that (w) such Transfer is consummated in accordance with Section 2A(ii) , (x) the restrictions contained herein will continue to be applicable to the applicable Company Stock after any such Transfer, (y) the transferee(s) of such Company Stock is an “accredited investor” as defined under Rule 501 of Regulation D of the Securities Act (or any similar or equivalent provision then in force) and (z) neither the transferee(s) of such Company Stock nor any of its Affiliates is, or is reasonably expected to be, engaged in any business or other activities which competes with the business of the Company or any of its Subsidiaries.

Person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, association or other entity or a Governmental Entity.

Public Offering ” means any sale, in an underwritten public offering registered under the 1933 Securities Act, of the Company’s (or any successor’s) Equity Securities.

Public Sale ” means any sale of Company Stock or other securities to the public pursuant to an offering registered under the Securities Act or through a broker, dealer or market maker pursuant to the provisions of Rule 144 promulgated under the 1933 Securities Act.

Registration Rights Agreement ” means the Registration Rights Agreement, dated January 31, 2014, by and among the Company, the Stockholders and the other parties thereto, as amended from time to time.

Rollover Stockholders ” has the meaning set forth in the preface above.

Schedule of Additional Stockholders ” has the meaning set forth in the preface above.

Schedule of Rollover Stockholders ” has the meaning set forth in the preface above.

 

11


Section 16 Reporting Person ” has the meaning set forth in Section 3J .

Shares ” means the shares of common stock, par value $0.01, of the Company, and any other Equity Securities of the Company from time to time outstanding.

Stockholder ” has the meaning set forth in the preface above.

Subsidiary ” means, with respect to any Person, any corporation, limited liability company, partnership, association or business entity of which (i) if a corporation, a majority of the total voting power of units of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity (other than a corporation), a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity (other than a corporation) if such Person or Persons shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or control any managing director or general partner of such limited liability company, partnership, association or other business entity. For purposes hereof, references to a “ Subsidiary ” of any Person shall be given effect only at such times that such Person has one or more Subsidiaries, and, unless otherwise indicated, the term “ Subsidiary ” refers to a Subsidiary of the Company.

Terminated Stockholder ” has the meaning set forth in Section 3J .

TPG ” has the meaning set forth in the preface above.

TPG Affiliated Person ” means, each of TPG and all of its respective partners, principals, directors, officers, members, managers, managing directors, advisors, consultants and employees, TPG’s Affiliates, the TPG Directors, or any officer of the Company that is an Affiliate of TPG.

TPG Confidential Information ” has the meaning set forth in Section 6A(ii) .

TPG Directors ” has the meaning set forth in Section 3A .

TPG Shares ” means the Shares held by TPG as of any date. As to any particular securities constituting TPG Shares, such securities shall cease to be TPG Shares when they have been (i) effectively registered under the 1933 Securities Act and disposed of in accordance with the registration statement covering them, (ii) distributed to the public through a broker, dealer or market maker pursuant to Rule 144 under the 1933 Securities Act (or any similar provision then in force), or (iii) repurchased by the Company or any Subsidiary.

 

12


Transfer ” means any sale, transfer, assignment, pledge, mortgage, exchange, hypothecation, grant of a security interest or other direct or indirect disposition or encumbrance of an interest whether with or without consideration, whether voluntarily or involuntarily or by operation of law) or the acts thereof. The terms “ Transferee ,” “ Transferred ,” and other forms of the word “ Transfer ” shall have correlative meanings.

SECTION 8. MISCELLANEOUS

8A. Amendment and Waiver . This Agreement may be amended, modified or waived with the written consent of TPG; provided that if any such amendment, modification or waiver would, individually or in the aggregate, adversely affect in any material respect the rights, preferences or privileges of any holder of Non-TPG Shares (without regard to any effect on the individual circumstances of the holder of such Non-TPG Shares) disproportionately to the effect of such amendment, modification or waiver on the rights, preferences or privileges of the TPG Shares, such amendment, modification or waiver shall also require the written consent of the holders of a majority of the Non-TPG Shares. The Board may, without the consent of any other Stockholder, amend the Schedule of Additional Stockholders to reflect the issuance or Transfer to any Stockholder consistent with this Agreement.

8B. Freedom to Pursue Opportunities .   The Company and the Stockholders acknowledge and understand that TPG and its respective Affiliates, including the TPG Directors, from time to time review the business plans and related proprietary information of many enterprises, including enterprises that may have products or services that compete directly or indirectly with those of the Company, and may trade in the securities of such enterprises. Nothing in this Agreement shall preclude or in any way restrict TPG, any of its respective Affiliates, including the TPG Directors, from investing or participating in any particular enterprise, or trading in the securities thereof, whether or not such enterprise has products or services that compete with those of the Company, and the Company and its Stockholders hereby waive, in perpetuity, any and all claims that it now has or may have in the future, and agree not to initiate any litigation or any other cause of action (whether or not in a court of competent jurisdiction) in respect of any such waived claims, or otherwise on the basis of, or in connection with, the doctrine of corporate opportunity (or any similar doctrine).

8C. Severability .  Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or the effectiveness or validity of any provision in any other jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

8D. Entire Agreement . Except as otherwise expressly set forth herein, this document and the documents referenced herein and therein embody the complete agreement and understanding among the parties hereto with respect to the subject matter hereof and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.

 

13


8E. Successors and Assigns . Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be enforceable by the Company and its successors and assigns and the Stockholders from time to time party hereto and any subsequent holders of Company Stock and the respective successors and assigns of each of them, so long as they hold Company Stock.

8F. Counterparts . This Agreement may be executed in separate counterparts each of which shall be an original and all of which taken together shall constitute one and the same agreement.

8G. Remedies . The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that the Company and any Stockholder shall have the right to injunctive relief or specific performance, in addition to all of its rights and remedies at law or in equity, to enforce the provisions of this Agreement. Nothing contained in this Agreement shall be construed to confer upon any Person who is not a signatory hereto any rights or benefits, as a third party beneficiary or otherwise.

8H. Notices . Any notice provided for under this Agreement will be deemed to have been given hereunder (i) when delivered personally to the recipient, (ii) one (1) business day after being sent to the recipient by reputable overnight courier service (charges prepaid), (iii) upon machine-generated acknowledgment of receipt after transmittal by facsimile if so acknowledged to have been received before 5:00 p.m. on a business day at the location of receipt and otherwise on the next following business day, provided that such notice, demand or other communication is also deposited within 24 hours thereafter with a reputable overnight courier service (charges prepaid) for delivery to the same Person, (iv) upon transmittal by e-mail if transmitted before 5:00 p.m. (on a business day) in the time zone of the address of the recipient and otherwise on the next following business day, or (iv) five (5) days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, in each case to the addresses provided below, the addresses as indicated by the Company’s records or at such address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party. The Company’s address is:

e.l.f. Beauty, Inc.

570 10th Street

Oakland, California 94607

Attention: General Counsel

Facsimile: ###

Email:       ###

with copies (which shall not constitute notice) to:

Kirkland & Ellis LLP

333 South Hope Street, 29th Floor

Los Angeles, California 90071

Attention:  ###

Facsimile: ###

Email:       ###

 

14


8I. Governing Law . This Agreement, including all issues concerning the relative rights of the Company and the Stockholders with respect to the matters set forth herein, shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the State of Delaware.

8J. Descriptive Headings . The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.

8K. Understanding among the Stockholders . Except as otherwise provided herein, the determination of each Stockholder to purchase the Company Stock has been made by such Stockholder independent of any other Stockholder, or any of such other Stockholder’s Affiliates, and independent of any statements or opinions as to the advisability of such contribution or as to the properties, business, prospects or condition (financial or otherwise) of the Company which may have been made or given by any other Stockholder or by any agent, Affiliate or employee of any other Stockholder. In addition, it is acknowledged by each Stockholder that no Stockholder has acted as an agent of any other Stockholder in connection with making its investment hereunder and that no Stockholder shall be acting as an agent of any other Stockholder in connection with monitoring its investment hereunder. It is further acknowledged by the other Stockholders that TPG and its Affiliates have retained Kirkland & Ellis LLP to act as their counsel in connection with this Agreement and that Kirkland & Ellis LLP has not acted as counsel for any other party in connection herewith or therewith and that no other party has the status of a client of Kirkland & Ellis LLP for conflict of interest or other purposes as a result thereof.

* * * * *

 

15


IN WITNESS WHEREOF, the parties hereto have executed this Stockholders Agreement on the day and year first above written.

 

COMPANY:
E.L.F. BEAUTY, INC.

By:

 

 

Name:

 

Title:

 

 

[Signature Pages - Stockholders Agreement]


STOCKHOLDERS:
J.A. COSMETICS CORP.

By:

 

 

Name:

 

Title:

 

 

Alan Shamah

 

Joseph Shamah

 

[Signature Pages - Stockholders Agreement]


Amin Family Trusts
By:  

 

Name:   Tarang P. Amin
Title:   Attorney-in-Fact
By:  

 

Name:   Hirni T. Amin
Title:   Attorney-in-Fact

 

[Signature Pages - Stockholders Agreement]


TPG ELF HOLDINGS, L.P.
By:   TPG Growth II Advisors, Inc.
its general partner
By:  

 

Name:   Clive Bode
Title:   Vice President

 

[Signature Pages - Stockholders Agreement]


Milsten/Conner Trust dated October 17, 2008
By:  

 

Name:   Scott Milsten
Title:   Trustee

 

[Signature Pages - Stockholders Agreement]


 

Scott Milsten

 

Tarang Amin

 

John Bailey

 

Richard F. Baruch, Jr.

 

Erin C. Daley

 

Jonathan T. Fieldman


SCHEDULE OF ROLLOVER STOCKHOLDERS

 

Rollover Stockholder     

 

J.A. Cosmetics Corp.

  


SCHEDULE OF ADDITIONAL STOCKHOLDERS

 

Additional Stockholder     

 

Amin Family Trusts*

  

Milsten/Conner Trust dated October 17, 2008

  

Tarang Amin

  

Scott Milsten

  

John Bailey

  

Richard F. Baruch, Jr.

  

Erin C. Daley

  

Jonathan T. Fieldman

  

Joseph Shamah

  

Alan Shamah

  

 

* Includes all trusts that are holders of Shares, of which Tarang Amin or his family member is the trustee, trustor, grantor, donor, settlor or beneficiary, or that was otherwise established by Tarang Amin or his family member


EXHIBIT A

FORM OF JOINDER AGREEMENT

This Joinder Agreement is being delivered to e.l.f. Beauty, Inc., a Delaware corporation (the “ Company ”), pursuant to Section 2 of that certain Amended and Restated Stockholders Agreement, dated as of [            ], 2016 (as amended from time to time, the “ Stockholders Agreement ”), among the Company and the Stockholders (as defined therein). Capitalized terms used herein shall have the meanings assigned to such terms in the Stockholders Agreement.

The undersigned hereby executes and delivers to the Company this Joinder Agreement, pursuant to which the undersigned hereby becomes a party to the Stockholders Agreement and agrees to be bound by the provisions of the Stockholders Agreement with respect to the                  Shares held by the undersigned.

Any notice provided for in the Stockholders Agreement should be delivered to the undersigned at the address set forth below:

 

                                                   

                                                   

                                                   

Telephone:                                  

Facsimile:                                   

Dated:                             

 

 

[                 ]

 

[Stockholders Agreement - Joinder]

Exhibit 10.1

 

LOGO

STANDARD MULTI-TENANT OFFICE LEASE - GROSS

AIR COMMERCIAL REAL ESTATE ASSOCIATION

 

1.

Basic Provisions (“Basic Provisions”).

1.1         Parties: This Lease (“Lease”), dated for reference purposes only March 31, 2014                                                               ,

is made by and between 1007 Clay Street Properties LLC                                                                                                                              

                                                                                                                                                                                                                           (“Lessor”)

and J.A. Cosmetics US, Inc. a Delaware corporation                                                                                                                                                  

                                                                                                                                                                                                                         (“Lessee”),

(collectively the “Parties”, or individually a “Party”).

1.2(a )          Premises: That certain portion of the Project (as defined below), known as Suite Numbers(s) 300                                        ,

on the third    floor (s) , consisting of approximately 9,933                      rentable square feet and approximately 8,563                          

useable square feet (“Premises”). The Premises are located at: 570 10th Street                                                                                         ,

in the City of Oakland                                                                      , County of Alameda                                                                              ,

State of California                                           , with zip code 94607          . In addition to Lessee’s rights to use and occupy the Premises as hereinafter specified, Lessee shall have non-exclusive rights to the Common Areas (as defined in Paragraph 2.7 below) as hereinafter specified, but shall not have any rights to the roof, the exterior walls, the area above the dropped ceilings, or the utility raceways of the building containing the Premises (“Building”) or to any other buildings in the Project. The Premises, the Building, the Common Areas, the land upon which they are located, along with all other buildings and improvements thereon, are herein collectively referred to as the “Project.” The Project consists of

approximately 26,181                      rentable square feet. (See also Paragraph 2)

1.2(b)       Parking:                       unreserved and                      reserved vehicle parking spaces at a monthly cost of $                              per unreserved space and $                          per reserved space. (See Paragraph 2.6)

1.3            Term : five (5)                                                years and five (5)                                                               months (“ Original Term ”) commencing March 31, 2014                                                                                                                               (“ Commencement Date ”) and ending five (5) years and five (5) months later on August 31, 2019 (“ Expiration Date ”) . (See also Paragraph 3)

1.4           Early Possession: If the Premises are available Lessee may have non-exclusive possession of the Premises commencing fourteen (14) days prior to the Lease Commencement              (“ Early Possession Date ”). (See also Paragraphs 3.2 and 3.3)

1.5            Base Rent: $ 27,812.40              per month ( “Base Rent )”, payable on the 1st                              day of each month commencing September 1, 2014                                       . (See also Paragraph 4)

þ         If this box is checked, there are provisions in this Lease for the Base Rent to be adjusted. See Paragraph 2 in Addendum to Standard Multi-Tenant Office Lease-Gross

1.6            Lessee’s Share of Operating Expense Increase : sixteen                                   percent ( 16 %) (“ Lessee’s Share”). In the event that that size of the Premises and/or the Project are modified during the term of this Lease, Lessor shall recalculate Lessee’s Share to reflect such modification.

1.7           Base Rent and Other Monies Paid Upon Execution:

  (a)

        Base Rent: $ 27,812.40             for the period September 1, 2014 – September 30, 2014 .

  (b)

         Security Deposit: $ 32,242.19                                                                                           (“ Security Deposit ”). (See also Paragraph 5)

  (c)

        Parking : $ N/A                                     for the period N/A                                                                                                                   .

  (d)

        Other :  $ NA                                           for                                                                                                                                                 .

  (e)

         Total Due Upon Execution of this Lease : $ 60,054.59                                                                                         .

1.8            Agreed Use : General office administrative use.                                                                                                                                                                                                                                                                                                                                                                                                                                              

                                                                                                                                                        . (See also Paragraph 6)

1.9           Base Year; Insuring Party. The Base Year is 2014                     . Lessor is the “Insuring Party”. (See also Paragraphs 4.2 and 8)

1.10         Real Estate Brokers: (See also Paragraph 15 and 25)

(a) Representation: The following real estate brokers (the “Brokers”) and brokerage relationships exist in this transaction (check applicable boxes):

þ Colliers International                                                                                                                                     represents Lessor exclusively (“ Lessor’s Broker ”);

þ Cassidy Turley                                                                                                                                     represents Lessee exclusively (“ Lessee’s Broker ”); or

¨                                                                                                                                                                               represents both Lessor and Lessee (“ Dual Agency ”).

(b) Payment to Brokers: Upon execution and delivery of this Lease by both Parties, Lessor shall pay to the Brokers for the brokerage services rendered by the Brokers the fee agreed in a to in the attached separate written agreement or if no such agreement is attached, the sum of                          or                               % of the total Base Rent payable for the Original Term, the sum of                              or                                of the total Base Rent payable during any period of time that the Lessee occupies the Promises subsequent to the Original Term, and/or the sum of                               or                            % of the purchase price in the event that the Lessee or anyone affiliated with Lessee acquires from Lessor any rights to the Premises.

        1.11          Guarantor . The obligations of the Lessee under this Lease shall be guaranteed by                                                                                                                                                                                                                                                                                    (“Guarantor”). (See also Paragraph 37)

1.12          Business Hours for the Building: 7:00       a.m. to 6: 00       p.m., Mondays through Fridays (except Building Holidays) and              a.m. to              p.m. on Saturdays (except Building Holidays) . “Building Holidays” shall mean the dates of observation of New Year’s Day, President’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day, and N/A                          .

 

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Lessee shall have the right to use the Premises 24 hours a day, subject to the requirements of Paragraph 11.4.

1.13         Lessor Supplied Services. Notwithstanding the provisions of Paragraph 11.1, Lessor is NOT obligated to provide the following within the Premises:

þ   Janitorial services

þ   Electricity

þ   Other (specify): Gas and water                                                                                                                                                                                            

1.14         Attachments. Attached hereto are the following, all of which constitute a part of this Lease:

þ   an Addendum consisting of Paragraphs 52                          through 53                      ;

¨   a plot plan depicting the Premises;

þ   a current set of the Rules and Regulations;

þ   a Work Letter;

¨   a janitorial schedule;

þ   other (specify): Additional Addendum Addendum to Standard Multi–Tenant Office Lease – Gross” Paragraphs 1 – 19                                                                                                                                                                                                                                                                                                                                                   .

 

2.

Premises.

2.1         Letting. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Premises, for the term, at the rental, and upon all of the terms, covenants and conditions set forth in this Lease. While the approximate square footage of the Premises may have been used in the marketing of the Premises for purposes of comparison, the Base Rent stated herein is NOT tied to square footage and is not subject to adjustment should the actual size be determined to be different. Note: Lessee is advised to verify the actual size prior to executing this Lease.

2.2         Condition. Lessor shall deliver the Premises to Lessee in a clean condition on the Commencement Date or the Early Possession Date, whichever first occurs (“Start Date”), and warrants that the existing electrical, plumbing, fire sprinkler, lighting, heating, ventilating and air conditioning systems (“HVAC”), and all other items which the Lessor is obligated to construct pursuant to the Work Letter attached hereto, if any, other than those constructed by Lessee, shall be in good operating condition on said date, that the structural elements of the roof, bearing walls and foundation of the Unit shall be free of material defects, and that the Premises do not contain hazardous levels of any mold or fungi defined as toxic under applicable state or federal law. Lessor also warrants, that unless otherwise specified in writing, Lessor is unaware of (i) any recorded Notices of Default affecting the Premise; (ii) any delinquent amounts due under any loan secured by the Premises; and (iii) any bankruptcy proceeding affecting the Premises.

2.3         Compliance. Lessor warrants that to the best of its knowledge the improvements on the Premises and the Common Areas comply with the building codes applicable laws, covenants or restrictions of record, regulations, and ordinances (“Applicable Requirements”) that were in effect at the time that each improvement, or portion thereof, was constructed. Said warranty does not apply to the use to which Lessee will put the Premises, modifications which may be required by the Americans with Disabilities Act or any similar laws as a result of Lessee’s use (see Paragraph 49), or to any Alterations or Utility Installations (as defined in Paragraph 7.3(a)) made or to be made by Lessee. NOTE: Lessee is responsible for determining whether or not the zoning and other Applicable Requirements are appropriate for Lessee’s intended use, and acknowledges that past uses of the Premises may no longer be allowed. If the Premises do not comply with said warranty, Lessor shall, except as otherwise provided, promptly after receipt of written notice from Lessee setting forth with specificity the nature and extent of such non-compliance, rectify the same. If the Applicable Requirements are hereafter changed so as to require during the term of this Lease the construction of an addition to or an alteration of the Premises, the remediation of any Hazardous Substance, or the reinforcement or other physical modification of the Premises (“Capital Expenditure”), Lessor and Lessee shall allocate the cost of such work as follows:

(a) Subject to Paragraph 2.3(c) below, if such Capital Expenditures are required as a result of the specific and unique use of the Premises by Lessee as compared with uses by tenants in general, Lessee shall be fully responsible for the cost thereof, provided, however that if such Capital Expenditure is required during the last 2 years of this Lease and the cost thereof exceeds 6 months’ Base Rent, Lessee may instead terminate this Lease unless Lessor notifies Lessee, in writing, within 10 days after receipt of Lessee’s termination notice that Lessor has elected to pay the difference between the actual cost thereof and the amount equal to 6 months’ Base Rent. If Lessee elects termination, Lessee shall immediately cease the use of the Premises which requires such Capital Expenditure and deliver to Lessor written notice specifying a termination date at least 90 days thereafter. Such termination date shall, however, in no event be earlier than the last day that Lessee could legally utilize the Premises without commencing such Capital Expenditure.

(b) If such Capital Expenditure is not the result of the specific and unique use of the Premises by Lessee (such as, governmentally mandated seismic modifications), then Lessor shall pay for such Capital Expenditure and Lessee shall only be obligated to pay, each month during the remainder of the term of this Lease or any extension thereof, on the date that on which the Base Rent is due, an amount equal to 1/144th of the portion of such costs reasonably attributable to the Premises. Lessee shall pay Interest on the balance but may prepay its obligation at any time. If, however, such Capital Expenditure is required during the last 2 years of this Lease or if Lessor reasonably determines that it is not economically feasible to pay its share thereof, Lessor shall have the option to terminate this Lease upon 90 days prior written notice to Lessee unless Lessee notifies Lessor, in writing, within 10 days after receipt of Lessor’s termination notice that Lessee will pay for such Capital Expenditure. If Lessor does not elect to terminate, and fails to tender its share of any such Capital Expenditure, Lessee may advance such funds and deduct same, with Interest, from Rent until Lessor’s share of such costs have been fully paid. If Lessee is unable to finance Lessor’s share, or if the balance of the Rent due and payable for the remainder of this Lease is not sufficient to fully reimburse Lessee on an offset basis, Lessee shall have the right to terminate this Lease upon 30 days written notice to Lessor.

(c) Notwithstanding the above, the provisions concerning Capital Expenditures are intended to apply only to nonvoluntary, unexpected, and new Applicable Requirements. If the Capital Expenditures are instead triggered by Lessee as a result of an actual or proposed change in use, change in intensity of use, or modification to the Premises then, and in that event, Lessee shall either: (i) immediately cease such changed use or intensity of use and/or take such other steps as may be necessary to eliminate the requirement for such Capital Expenditure, or (ii) complete such Capital Expenditure at its own expense. Lessee shall not have any right to terminate this Lease.

2.4         Acknowledgements. Lessee acknowledges that: (a) it has been given an opportunity to inspect and measure the Premises, (b) Lessee has been advised by Lessor and/or Brokers to satisfy itself with respect to the size and condition of the Premises (including but not limited to the electrical, HVAC and fire sprinkler systems, security, environmental aspects, and compliance with Applicable Requirements), and their suitability for Lessee’s intended use, (c) Lessee has made such investigation as it deems necessary with reference to such matters and assumes all responsibility therefor as the same relate to its occupancy of the Premises, (d) it is not relying on any representation as to the size of the Premises made by Brokers or Lessor, (e) the square footage of the Premises was not material to Lessee’s decision to lease the Premises and pay the Rent stated herein, and (f) neither Lessor, Lessor’s agents, nor Brokers have made any oral or written representations or warranties with respect to said matters other than as set forth in this Lease. In addition, Lessor acknowledges that: (i) Brokers have made no representations, promises or warranties concerning Lessee’s ability to honor the Lease or suitability to occupy the Premises, and (ii) it is Lessor’s sole responsibility to investigate the financial capability and/or suitability of all proposed tenants.

2.5         Lessee as Prior Owner/Occupant. The warranties made by Lessor in Paragraph 2 shall be of no force or effect if immediately prior to the Start Date, Lessee was the owner or occupant of the Premises. In such event, Lessee shall be responsible for any necessary corrective work.

2.6         Vehicle Parking. So long as Lessee is not in default, and subject to the Rules and Regulations attached hereto, and as established by Lessor from time to time, Lessee shall be entitled to rent and use the number of parking spaces specified in Paragraph 1.2(b) at the rental rate applicable from time to time for monthly parking as sot by Lessor and/or its licensee.

(a) If Lessee commits, permits or allows any of the prohibited activities described in the Lease or the rules then in effect, then Lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove or tow away the vehicle involved and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lessor.

(b) The monthly rent per parking space specified in Paragraph 1 .2 (b) is subject to change upon 30 days prior written notice to Lessee. The rent for the parking is payable one month in advance prior to the first day of each calendar month.

2.7         Common Areas - Definition. The term “Common Areas” is defined as all areas and facilities outside the Premises and within the exterior boundary line of the Project and interior utility raceways and installations within the Premises that are provided and designated by the Lessor from time to time for the general nonexclusive use of Lessor, Lessee and other tenants of the Project and their respective employees, suppliers, shippers, customers, contractors and invitees, including, but not limited to, common entrances, lobbies, corridors, stairwells, public restrooms, elevators, parking areas, loading and unloading areas, trash areas, roadways, walkways, driveways and landscaped areas.

 

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2.8         Common Areas - Lessee’s Rights . Lessor grants to Lessee, for the benefit of Lessee and its employees, suppliers, shippers, contractors, customers and invitees, during the term of this Lease, the nonexclusive right to use, in common with others entitled to such use, the Common Areas as they exist from time to time, subject to any rights, powers, and privileges reserved by Lessor under the terms hereof or under the terms of any rules and regulations or restrictions governing the use of the Project. Under no circumstances shall the right herein granted to use the Common Areas be deemed to include the right to store any property, temporarily or permanently, in the Common Areas. Any such storage shall be permitted only by the prior written consent of Lessor or Lessor’s designated agent, which consent may be revoked at any time. In the event that any unauthorized storage shall occur then Lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lessor.

2.9         Common Areas - Rules and Regulations . Lessor or such other person(s) as Lessor may appoint shall have the exclusive control and management of the Common Areas and shall have the right, from time to time, to adopt, modify, amend and enforce reasonable rules and regulations (“ Rules and Regulations ”) for the management, safety, care, and cleanliness of the common area, including grounds, the parking and unloading of vehicles and the preservation of good order, as well as for the convenience of other occupants or tenants of the Building and the Project and their invitees. The Lessee agrees to abide by and conform to all such Rules and Regulations, and shall use its best efforts to cause its employees, suppliers, shippers, customers, contractors and invitees to so abide and conform. Lessor shall not be responsible to Lessee for the noncompliance with said Rules and Regulations by other tenants of the Project.

2.10       Common Areas - Changes . Lessor shall have the right, in Lessor’s sole discretion, from time to time:

(a)        To make changes to the Common Areas, including, without limitation, changes in the location, size, shape and number of the lobbies, windows, stairways, air shafts, elevators, escalators, restrooms, driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas, walkways and utility raceways;

(b)        To close temporarily any of the Common Areas for maintenance purposes so long as reasonable access to the Premises remains available;

(c)        To designate other land outside the boundaries of the Project to be a part of the Common Areas;

(d)        To add additional buildings and improvements to the Common Areas;

(e)        To use the Common Areas while engaged in making additional improvements, repairs or alterations to the Project, or any portion thereof; and

(f)        To do and perform such other acts and make such other changes in, to or with respect to the Common Areas and Project as Lessor may, in the exercise of sound business judgment, deem to be appropriate.

3.

Term.

3.1         Term . The Commencement Date, Expiration Date and Original Term of this Lease are as specified in Paragraph 1.3.

3.2         Early Possession . Any provision herein granting Lessee Early Possession of the Premises is subject to and conditioned upon the Premises being available for such possession prior to the Commencement Date. Any grant of Early Possession only conveys a non-exclusive right to occupy the Premises. If Lessee totally or partially occupies the Premises prior to the Commencement Date, the obligation to pay Base Rent shall be abated for the period of such Early Possession. All other terms of this Lease (including but not limited to the obligations to pay Lessee’s Share of the Operating Expense Increase) shall be in effect during such period. Any such Early Possession shall not affect the Expiration Date.

3.3         Delay In Possession . Lessor agrees to use its best commercially reasonable efforts to deliver possession of the Promises to Lessee by the Commencement Date. If, despite said efforts, Lessor is unable to deliver possession by such date, Lessor shall not be subject to any liability therefor, nor shall such failure affect the validity of this Lease or change the Expiration Date. Lessee shall not, however, be obligated to pay Rent or perform its other obligations until Lessor delivers possession of the Premises and any period of rent abatement that Lessee would otherwise have enjoyed shall run from the date of delivery of possession and continue for a period equal to what Lessee would otherwise have enjoyed under the terms hereof, but minus any days of delay caused by the acts or omissions of Lessee. If possession is not delivered within 60 days after the Commencement Date, as the same may be extended under the terms of any Work Letter executed by Parties, Lessee may, at its option, by notice in writing within 10 days after the end of such 60 day period, cancel this Lease, in which event the Parties shall be discharged from all obligations hereunder. If such written notice is not received by Lessor within said 10 day period, Lessee’s right to cancel shall terminate. If possession of the Premises is not delivered within 120 days after the Commencement Date, this Lease shall terminate unless other agreements are reached between Lessor and Lessee, in writing.

3.4         Lessee Compliance . Lessor shall not be required to deliver possession of the Premises to Lessee until Lessee complies with its obligation to provide evidence of insurance (Paragraph 8.5). Pending delivery of such evidence. Lessee shall be required to perform all of its obligations under this Lease from and after the Start Date, including the payment of Rent, notwithstanding Lessor’s election to withhold possession pending receipt of such evidence of insurance. Further, if Lessee is required to perform any other conditions prior to or concurrent with the Start Date, the Start Date shall occur but Lessor may elect to withhold possession until such conditions are satisfied.

4.

Rent.

4.1.         Rent Defined . All monetary obligations of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are deemed to be rent (“ Rent ”).

4.2         Operating Expense Increase . Lessee shall pay to Lessor during the term hereof, in addition to the Base Rent, Lessee’s Share of the amount by which all Operating Expenses for each Comparison Year exceeds the amount of all Operating Expenses for the Base Year, such excess being hereinafter referred to as the “ Operating Expense Increase ”, in accordance with the following provisions:

(a)        “ Base Year ” is as specified in Paragraph 1.9.

(b)        “ Comparison Year ” is defined as each calendar year during the term of this Lease subsequent to the Base Year; provided, however, Lessee shall have no obligation to pay a share of the Operating Expense Increase applicable to the first 12 months of the Lease Term (other than such as are mandated by a governmental authority, as to which government mandated expenses Lessee shall pay Lessee’s Share, notwithstanding they occur during the first twelve (12) months). Lessee’s Share of the Operating Expense Increase for the first and last Comparison Years of the Lease Term shall be prorated according to that portion of such Comparison Year as to which Lessee is responsible for a share of such increase.

(c)        The following costs relating to the ownership and operation of the Project, calculated as if the Project was at least 95% occupied, are defined as “ Operating Expenses ”:

(i)        Costs relating to the operation, repair, and maintenance in neat, clean, safe, good order and condition, but not the replacement (see subparagraph (g)), of the following:

(aa)        The Common Areas, including their surfaces, coverings, decorative items, carpets, drapes and window coverings, and including parking areas, loading and unloading areas, trash areas, roadways, sidewalks, walkways, stairways, parkways, driveways, landscaped areas, striping, bumpers, irrigation systems, Common Area lighting facilities, building exteriors and roofs, fences and gates;

(bb)        All heating, air conditioning, plumbing, electrical systems, life safety equipment, communication systems and other equipment used in common by, or for the benefit of, tenants or occupants of the Project, including elevators and escalators, tenant directories, fire detection systems including sprinkler system maintenance and repair.

(cc)        All other areas and improvements that are within the exterior boundaries of the Project but outside of the Premises and/or any other space occupied by a tenant.

(ii)        The cost of trash disposal, janitorial and security services, pest control services, and the costs of any environmental inspections;

(iii)        The cost of any other service to be provided by Lessor that is elsewhere in this Lease stated to be an “Operating Expense”;

(iv)        The cost of the premiums for the insurance policies maintained by Lessor pursuant to paragraph 8 and any deductible portion of an insured loss concerning the Building or the Common Areas;

(v)         The amount of the Real Property Taxes payable by Lessor pursuant to paragraph 10;

(vi)        The cost of water, sewer, gas, electricity, and other publicly mandated services not separately metered;

(vii)       Labor, salaries, and applicable fringe benefits and costs, materials, supplies and tools, used in maintaining and/or cleaning the Project and accounting and management fees attributable to the operation of the Project;

(viii)      The cost of any capital improvement to the Building or the Project not covered under the provisions of Paragraph 2.3 provided; however, that Lessor shall allocate the cost of any such capital improvement over a 12 year period and Lessee shall not be required to pay more than Lessee’s Share of 1/144th of the cost of such Capital Expenditure in any given month;

(ix)        The cost to replace equipment or improvements that have a useful life for accounting purposes of 5 years or less.

(x)         Reserves set aside for maintenance, repair and/or replacement of Common Area improvements and equipment.

 

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(d)        Any item of Operating Expense that is specifically attributable to the Premises, the Building or to any other building in the Project or to the operation, repair and maintenance thereof, shall be allocated entirely to such Premises, Building, or other building. However, any such item that is not specifically attributable to the Building or to any other building or to the operation, repair and maintenance thereof, shall be equitably allocated by Lessor to all buildings in the Project.

(e)        The inclusion of the improvements, facilities and services set forth in Subparagraph 4.2(c) shall not be deemed to impose an obligation upon Lessor to either have said improvements or facilities or to provide those services unless the Project already has the same, Lessor already provides the services, or Lessor has agreed elsewhere in this Lease to provide the same or some of them.

(f)         Lessee’s Share of Operating Expense Increase is payable monthly on the same day as the Base Rent is due hereunder. The amount of such payments shall be based on Lessor’s estimate of the Operating Expense Expenses. Within 60 days after written request (but not more than once each year) Lessor shall deliver to Lessee a reasonably detailed statement showing Lessee’s Share of the actual Common Area Operating Expenses for the preceding year. If Lessee’s payments during such Year exceed Lessee’s Share, Lessee shall credit the amount of such over-payment against Lessee’s future payments. If Lessee’s payments during such Year were less than Lessee’s Share, Lessee shall pay to Lessor the amount of the deficiency within 10 days after delivery by Lessor to Lessee of said statement. Lessor and Lessee shall forthwith adjust between them by cash payment any balance determined to exist with respect to that portion of the last Comparison Year for which Lessee is responsible as to Operating Expense Increases, notwithstanding that the Lease term may have terminated before the end of such Comparison Year.

(g)        Operating Expenses shall not include the costs of replacement for equipment or capital components such as the roof, foundations, exterior walls or a Common Area capital improvement, such as the parking lot paving, elevators, fences that have a useful life for accounting purposes of 5 years or more.

(h)        Operating Expenses shall not include any expenses paid by any tenant directly to third parties, or as to which Lessor is otherwise reimbursed by any third party, other tenant, or by insurance proceeds.

4.3           Payment. Lessee shall cause payment of Rent to be received by Lessor in lawful money of the United States on or before the day on which it is due, without offset or deduction (except as specifically permitted in this Lease). All monetary amounts shall be rounded to the nearest whole dollar. In the event that any invoice prepared by Lessor is inaccurate such inaccuracy shall not constitute a waiver and Lessee shall be obligated to pay the amount set forth in this Lease. Rent for any period during the term hereof which is for less than one full calendar month shall be prorated based upon the actual number of days of said month. Payment of Rent shall be made to Lessor at its address stated herein or to such other persons or place as Lessor may from time to time designate in writing. Acceptance of a payment which is less than the amount then due shall not be a waiver of Lessor’s rights to the balance of such Rent, regardless of Lessor’s endorsement of any check so stating. In the event that any check, draft, or other instrument of payment given by Lessee to Lessor is dishonored for any reason, Lessee agrees to pay to Lessor the sum of $25 in addition to any Late Charge and Lessor, at its option, may require all future Rent be paid by cashier’s check. Payments will be applied first to accrued late charges and attorney’s fees, second to accrued interest, then to Base Rent and Common Area Operating Expenses, and any remaining amount to any other outstanding charges or costs.

5.           Security Deposit. Lessee shall deposit with Lessor upon execution hereof the Security Deposit as security for Lessee’s faithful performance of its obligations under this Lease. If Lessee fails to pay Rent, or otherwise Defaults under this Lease, Lessor may use, apply or retain all or any portion of said Security Deposit for the payment of any amount already due Lessor, for Rents which will be due in the future, and/ or to reimburse or compensate Lessor for any liability, expense, loss or damage which Lessor may suffer or incur by reason thereof. If Lessor uses or applies all or any portion of the Security Deposit, Lessee shall within 10 days after written request therefor deposit monies with Lessor sufficient to restore said Security Deposit to the full amount required by this Lease. If the Base Rent increases during the term of this Lease, Lessee shall, upon written request from Lessor, deposit additional monies with Lessor so that the total amount of the Security Deposit shall at all times bear the same proportion to the increased Base Rent as the initial Security Deposit bore to the initial Base Rent. Should the Agreed Use be amended to accommodate a material change in the business of Lessee or to accommodate a sublessee or assignee, Lessor shall have the right to increase the Security Deposit to the extent necessary, in Lessor’s reasonable judgment, to account for any increased wear and tear that the Premises may suffer as a result thereof. If a change in control of Lessee occurs during this Lease and following such change the financial condition of Lessee is, in Lessor’s reasonable judgment, significantly reduced, Lessee shall deposit such additional monies with Lessor as shall be sufficient to cause the Security Deposit to be at a commercially reasonable level based on such change in financial condition. Lessor shall not be required to keep the Security Deposit separate from its general accounts. Within 90 days after the expiration or termination of this Lease, Lessor shall return that portion of the Security Deposit not used or applied by Lessor. No part of the Security Deposit shall be considered to be held in trust, to bear interest or to be prepayment for any monies to be paid by Lessee under this Lease.

6.           Use.

6.1           Use. Lessee shall use and occupy the Premises only for the Agreed Use, or any other legal use which is reasonably comparable thereto, and for no other purpose. Lessee shall not use or permit the use of the Premises in a manner that is unlawful, creates damage, waste or a nuisance, or that disturbs occupants of or causes damage to neighboring premises or properties. Other than guide, signal and seeing eye dogs, Lessee shall not keep or allow in the Premises any pets, animals, birds, fish, or reptiles. Lessor shall not unreasonably withhold or delay its consent to any written request for a modification of the Agreed Use, so long as the same will not impair the structural integrity of the improvements of the Building, will not adversely affect the mechanical, electrical, HVAC, and other systems of the Building, and/or will not affect the exterior appearance of the Building. If Lessor elects to withhold consent, Lessor shall within 7 days after such request give written notification of same, which notice shall include an explanation of Lessor’s objections to the change in the Agreed Use.

6.2           Hazardous Substances.

(a) Reportable Uses Require Consent. The term “Hazardous Substance” as used in this Lease shall mean any product, substance, or waste whose presence, use, manufacture, disposal, transportation, or release, either by itself or in combination with other materials expected to be on the Premises, is either: (i) potentially injurious to the public health, safety or welfare, the environment or the Premises, (ii) regulated or monitored by any governmental authority, or (iii) a basis for potential liability of Lessor to any governmental agency or third party under any applicable statute or common law theory. Hazardous Substances shall include, but not be limited to, hydrocarbons, petroleum, gasoline, and/or crude oil or any products, byproducts or fractions thereof. Lessee shall not engage in any activity in or on the Premises which constitutes a Reportable Use of Hazardous Substances without the express prior written consent of Lessor and timely compliance (at Lessee’s expense) with all Applicable Requirements. “Reportable Use” shall mean (i) the installation or use of any above or below ground storage tank, (ii) the generation, possession, storage, use, transportation, or disposal of a Hazardous Substance that requires a permit from, or with respect to which a report, notice, registration or business plan is required to be filed with, any governmental authority, and/or (iii) the presence at the Premises of a Hazardous Substance with respect to which any Applicable Requirements requires that a notice be given to persons entering or occupying the Premises or neighboring properties. Notwithstanding the foregoing, Lessee may use any ordinary and customary materials reasonably required to be used in the normal course of the Agreed Use such as ordinary office supplies (copier toner, liquid paper, glue, etc.) and common household cleaning materials, so long as such use is in compliance with all Applicable Requirements, is not a Reportable Use, and does not expose the Premises or neighboring property to any meaningful risk of contamination or damage or expose Lessor to any liability therefor. In addition, Lessor may condition its consent to any Reportable Use upon receiving such additional assurances as Lessor reasonably deems necessary to protect itself, the public, the Premises and/or the environment against damage, contamination, injury and/or liability, including, but not limited to, the installation (and removal on or before Lease expiration or termination) of protective modifications (such as concrete encasements) and/or increasing the Security Deposit.

(b) Duty to Inform Lessor. If Lessee knows, or has reasonable cause to believe, that a Hazardous Substance has come to be located in, on, under or about the Premises, other than as previously consented to by Lessor, Lessee shall immediately give written notice of such fact to Lessor, and provide Lessor with a copy of any report, notice, claim or other documentation which it has concerning the presence of such Hazardous Substance.

(c) Lessee Remediation. Lessee shall not cause or permit any Hazardous Substance to be spilled or released in, on, under, or about the Premises (including through the plumbing or sanitary sewer system) and shall promptly, at Lessee’s expense, comply with all Applicable Requirements and take all investigatory and/or remedial action reasonably recommended, whether or not formally ordered or required, for the cleanup of any contamination of, and for the maintenance, security and/or monitoring of the Premises or neighboring properties, that was caused or materially contributed to by Lessee, or pertaining to or involving any Hazardous Substance brought onto the Premises during the term of this Lease, by or for Lessee, or any third party.

(d) Lessee Indemnification. Lessee shall indemnify, defend and hold Lessor, its agents, employees, lenders and ground lessor, if any, harmless from and against any and all loss of rents and/or damages, liabilities, judgments, claims, expenses, penalties, and attorneys’ and consultants’ fees arising out of or involving any Hazardous Substance brought onto the Premises by or for Lessee, or any third party (provided, however, that Lessee shall have no liability under this Lease with respect to underground migration of any Hazardous Substance under the Premises from areas outside of the Project not caused or contributed to by Lessee). Lessee’s obligations shall include, but not be limited to, the effects of any contamination or injury to person, property or the environment created or suffered by Lessee, and the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or termination of this Lease. No termination, cancellation or release agreement entered into by Lessor and Lessee shall release Lessee from its obligations under this Lease with respect to Hazardous Substances, unless specifically so agreed by Lessor in writing at the time of such agreement.

 

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(e) Lessor Indemnification. Except as otherwise provided in paragraph 8.7, Lessor and its successors and assigns shall indemnify, defend, reimburse and hold Lessee, its employees and lenders, harmless from and against any and all environmental damages, including the cost of remediation, which result from Hazardous Substances which existed on the Premises prior to Lessee’s occupancy or which are caused by the gross negligence or willful misconduct of Lessor, its agents or employees. Lessor’s obligations, as and when required by the Applicable Requirements, shall include, but not be limited to, the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or termination of this Lease.

(f) Investigations and Remediations. Lessor shall retain the responsibility and pay for any investigations or remediation measures required by governmental entities having jurisdiction with respect to the existence of Hazardous Substances on the Premises prior to Lessee’s occupancy, unless such remediation measure is required as a result of Lessee’s use (including “Alterations”, as defined in paragraph 7.3(a) below) of the Premises, in which event Lessee shall be responsible for such payment. Lessee shall cooperate fully in any such activities at the request of Lessor, including allowing Lessor and Lessor’s agents to have reasonable access to the Premises at reasonable times in order to carry out Lessor’s investigative and remedial responsibilities.

(g) Lessor Termination Option. If a Hazardous Substance Condition (see Paragraph 9.1(e)) occurs during the term of this Lease, unless Lessee is legally responsible therefor (in which case Lessee shall make the investigation and remediation thereof required by the Applicable Requirements and this Lease shall continue in full force and effect, but subject to Lessor’s rights under Paragraph 6.2(d) and Paragraph 13), Lessor may, at Lessor’s option, either (i) investigate and remediate such Hazardous Substance Condition, if required, as soon as reasonably possible at Lessor’s expense, in which event this Lease shall continue in full force and effect, or (ii) if the estimated cost to remediate such condition exceeds 12 times the then monthly Base Rent or $100,000, whichever is greater, give written notice to Lessee, within 30 days after receipt by Lessor of knowledge of the occurrence of such Hazardous Substance Condition, of Lessor’s desire to terminate this Lease as of the date 60 days following the date of such notice. In the event Lessor elects to give a termination notice, Lessee may, within 10 days thereafter, give written notice to Lessor of Lessee’s commitment to pay the amount by which the cost of the remediation of such Hazardous Substance Condition exceeds an amount equal to 12 times the then monthly Base Rent or $100,000, whichever is greater. Lessee shall provide Lessor with said funds or satisfactory assurance thereof within 30 days following such commitment. In such event, this Lease shall continue in full force and effect, and Lessor shall proceed to make such remediation as soon as reasonably possible after the required funds are available. If Lessee does not give such notice and provide the required funds or assurance thereof within the time provided, this Lease shall terminate as of the date specified in Lessor’s notice of termination.

6.3           Lessee’s Compliance with Applicable Requirements. Except as otherwise provided in this Lease, Lessee shall, at Lessee’s sole expense, fully, diligently and in a timely manner, materially comply with all Applicable Requirements, the requirements of any applicable fire insurance underwriter or rating bureau, and the recommendations of Lessor’s engineers and/or consultants which relate in any manner to the Premises, without regard to whether said requirements are now in effect or become effective after the Start Date. Lessee shall, within 10 days after receipt of Lessor’s written request, provide Lessor with copies of all permits and other documents, and other information evidencing Lessee’s compliance with any Applicable Requirements specified by Lessor, and shall immediately upon receipt, notify Lessor in writing (with copies of any documents involved) of any threatened or actual claim, notice, citation, warning, complaint or report pertaining to or involving the failure of Lessee or the Premises to comply with any Applicable Requirements. Likewise, Lessee shall immediately give written notice to Lessor of: (i) any water damage to the Premises and any suspected seepage, pooling, dampness or other condition conducive to the production of mold; or (ii) any mustiness or other odors that might indicate the presence of mold in the Premises.

6.4           Inspection; Compliance. Lessor and Lessor’s “Lender” (as defined in Paragraph 30) and consultants shall have the right to enter into Premises at any time, in the case of an emergency, and otherwise at reasonable times, after reasonable notice, for the purpose of inspecting the condition of the Premises and for verifying compliance by Lessee with this Lease. The cost of any such inspections shall be paid by Lessor, unless a violation of Applicable Requirements, or a Hazardous Substance Condition (see paragraph 9.1e) is found to exist or be imminent, or the inspection is requested or ordered by a governmental authority as a result of Lessee’s use or occupancy of the Premises. In such case, Lessee shall upon request reimburse Lessor for the cost of such inspection, so long as such inspection is reasonably related to the violation or contamination. In addition, Lessee shall provide copies of all relevant material safety data sheets (MSDS) to Lessor within 10 days of the receipt of written request therefor.

7.           Maintenance; Repairs; Utility Installations; Trade Fixtures and Alterations.

7.1           Lessee’s Obligations. Notwithstanding Lessor’s obligation to keep the Premises in good condition and repair, Lessee shall be responsible for payment of the cost thereof to Lessor as additional rent for that portion of the cost of any maintenance and repair of the Premises, or any equipment (wherever located) that serves only Lessee or the Premises, to the extent such cost is attributable to abuse or misuse. In addition, Lessee rather than the Lessor shall be responsible for the cost of painting, repairing or replacing wall coverings, and to repair or replace any similar improvements within the Premises. Lessor may, at its option, upon reasonable notice, elect to have Lessee perform any particular such maintenance or repairs the cost of which is otherwise Lessee’s responsibility hereunder.”

7.2           Lessor’s Obligations. Subject to the provisions of Paragraphs 2.2 (Condition), 2.3 (Compliance), 4.2 (Operating Expenses), 6 (Use), 7.1 (Lessee’s Obligations), 9 (Damage or Destruction) and 14 (Condemnation), Lessor, subject to reimbursement pursuant to Paragraph 4.2, shall keep in good order, condition and repair the foundations, exterior walls, structural condition of interior bearing walls, exterior roof, fire sprinkler system, fire alarm and/or smoke detection systems, fire hydrants, and the Common Areas. Lessee expressly waives the benefit of any statute now or hereafter in effect to the extent it is inconsistent with the terms of this Lease.

7.3         Utility Installations; Trade Fixtures; Alterations.

(a) Definitions. The term “Utility Installations” refers to all floor and window coverings, air lines, vacuum lines, power panels, electrical distribution, security and fire protection systems, communication cabling, lighting fixtures, HVAC equipment, and plumbing in or on the Premises. The term “Trade Fixtures” shall mean Lessee’s machinery and equipment that can be removed without doing material damage to the Premises. The term “ Alterations” shall mean any modification of the improvements, other than Utility Installations or Trade Fixtures, whether by addition or deletion. “Lessee Owned Alterations and/or Utility Installations” are defined as Alterations and/or Utility Installations made by Lessee that are not yet owned by Lessor pursuant to Paragraph 7.4(a).

(b) Consent. Lessee shall not make any Alterations or Utility Installations to the Premises without Lessor’s prior written consent. Lessee may, however, make non-structural Alterations or Utility Installations to the interior of the Premises (excluding the roof) without such consent but upon notice to Lessor, as long as they are not visible from the outside, do not involve puncturing, relocating or removing the roof, ceilings, floors or any existing walls, will not affect the electrical, plumbing, HVAC, and/or life safety systems, and the cumulative cost thereof during this Lease as extended does not exceed $2000. Notwithstanding the foregoing, Lessee shall not make or permit any roof penetrations and/or install anything on the roof without the prior written approval of Lessor. Lessor may, as a precondition to granting such approval, require Lessee to utilize a contractor chosen and/or approved by Lessor. Any Alterations or Utility Installations that Lessee shall desire to make and which require the consent of the Lessor shall be presented to Lessor in written form with detailed plans. Consent shall be deemed conditioned upon Lessee’s: (i) acquiring all applicable governmental permits, (ii) furnishing Lessor with copies of both the permits and the plans and specifications prior to commencement of the work, and (iii) compliance with all conditions of said permits and other Applicable Requirements in a prompt and expeditious manner. Any Alterations or Utility Installations shall be performed in a workmanlike manner with good and sufficient materials. Lessee shall promptly upon completion furnish Lessor with asbuilt plans and specifications. For work which costs an amount in excess of one month’s Base Rent, Lessor may condition its consent upon Lessee providing a lien and completion bond in an amount equal to 150% of the estimated cost of such Alteration or Utility Installation and/or upon Lessee’s posting an additional Security Deposit with Lessor.

(c) Liens; Bonds. Lessee shall pay, when due, all claims for labor or materials furnished or alleged to have been furnished to or for Lessee at or for use on the Premises , which claims are or may be secured by any mechanic’s or materialmen’s lion against the Premises or any interest therein . Lessee shall give Lessor not less than 10 days notice prior to the commencement of any work in, on or about the Premises, and Lessor shall have the right to post notices of non-responsibility. If Lessee shall contest the validity of any such lien, claim or demand, then Lessee shall, at its sole expense defend and protect itself, Lessor and the Premises against the same and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof. If Lessor shall require, Lessee shall furnish a surety bond in an amount equal to 150% of the amount of such contested lien, claim or demand, indemnifying Lessor against liability for the same. If Lessor elects to participate in any such action, Lessee shall pay Lessor’s attorneys’ fees and costs.

7.4         Ownership; Removal; Surrender; and Restoration.

(a) Ownership. Subject to Lessor’s right to require removal or elect ownership as hereinafter provided, all Alterations and Utility Installations made by Lessee shall be the property of Lessee, but considered a part of the Premises. Lessor may, at any time, elect in writing to be the owner of all or any specified part of the Lessee Owned Alterations and Utility Installations. Unless otherwise instructed per paragraph 7.4(b) hereof, all Lessee Owned Alterations and Utility Installations shall, at the expiration or termination of this Lease, become the property of Lessor and be surrendered by Lessee with the Premises.

(b) Removal. By delivery to Lessee of written notice from Lessor not earlier than 90 and not later than 30 days prior to the end of the term of this Lease, Lessor may require that any or all Lessee Owned Alterations or Utility Installations be removed by the expiration or termination of this Lease. Lessor may require the removal at any time of all or any part of any Lessee Owned Alterations or Utility Installations made without the required consent.

 

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(c) Surrender; Restoration. Lessee shall surrender the Premises by the Expiration Date or any earlier termination date, with all of the improvements, parts and surfaces thereof clean and free of debris, and in good operating order, condition and state of repair, ordinary wear and tear excepted. “Ordinary wear and tear” shall not include any damage or deterioration that would have been prevented by good maintenance practice. Notwithstanding the foregoing, if this Lease is for 12 months or less, then Lessee shall surrender the Premises in the same condition as delivered to Lessee on the Start Date with NO allowance for ordinary wear and tear. Lessee shall repair any damage occasioned by the installation, maintenance or removal of Trade Fixtures, Lessee owned Alterations and/or Utility Installations, furnishings, and equipment as well as the removal of any storage tank installed by or for Lessee. Lessee shall also completely remove from the Premises any and all Hazardous Substances brought onto the Premises by or for Lessee, or any third party (except Hazardous Substances which were deposited via underground migration from areas outside of the Premises) even if such removal would require Lessee to perform or pay for work that exceeds statutory requirements. Trade Fixtures shall remain the property of Lessee and shall be removed by Lessee. Any personal property of Lessee not removed on or before the Expiration Date or any earlier termination date shall be deemed to have been abandoned by Lessee and may be disposed of or retained by Lessor as Lessor may desire. The failure by Lessee to timely vacate the Premises pursuant to this Paragraph 7.4(c) without the express written consent of Lessor shall constitute a holdover under the provisions of Paragraph 26 below.

8.            Insurance; Indemnity.

8.1          Insurance Premiums . The cost of the premiums for the insurance policies maintained by Lessor pursuant to paragraph 8 are included as Operating Expenses (see paragraph 4.2 (c)(iv)). Said costs shall include increases in the premiums resulting from additional coverage related to requirements of the holder of a mortgage or deed of trust covering the Premises, Building and/or Project, increased valuation of the Premises, Building and/or Project, and/or a general premium rate increase. Said costs shall not, however, include any premium increases resulting from the nature of the occupancy of any other tenant of the Building. If the Project was not insured for the entirety of the Base Year, then the base premium shall be the lowest annual premium reasonably obtainable for the required insurance as of the Start Date, assuming the most nominal use possible of the Building and/or Project. In no event, however, shall Lessee be responsible for any portion of the premium cost attributable to liability insurance coverage in excess of $2,000,000 procured under Paragraph 8.2(b).

8.2          Liability Insurance.

(a) Carried by Lessee. Lessee shall obtain and keep in force a Commercial General Liability policy of insurance protecting Lessee and Lessor as an additional insured against claims for bodily injury, personal injury and property damage based upon or arising out of the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than $1,000,000 $5,000,000 per occurrence with an annual aggregate of not less than $2,000,000 $5,000,000 . Lessee shall add Lessor as an additional insured by means of an endorsement at least as broad as the Insurance Service Organization’s “Additional Insured-Managers or Lessors of Premises” Endorsement and coverage shall also be extended to include damage caused by heat, smoke or fumes from a hostile fire. The policy shall not contain any intra-insured exclusions as between insured persons or organizations, but shall include coverage for liability assumed under this Lease as an “insured contract” for the performance of Lessee’s indemnity obligations under this Lease. The limits of said insurance shall not, however, limit the liability of Lessee nor relieve Lessee of any obligation hereunder. Lessee shall provide an endorsement on its liability policy(ies) which provides that its insurance shall be primary to and not contributory with any similar insurance carried by Lessor, whose insurance shall be considered excess insurance only.

(b) Carried by Lessor. Lessor shall maintain liability insurance as described in Paragraph 8.2(a), in addition to, and not in lieu of, the insurance required to be maintained by Lessee. Lessee shall not be named as an additional insured therein.

8.3          Property Insurance - Building, Improvements and Rental Value.

(a) Building and Improvements. Lessor shall obtain and keep in force a policy or policies of insurance in the name of Lessor, with loss payable to Lessor, any ground-lessor, and to any Lender insuring loss or damage to the Building and/or Project. The amount of such insurance shall be equal to the full insurable replacement cost of the Building and/or Project, as the same shall exist from time to time, or the amount required by any Lender, but in no event more than the commercially reasonable and available insurable value thereof. Lessee Owned Alterations and Utility Installations, Trade Fixtures, and Lessee’s personal property shall be insured by Lessee not by Lessor. If the coverage is available and commercially appropriate, such policy or policies shall insure against all risks of direct physical loss or damage (except the perils of flood and/or earthquake unless required by a Lender), including coverage for debris removal and the enforcement of any Applicable Requirements requiring the upgrading, demolition, reconstruction or replacement of any portion of the Premises as the result of a covered loss. Said policy or policies shall also contain an agreed valuation provision in lieu of any coinsurance clause, waiver of subrogation, and inflation guard protection causing an increase in the annual property insurance coverage amount by a factor of not less than the adjusted U.S. Department of Labor Consumer Price Index for All Urban Consumers for the city nearest to where the Premises are located. If such insurance coverage has a deductible clause, the deductible amount shall not exceed $5,000 per occurrence.

(b) Rental Value. Lessor shall also obtain and keep in force a policy or policies in the name of Lessor with loss payable to Lessor and any Lender, insuring the loss of the full Rent for one year with an extended period of indemnity for an additional 180 days (“Rental Value insurance”). Said insurance shall contain an agreed valuation provision in lieu of any coinsurance clause, and the amount of coverage shall be adjusted annually to reflect the projected Rent otherwise payable by Lessee, for the next 12 month period.

(c) Adjacent Premises. Lessee shall pay for any increase in the premiums for the property insurance of the Building and for the Common Areas or other buildings in the Project if said increase is caused by Lessee’s acts, omissions, use or occupancy of the Premises.

(d) Lessee’s Improvements. Since Lessor is the Insuring Party, Lessor shall not be required to insure Lessee Owned Alterations and Utility Installations unless the item in question has become the property of Lessor under the terms of this Lease.

8.4          Lessee’s Property; Business Interruption Insurance; Worker’s Compensation Insurance.

(a) Property Damage. Lessee shall obtain and maintain insurance coverage on all of Lessee’s personal property, Trade Fixtures, and Lessee Owned Alterations and Utility installations. Such insurance shall be full replacement cost coverage with a deductible of not to exceed $1,000 per occurrence. The proceeds from any such insurance shall be used by Lessee for the replacement of personal property, Trade Fixtures and Lessee Owned Alterations and Utility Installations.

(b) Worker’s Compensation Insurance. Lessee shall obtain and maintain Worker’s Compensation Insurance in such amount as may be required by Applicable Requirements. Such policy shall include a ‘Waiver of Subrogation’ endorsement. Lessee shall provide Lessor with a copy of such endorsement along with the certificate of insurance or copy of the policy required by paragraph 8.5.

(c) Business Interruption. Lessee shall obtain and maintain loss of income and extra expense insurance in amounts as will reimburse Lessee for direct or indirect loss of earnings attributable to all perils commonly insured against by prudent lessees in the business of Lessee or attributable to prevention of access to the Premises as a result of such perils.

(d) No Representation of Adequate Coverage. Lessor makes no representation that the limits or forms of coverage of insurance specified herein are adequate to cover Lessee’s property, business operations or obligations under this Lease.

8.5        Insurance Policies. Insurance required herein shall be by companies maintaining during the policy term a “General Policyholders Rating” of at least A-, VII, as set forth in the most current issue of “Best’s Insurance Guide”, or such other rating as may be required by a Lender. Lessee shall not do or permit to be done anything which invalidates the required insurance policies. Lessee shall, prior to the Start Date, deliver to Lessor certified copies of policies of such insurance or certificates with copies of the required endorsements evidencing the existence and amounts of the required insurance. No such policy shall be cancelable or subject to modification except after 10 days prior written notice to Lessor. Lessee shall, at least 30 days prior to the expiration of such policies, furnish Lessor with evidence of renewals or “insurance binders” evidencing renewal thereof, or Lessor may order such insurance and charge the cost thereof to Lessee, which amount shall be payable by Lessee to Lessor upon demand. Such policies shall be for a term of at least one year, or the length of the remaining term of this Lease, whichever is less. If either Party shall fail to procure and maintain the insurance required to be carried by it, the other Party may, but shall not be required to, procure and maintain the same.

8.6          Waiver of Subrogation. Without affecting any other rights or remedies, Lessee and Lessor each hereby release and relieve the other, and waive their entire right to recover damages against the other, for loss of or damage to its property arising out of or incident to the perils required to be insured against herein. The effect of such releases and waivers is not limited by the amount of insurance carried or required, or by any deductibles applicable hereto. The Parties agree to have their respective property damage insurance carriers waive any right to subrogation that such companies may have against Lessor or Lessee, as the case may be, so long as the insurance is not invalidated thereby.

8.7          Indemnity. Except for Lessor’s gross negligence or willful misconduct, Lessee shall indemnify, protect, defend and hold harmless the Premises, Lessor and its agents, Lessor’s master or ground lessor, partners and Lenders, from and against any and all claims, loss of rents and/or damages, liens, judgments, penalties, attorneys’ and consultants’ fees, expenses and/or liabilities arising out of, involving, or in connection with, the use and/or occupancy of the Premises by Lessee. If any action or proceeding is brought against Lessor by reason of any of the foregoing matters, Lessee shall upon notice defend the same at Lessee’s expense by counsel reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee in such defense. Lessor need not have first paid any such claim in order to be defended or indemnified.

8.8          Exemption of Lessor and its Agents from Liability. Notwithstanding the negligence or breach of this Lease by Lessor or its agents, neither Lessor nor its agents shall be liable under any circumstances for: (i) injury or damage to the person or goods, wares, merchandise or other property of Lessee, Lessee’s employees, contractors, invitees, customers, or any other person in or about the Premises, whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain, indoor air quality, the presence of mold or from the breakage, leakage, obstruction or other defects of pipes, fire sprinklers, wires, appliances, plumbing, HVAC or lighting fixtures, or from any other cause, whether the said

 

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injury or damage results from conditions arising upon the Premises or upon other portions of the Building, or from other sources or places, (ii) any damages arising from any act or neglect of any other tenant of Lessor or from the failure of Lessor or its agents to enforce the provisions of any other lease in the Project, or (iii) injury to Lessee’s business or for any loss of income or profit therefrom. Instead, it is intended that Lessee’s sole recourse in the event of such damages or injury be to file a claim on the insurance policy(ies) that Lessee is required to maintain pursuant to the provisions of paragraph 8.

8.9         Failure to Provide Insurance . Lessee acknowledges that any failure on its part to obtain or maintain the insurance required herein will expose Lessor to risks and potentially cause Lessor to incur costs not contemplated by this Lease, the extent of which will be extremely difficult to ascertain. Accordingly, for any month or portion thereof that Lessee does not maintain the required insurance and/or does not provide Lessor with the required binders or certificates evidencing the existence of the required insurance, the Base Rent shall be automatically increased, without any requirement for notice to Lessee, by an amount equal to 10% of the then existing Base Rent or $100, whichever is greater. The parties agree that such increase in Base Rent represents fair and reasonable compensation for the additional risk/costs that Lessor will incur by reason of Lessee’s failure to maintain the required insurance. Such increase in Base Rent shall in no event constitute a waiver of Lessee’s Default or Breach with respect to the failure to maintain such insurance, prevent the exercise of any of the other rights and remedies granted hereunder, nor relieve Lessee of its obligation to maintain the insurance specified in this Lease.

9.           Damage or Destruction .

9.1         Definitions .

(a) “ Premises Partial Damage ” shall mean damage or destruction to the improvements on the Premises, other than Lessee Owned Alterations and Utility Installations, which can reasonably be repaired in 3 months or less from the date of the damage or destruction, and the cost thereof does not exceed a sum equal to 6 month’s Base Rent. Lessor shall notify Lessee in writing within 30 days from the date of the damage or destruction as to whether or not the damage is Partial or Total.

(b) “ Premises Total Destruction ” shall mean damage or destruction to the improvements on the Premises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which cannot reasonably be repaired in 3 months or less from the date of the damage or destruction and/or the cost thereof exceeds a sum equal to 6 month’s Base Rent. Lessor shall notify Lessee in writing within 30 days from the date of the damage or destruction as to whether or not the damage is Partial or Total.

(c) “ Insured Loss ” shall mean damage or destruction to improvements on the Premises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which was caused by an event required to be covered by the insurance described in Paragraph 8.3(a), irrespective of any deductible amounts or coverage limits involved.

(d) “ Replacement Cost ” shall mean the cost to repair or rebuild the improvements owned by Lessor at the time of the occurrence to their condition existing immediately prior thereto, including demolition, debris removal and upgrading required by the operation of Applicable Requirements, and without deduction for depreciation.

(e) “ Hazardous Substance Condition ” shall mean the occurrence or discovery of a condition involving the presence of, or a contamination by, a Hazardous Substance, in, on, or under the Premises which requires restoration.

9.2         Partial Damage - Insured Loss . If a Premises Partial Damage that is an Insured Loss occurs, then Lessor shall, at Lessor’s expense, repair such damage (but not Lessee’s Trade Fixtures or Lessee Owned Alterations and Utility Installations) as soon as reasonably possible and this Lease shall continue in full force and effect; provided, however, that Lessee shall, at Lessor’s election, make the repair of any damage or destruction the total cost to repair of which is $5,000 or less, and, in such event, Lessor shall make any applicable insurance proceeds available to Lessee on a reasonable basis for that purpose. Notwithstanding the foregoing, if the required insurance was not in force or the insurance proceeds are not sufficient to effect such repair, the Insuring Party shall promptly contribute the shortage in proceeds as and when required to complete said repairs. In the event, however, such shortage was due to the fact that, by reason of the unique nature of the improvements, full replacement cost insurance coverage was not commercially reasonable and available, Lessor shall have no obligation to pay for the shortage in insurance proceeds or to fully restore the unique aspects of the Premises unless Lessee provides Lessor with the funds to cover same, or adequate assurance thereof, within 10 days following receipt of written notice of such shortage and request therefor. If Lessor receives said funds or adequate assurance thereof within said 10 day period, the party responsible for making the repairs shall complete them as soon as reasonably possible and this Lease shall remain in full force and effect. If such funds or assurance are not received, Lessor may nevertheless elect by written notice to Lessee within 10 days thereafter to: (i) make such restoration and repair as is commercially reasonable with Lessor paying any shortage in proceeds, in which case this Lease shall remain in full force and effect, or (ii) have this Lease terminate 30 days thereafter. Lessee shall not be entitled to reimbursement of any funds contributed by Lessee to repair any such damage or destruction. Premises Partial Damage due to flood or earthquake shall be subject to Paragraph 9.3, notwithstanding that there may be some insurance coverage, but the net proceeds of any such insurance shall be made available for the repairs if made by either Party.

9.3         Partial Damage - Uninsured Loss . If a Premises Partial Damage that is not an Insured Loss occurs, unless caused by a negligent or willful act of Lessee (in which event Lessee shall make the repairs at Lessee’s expense), Lessor may either: (i) repair such damage as soon as reasonably possible at Lessor’s expense, in which event this Lease shall continue in full force and effect, or (ii) terminate this Lease by giving written notice to Lessee within 30 days after receipt by Lessor of knowledge of the occurrence of such damage. Such termination shall be effective 60 days following the date of such notice. In the event Lessor elects to terminate this Lease, Lessee shall have the right within 10 days after receipt of the termination notice to give written notice to Lessor of Lessee’s commitment to pay for the repair of such damage without reimbursement from Lessor. Lessee shall provide Lessor with said funds or satisfactory assurance thereof within 30 days after making such commitment. In such event this Lease shall continue in full force and effect, and Lessor shall proceed to make such repairs as soon as reasonably possible after the required funds are available. If Lessee does not make the required commitment, this Lease shall terminate as of the date specified in the termination notice.

9.4         Total Destruction . Notwithstanding any other provision hereof, if a Premises Total Destruction occurs, this Lease shall terminate 60 days following such Destruction. If the damage or destruction was caused by the gross negligence or willful misconduct of Lessee, Lessor shall have the right to recover Lessor’s damages from Lessee, except as provided in Paragraph 8.6.

9.5         Damage Near End of Term . If at any time during the last 6 months of this Lease there is damage for which the cost to repair exceeds one month’s Base Rent, whether or not an Insured Loss, Lessor may terminate this Lease effective 60 days following the date of occurrence of such damage by giving a written termination notice to Lessee within 30 days after the date of occurrence of such damage. Notwithstanding the foregoing, if Lessee at that time has an exercisable option to extend this Lease or to purchase the Premises, then Lessee may preserve this Lease by, (a) exercising such option and (b) providing Lessor with any shortage in insurance proceeds (or adequate assurance thereof) needed to make the repairs on or before the earlier of (i) the date which is 10 days after Lessee’s receipt of Lessor’s written notice purporting to terminate this Lease, or (ii) the day prior to the date upon which such option expires. If Lessee duly exercises such option during such period and provides Lessor with funds (or adequate assurance thereof) to cover any shortage in insurance proceeds, Lessor shall, at Lessor’s commercially reasonable expense, repair such damage as soon as reasonably possible and this Lease shall continue in full force and effect. If Lessee fails to exercise such option and provide such funds or assurance during such period, then this Lease shall terminate on the date specified in the termination notice and Lessee’s option shall be extinguished.

9.6         Abatement of Rent; Lessee’s Remedies .

(a) Abatement . In the event of Premises Partial Damage or Premises Total Destruction or a Hazardous Substance Condition for which Lessee is not responsible under this Lease, the Rent payable by Lessee for the period required for the repair, remediation or restoration of such damage shall be abated in proportion to the degree to which Lessee’s use of the Premises is impaired, but not to exceed the proceeds received from the Rental Value insurance. All other obligations of Lessee hereunder shall be performed by Lessee, and Lessor shall have no liability for any such damage, destruction, remediation, repair or restoration except as provided herein.

(b) Remedies . If Lessor is obligated to repair or restore the Premises and does not commence, in a substantial and meaningful way, such repair or restoration within 90 days after such obligation shall accrue, Lessee may, at any time prior to the commencement of such repair or restoration, give written notice to Lessor and to any Lenders of which Lessee has actual notice, of Lessee’s election to terminate this Lease on a date not less than 60 days following the giving of such notice. If Lessee gives such notice and such repair or restoration is not commenced within 30 days thereafter, this Lease shall terminate as of the date specified in said notice. If the repair or restoration is commenced within such 30 days, this Lease shall continue in full force and effect. “Commence” shall mean either the unconditional authorization of the preparation of the required plans, or the beginning of the actual work on the Premises, whichever first occurs.

9.7         Termination; Advance Payments . Upon termination of this Lease pursuant to Paragraph 6.2(g) or Paragraph 9, an equitable adjustment shall be made concerning advance Base Rent and any other advance payments made by Lessee to Lessor. Lessor shall, in addition, return to Lessee so much of Lessee’s Security Deposit as has not been, or is not then required to be, used by Lessor.

10.           Real Property Taxes .

10.1         Definitions . As used herein, the term “ Real Property Taxes ” shall include any form of assessment; real estate, general, special, ordinary or extraordinary, or rental levy or tax (other than inheritance, personal income or estate taxes); improvement bond; and/or license fee imposed upon or levied against any legal or equitable interest of Lessor in the Project, Lessor’s right to other income therefrom, and/or Lessor’s business of leasing, by any authority having the direct or indirect power to tax and where the funds are generated with reference to the Project address and where the proceeds so generated are to be applied by the city, county or other local taxing authority of a jurisdiction within which the Project is located. “ Real Property Taxes ” shall also include any tax, fee, levy, assessment or charge, or any increase therein: (i) imposed by reason of events occurring during the term of this Lease, including but not limited to, a change in the ownership of the Project, (ii) a change in the improvements thereon, and/or (iii) levied or assessed on machinery or equipment provided by Lessor to Lessee pursuant to this Lease.

 

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10.2         Payment of Taxes . Except as otherwise provided in Paragraph 10.3, Lessor shall pay the Real Property Taxes applicable to the Project, and said payments shall be included in the calculation of Operating Expenses in accordance with the provisions of Paragraph 4.2.

10.3         Additional Improvements . Operating Expenses shall not include Real Property Taxes specified in the tax assessor’s records and work sheets as being caused by additional improvements placed upon the Project by other lessees or by Lessor for the exclusive enjoyment of such other lessees. Notwithstanding Paragraph 10.2 hereof, Lessee shall, however, pay to Lessor at the time Operating Expenses are payable under Paragraph 4.2, the entirety of any increase in Real Property Taxes if assessed solely by reason of Alterations, Trade Fixtures or Utility Installations placed upon the Premises by Lessee or at Lessee’s request or by reason of any alterations or improvements to the Premises made by Lessor subsequent to the execution of this Lease by the Parties.

10.4         Joint Assessment . If the Building is not separately assessed, Real Property Taxes allocated to the Building shall be an equitable proportion of the Real Property Taxes for all of the land and improvements included within the tax parcel assessed, such proportion to be determined by Lessor from the respective valuations assigned in the assessor’s work sheets or such other information as may be reasonably available. Lessor’s reasonable determination thereof, in good faith, shall be conclusive.

10.5         Personal Property Taxes . Lessee shall pay prior to delinquency all taxes assessed against and levied upon Lessee Owned Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all personal property of Lessee contained in the Premises. When possible, Lessee shall cause its Lessee Owned Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all other personal property to be assessed and billed separately from the real property of Lessor. If any of Lessee’s said property shall be assessed with Lessor’s real property, Lessee shall pay Lessor the taxes attributable to Lessee’s property within 10 days after receipt of a written statement setting forth the taxes applicable to Lessee’s property.

11.           Utilities and Services .

11.1         Services Provided by Lessor . Lessor shall provide heating, ventilation, air conditioning, reasonable amounts of electricity for normal lighting and office machines, water for reasonable and normal drinking and lavatory use in connection with an office, and replacement light bulbs and/or fluorescent tubes and ballasts for standard overhead fixtures. Lessor shall also provide janitorial services to the Premises and Common Areas 5 times per week, excluding Building Holidays, or pursuant to the attached janitorial schedule, if any. Lessor shall not, however, be required to provide janitorial services to kitchene or storage areas included within the Promises .

11.2   Services Exclusive to Lessee . Lessee shall pay for all water, gas, light, power, telephone and other utilities and services specially or exclusively supplied and/or metered exclusively to the Premises or to Lessee, together with any taxes thereon. If a service is deleted by Paragraph 1.13 and such service is not separately metered to the Premises, Lessee shall pay at Lessor’s option, either Lessee’s Share or a reasonable proportion to be determined by Lessor of all charges for such jointly metered service.

11.3   Hours of Service . Said services and utilities shall be provided during times set forth in Paragraph 1.12. Utilities and services that are not separately metered and required at other times shall be subject to advance request and reimbursement by Lessee to Lessor of the cost thereof.

11.4   Excess Usage by Lessee . Lessee shall not make connection to the utilities except by or through existing outlets and shall not install or use machinery or equipment in or about the Premises that uses excess water, lighting or power, or suffer or permit any act that causes extra burden upon the utilities or services, including but not limited to security and trash services, over standard office usage for the Project. Lessor shall require Lessee to reimburse Lessor for any excess expenses or costs that may arise out of a breach of this subparagraph by Lessee. Lessor may, in its sole discretion, install at Lessee’s expense supplemental equipment and/or separate metering applicable to Lessee’s excess usage or loading.

11.5   Interruptions . There shall be no abatement of rent and Lessor shall not be liable in any respect whatsoever for the inadequacy, stoppage, interruption or discontinuance of any utility or service due to riot, strike, labor dispute, breakdown, accident, repair or other cause beyond Lessor’s reasonable control or in cooperation with governmental request or directions.

12.           Assignment and Subletting .

12.1         Lessor’s Consent Required .

  (a) Lessee shall not voluntarily or by operation of law assign, transfer, mortgage or encumber (collectively, “ assign or assignment ”) or sublet all or any part of Lessee’s interest in this Lease or in the Premises without Lessor’s prior written consent.

  (b) Unless Lessee is a corporation and its stock is publicly traded on a national stock exchange, a change in the control of Lessee shall constitute an assignment requiring consent. The transfer, on a cumulative basis, of 25% or more of the voting control of Lessee shall constitute a change in control for this purpose.

  (c) The involvement of Lessee or its assets in any transaction, or series of transactions (by way of merger, sale, acquisition, financing, transfer, leveraged buyout or otherwise), whether or not a formal assignment or hypothecation of this Lease or Lessee’s assets occurs, which results or will result in a reduction of the Net Worth of Lessee by an amount greater than 25% of such Net Worth as it was represented at the time of the execution of this Lease or at the time of the most recent assignment to which Lessor has consented, or as it exists immediately prior to said transaction or transactions constituting such reduction, whichever was or is greater, shall be considered an assignment of this Lease to which Lessor may withhold its consent. “ Net Worth of Lessee ” shall mean the net worth of Lessee (excluding any guarantors) established under generally accepted accounting principles.

  (d) An assignment or subletting without consent shall, at Lessor’s option, be a Default curable after notice per Paragraph 13.1(c), or a noncurable Breach without the necessity of any notice and grace period. If Lessor elects to treat such unapproved assignment or subletting as a noncurable Breach, Lessor may either: (i) terminate this Lease, or (ii) upon 30 days written notice, increase the monthly Base Rent to 110% of the Base Rent then in effect. Further, in the event of such Breach and rental adjustment, (i) the purchase price of any option to purchase the Premises held by Lessee shall be subject to similar adjustment to 110% of the price previously in effect, and (ii) all fixed and non-fixed rental adjustments scheduled during the remainder of the Lease term shall be increased to 110% of the scheduled adjusted rent.

  (e) Lessee’s remedy for any breach of Paragraph 12.1 by Lessor shall be limited to compensatory damages and/or injunctive relief.

  (f) Lessor may reasonably withhold consent to a proposed assignment or subletting if Lessee is in Default at the time consent is requested.

  (g) Notwithstanding the foregoing, allowing a de minimis portion of the Premises, i e. 20 square feet or less, to be used by a third party vendor in connection with the installation of a vending machine or payphone shall not constitute a subletting.

12.2         Terms and Conditions Applicable to Assignment and Subletting .

  (a) Regardless of Lessor’s consent, no assignment or subletting shall: (i) be effective without the express written assumption by such assignee or sublessee of the obligations of Lessee under this Lease, (ii) release Lessee of any obligations hereunder, or (iii) alter the primary liability of Lessee for the payment of Rent or for the performance of any other obligations to be performed by Lessee.

  (b) Lessor may accept Rent or performance of Lessee’s obligations from any person other than Lessee pending approval or disapproval of an assignment. Neither a delay in the approval or disapproval of such assignment nor the acceptance of Rent or performance shall constitute a waiver or estoppel of Lessor’s right to exercise its remedies for Lessee’s Default or Breach.

  (c) Lessor’s consent to any assignment or subletting shall not constitute a consent to any subsequent assignment or subletting.

  (d) In the event of any Default or Breach by Lessee, Lessor may proceed directly against Lessee, any Guarantors or anyone else responsible for the performance of Lessee’s obligations under this Lease, including any assignee or sublessee, without first exhausting Lessor’s remedies against any other person or entity responsible therefore to Lessor, or any security held by Lessor.

  (e) Each request for consent to an assignment or subletting shall be in writing, accompanied by information relevant to Lessor’s determination as to the financial and operational responsibility and appropriateness of the proposed assignee or sublessee, including but not limited to the intended use and/or required modification of the Premises, if any, together with a fee of $500 as consideration for Lessor’s considering and processing said request. Lessee agrees to provide Lessor with such other or additional information and/or documentation as may be reasonably requested. (See also Paragraph 36)

  (f) Any assignee of, or sublessee under, this Lease shall, by reason of accepting such assignment, entering into such sublease, or entering into possession of the Premises or any portion thereof, be deemed to have assumed and agreed to conform and comply with each and every term, covenant, condition and obligation herein to be observed or performed by Lessee during the term of said assignment or sublease, other than such obligations as are contrary to or inconsistent with provisions of an assignment or sublease to which Lessor has specifically consented to in writing.

  (g) Lessor’s consent to any assignment or subletting shall not transfer to the assignee or sublessee any Option granted to the original Lessee by this Lease unless such transfer is specifically consented to by Lessor in writing. (See Paragraph 39.2)

12.3         Additional Terms and Conditions Applicable to Subletting . The following terms and conditions shall apply to any subletting by Lessee of all or any part of the Premises and shall be deemed included in all subleases under this Lease whether or not expressly incorporated therein:

  (a) Lessee hereby assigns and transfers to Lessor all of Lessee’s interest in all Rent payable on any sublease, and Lessor may collect such Rent and apply same toward Lessee’s obligations under this Lease; provided, however, that until a Breach shall occur in the performance of Lessee’s obligations, Lessee may collect said Rent. In the event that the amount collected by Lessor exceeds Lessee’s then outstanding obligations any such excess shall be refunded to Lessee. Lessor shall not, by reason of the foregoing or any assignment of such sublease, nor by reason of the collection of Rent, be deemed liable to the sublessee for any failure of Lessee to perform and comply with any of Lessee’s obligations to such

 

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sublessee. Lessee hereby irrevocably authorizes and directs any such sublessee, upon receipt of a written notice from Lessor stating that a Breach exists in the performance of Lessee’s obligations under this Lease, to pay to Lessor all Rent due and to become due under the sublease. Sublessee shall rely upon any such notice from Lessor and shall pay all Rents to Lessor without any obligation or right to inquire as to whether such Breach exists, notwithstanding any claim from Lessee to the contrary.

(b) In the event of a Breach by Lessee, Lessor may, at its option, require sublessee to attorn to Lessor, in which event Lessor shall undertake the obligations of the sublessor under such sublease from the time of the exercise of said option to the expiration of such sublease; provided, however, Lessor shall not be liable for any prepaid rents or security deposit paid by such sublessee to such sublessor or for any prior Defaults or Breaches of such sublessor.

(c) Any matter requiring the consent of the sublessor under a sublease shall also require the consent of Lessor.

(d) No sublessee shall further assign or sublet all or any part of the Premises without Lessor’s prior written consent.

(e) Lessor shall deliver a copy of any notice of Default or Breach by Lessee to the sublessee, who shall have the right to cure the Default of Lessee within the grace period, if any, specified in such notice. The sublessee shall have a right of reimbursement and offset from and against Lessee for any such Defaults cured by the sublessee.

13.           Default; Breach; Remedies .

13.1         Default; Breach. A “Default” is defined as a failure by the Lessee to comply with or perform any of the terms, covenants, conditions or Rules and Regulations under this Lease. A “Breach” is defined as the occurrence of one or more of the following Defaults, and the failure of Lessee to cure such Default within any applicable grace period:

(a) The abandonment of the Premises; or the vacating of the Premises without providing a commercially reasonable level of security, or where the coverage of the property insurance described in Paragraph 8.3 is jeopardized as a result thereof, or without providing reasonable assurances to minimize potential vandalism.

(b) The failure of Lessee to make any payment of Rent or any Security Deposit required to be made by Lessee hereunder, whether to Lessor or to a third party, when due, to provide reasonable evidence of insurance or surety bond, or to fulfill any obligation under this Lease which endangers or threatens life or property, where such failure continues for a period of 3 business days following written notice to Lessee. THE ACCEPTANCE BY LESSOR OF A PARTIAL PAYMENT OF RENT OR SECURITY DEPOSIT SHALL NOT CONSTITUTE A WAIVER OF ANY OF LESSOR’S RIGHTS, INCLUDING LESSOR’S RIGHT TO RECOVER POSSESSION OF THE PREMISES.

(c) The failure of Lessee to allow Lessor and/or its agents access to the Premises or the commission of waste, act or acts constituting public or private nuisance, and/or an illegal activity on the Premises by Lessee, where such actions continue for a period of 3 business days following written notice to Lessee.

(d) The failure by Lessee to provide (i) reasonable written evidence of compliance with Applicable Requirements, (ii) the service contracts, (iii) the rescission of an unauthorized assignment or subletting, (iv) an Estoppel Certificate or financial statements, (v) a requested subordination, (vi) evidence concerning any guaranty and/or Guarantor, (vii) any document requested under Paragraph 41, (viii) material data safety sheets (MSDS), or (ix) any other documentation or information which Lessor may reasonably require of Lessee under the terms of this Lease, where any such failure continues for a period of 10 days following written notice to Lessee.

(e) A Default by Lessee as to the terms, covenants, conditions or provisions of this Lease, or of the rules adopted under Paragraph 2.9 hereof, other than those described in subparagraphs 13.1(a), (b) or (c), above, where such Default continues for a period of 30 days after written notice; provided, however, that if the nature of Lessee’s Default is such that more than 30 days are reasonably required for its cure, then it shall not be deemed to be a Breach if Lessee commences such cure within said 30 day period and thereafter diligently prosecutes such cure to completion.

(f) The occurence of any of the following events: (i) the making of any general arrangement or assignment for the benefit of creditors; (ii) becoming a “debtor” as defined in 11 U.S.C. § 101 or any successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within 60 days); (iii) the appointment of a trustee or receiver to take possession of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest in this Lease, where possession is not restored to Lessee within 30 days; or (iv) the attachment, execution or other judicial seizure of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest in this Lease, where such seizure is not discharged within 30 days; provided, however, in the event that any provision of this subparagraph is contrary to any applicable law, such provision shall be of no force or effect, and not affect the validity of the remaining provisions.

(g) The discovery that any financial statement of Lessee or of any Guarantor given to Lessor was materially false.

(h) If the performance of Lessee’s obligations under this Lease is guaranteed: (i) the death of a Guarantor, (ii) the termination of a Guarantor’s liability with respect to this Lease other than in accordance with the terms of such guaranty, (iii) a Guarantor’s becoming insolvent or the subject of a bankruptcy filing, (iv) a Guarantor’s refusal to honor the guaranty, or (v)  a Guarantor’s breach of its guaranty obligation on an anticipatory basis, and Lessee’s failure, within 60 days following written notice of any such event, to provide written alternative assurance or security, which, when coupled with the then existing resources of Lessee, equals or exceeds the combined financial resources of Lessee and the Guarantors that existed at the time of execution of this Lease .

13.2         Remedies. If Lessee fails to perform any of its affirmative duties or obligations, within 10 days after written notice (or in case of an emergency, without notice), Lessor may, at its option, perform such duty or obligation on Lessee’s behalf, including but not limited to the obtaining of reasonably required bonds, insurance policies, or governmental licenses, permits or approvals. Lessee shall pay to Lessor an amount equal to 115% of the costs and expenses incurred by Lessor in such performance upon receipt of an invoice therefor. In the event of a Breach, Lessor may, with or without further notice or demand, and without limiting Lessor in the exercise of any right or remedy which Lessor may have by reason of such Breach:

(a) Terminate Lessee’s right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession to Lessor. In such event Lessor shall be entitled to recover from Lessee: (i) the unpaid Rent which had been earned at the time of termination; (ii) the worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that the Lessee proves could have been reasonably avoided; (iii) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that the Lessee proves could be reasonably avoided; and (iv) any other amount necessary to compensate Lessor for all the detriment proximately caused by the Lessee’s failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, including but not limited to the cost of recovering possession of the Premises, expenses of reletting, including necessary renovation and alteration of the Premises, reasonable attorneys’ fees, and that portion of any leasing commission paid by Lessor in connection with this Lease applicable to the unexpired term of this Lease. The worth at the time of award of the amount referred to in provision (iii) of the immediately preceding sentence shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of the District within which the Premises are located at the time of award plus one percent. Efforts by Lessor to mitigate damages caused by Lessee’s Breach of this Lease shall not waive Lessor’s right to recover any damages to which Lessor is otherwise entitled. If termination of this Lease is obtained through the provisional remedy of unlawful detainer, Lessor shall have the right to recover in such proceeding any unpaid Rent and damages as are recoverable therein, or Lessor may reserve the right to recover all or any part thereof in a separate suit. If a notice and grace period required under Paragraph 13.1 was not previously given, a notice to pay rent or quit, or to perform or quit given to Lessee under the unlawful detainer statute shall also constitute the notice required by Paragraph 13.1. In such case, the applicable grace period required by Paragraph 13.1 and the unlawful detainer statute shall run concurrently, and the failure of Lessee to cure the Default within the greater of the two such grace periods shall constitute both an unlawful detainer and a Breach of this Lease entitling Lessor to the remedies provided for in this Lease and/or by said statute.

(b) Continue the Lease and Lessee’s right to possession and recover the Rent as it becomes due, in which event Lessee may sublet or assign, subject only to reasonable limitations. Acts of maintenance, efforts to relet, and/or the appointment of a receiver to protect the Lessor’s interests, shall not constitute a termination of the Lessee’s right to possession.

(c) Pursue any other remedy now or hereafter available under the laws or judicial decisions of the state wherein the Premises are located. The expiration or termination of this Lease and/or the termination of Lessee’s right to possession shall not relieve Lessee from liability under any indemnity provisions of this Lease as to matters occurring or accruing during the term hereof or by reason of Lessee’s occupancy of the Premises.

13.3         Inducement Recapture. Any agreement for free or abated rent or other charges, or for the giving or paying by Lessor to or for Lessee of any cash or other bonus, inducement or consideration for Lessee’s entering into this Lease, all of which concessions are hereinafter referred to as “Inducement Provisions”, shall be deemed conditioned upon Lessee’s full and faithful performance of all of the terms, covenants and conditions of this Lease. Upon Breach of this Lease by Lessee, any such Inducement Provision shall automatically be deemed deleted from this Lease and of no further force or effect, and any rent, other charge, bonus, inducement or consideration theretofore abated, given or paid by Lessor under such an Inducement Provision shall be immediately due and payable by Lessee to Lessor, notwithstanding any subsequent cure of said Breach by Lessee. The acceptance by Lessor of rent or the cure of the Breach which initiated the operation of this paragraph shall not be deemed a waiver by Lessor of the provisions of this paragraph unless specifically so stated in writing by Lessor at the time of such acceptance.

13.4         Late Charges. Lessee hereby acknowledges that late payment by Lessee of Rent will cause Lessor to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed upon Lessor by any Lender. Accordingly, if any Rent shall not be received by Lessor within 5 days after such amount shall be due, then, without any requirement for notice to Lessee, Lessee shall immediately pay to Lessor a one-time late charge equal to 10% of each such overdue amount or $100, whichever is greater. The parties hereby agree that such late charge represents a fair

 

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and reasonable estimate of the costs Lessor will incur by reason of such late payment. Acceptance of such late charge by Lessor shall in no event constitute a waiver of Lessee’s Default or Breach with respect to such overdue amount, nor prevent the exercise of any of the other rights and remedies granted hereunder. In the event that a late charge is payable hereunder, whether or not collected, for 3 consecutive installments of Base Rent, then notwithstanding any provision of this Lease to the contrary, Base Rent shall, at Lessor’s option, become due and payable quarterly in advance.

13.5         Interest . Any monetary payment due Lessor hereunder, other than late charges, not received by Lessor, when due shall bear interest from the 31st day after it was due. The interest (“ Interest ”) charged shall be computed at the rate of 10% per annum but shall not exceed the maximum rate allowed by law. Interest is payable in addition to the potential late charge provided for in Paragraph 13.4.

13.6          Breach by Lessor.

(a) Notice of Breach .   Lessor shall not be deemed in breach of this Lease unless Lessor fails within a reasonable time to perform an obligation required to be performed by Lessor. For purposes of this Paragraph, a reasonable time shall in no event be less than 30 days after receipt by Lessor, and any Lender whose name and address shall have been furnished Lessee in writing for such purpose, of written notice specifying wherein such obligation of Lessor has not been performed; provided, however, that if the nature of Lessor’s obligation is such that more than 30 days are reasonably required for its performance, then Lessor shall not be in breach if performance is commenced within such 30 day period and thereafter diligently pursued to completion.

(b) Performance by Lessee on Behalf of Lessor .   In the event that neither Lessor nor Lender cures said breach within 30 days after receipt of said notice, or if having commenced said cure they do not diligently pursue it to completion, then Lessee may elect to cure said breach at Lessee’s expense and offset from Rent the actual and reasonable cost to perform such cure, provided however, that such offset shall not exceed an amount equal to the greater of one month’s Base Rent or the Security Deposit, reserving Lessee’s right to seek reimbursement from Lessor for any such expense in excess of such offset. Lessee shall document the cost of said cure and supply said documentation to Lessor.

14.             Condemnation .   If the Premises or any portion thereof are taken under the power of eminent domain or sold under the threat of the exercise of said power (collectively “ Condemnation ”), this Lease shall terminate as to the part taken as of the date the condemning authority takes title or possession, whichever first occurs. If more than 10% of the rentable floor area of the Premises , or more than 25% of Lessee’s Reserved Parking Spaces, if any, are is taken by Condemnation, Lessee may, at Lessee’s option, to be exercised in writing within 10 days after Lessor shall have given Lessee written notice of such taking (or in the absence of such notice, within 10 days after the condemning authority shall have taken possession) terminate this Lease as of the date the condemning authority takes such possession. If Lessee does not terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the portion of the Premises remaining, except that the Base Rent shall be reduced in proportion to the reduction in utility of the Premises caused by such Condemnation. Condemnation awards and/or payments shall be the property of Lessor, whether such award shall be made as compensation for diminution in value of the leasehold, the value of the part taken, or for severance damages; provided, however, that Lessee shall be entitled to any compensation paid by the condemnor for Lessee’s relocation expenses, loss of business goodwill and/or Trade Fixtures, without regard to whether or not this Lease is terminated pursuant to the provisions of this Paragraph. All Alterations and Utility Installations made to the Premises by Lessee, for purposes of Condemnation only, shall be considered the property of the Lessee and Lessee shall be entitled to any and all compensation which is payable therefor. In the event that this Lease is not terminated by reason of the Condemnation, Lessor shall repair any damage to the Premises caused by such Condemnation.

15.             Brokerage Fees.

                   15.1          Additional Commission . In addition to the payments owed pursuant to Paragraph 1.10 above, and unless Lessor and the Brokers otherwise agree in writing, Lessor agrees that: (a) if Lessee exercises any Option, (b) if Lessee or anyone affiliated with Lessee acquires from Lessor any rights to the Premises or other premises owned by Lessor and located within the Project, (c) if Lessee remains in possession of the Premises, with the consent of Lessor, after the expiration of this Lease, or (d) if Base Rent is increased, whether by agreement or operation of an escalation clause herein, then, Lessor shall pay Brokers a fee in accordance with the fee schedule of the Brokers in effect at the time the Lease was executed.

            15.2         Assumption of Obligations . Any buyer or transferee of Lessor’s interest in this Lease shall be deemed to have assumed Lessor’s obligation hereunder. Brokers shall be third party beneficiaries of the provisions of Paragraphs 1.10, 15, 22 and 31. If Lessor fails to pay to Brokers any amounts due as and for brokerage fees pertaining to this Lease when due, then such amounts shall accrue Interest. In addition, if Lessor fails to pay any amounts to Lessee’s Broker when due, Lessee’s Broker may send written notice to Lessor and Lessee of such failure and if Lessor fails to pay such amounts within 10 days after said notice, Lessee shall pay said monies to its Broker and offset such amounts against Rent. In addition, Lessee’s Broker shall be deemed to be a third party beneficiary of any commission agreement entered into by and/or between Lessor and Lessor’s Broker for the limited purpose of collecting any brokerage fee owed.

            15.3         Representations and Indemnities of Broker Relationships . Lessee and Lessor each represent and warrant to the other that it has had no dealings with any person, firm, broker or finder (other than the Brokers, if any) in connection with this Lease, and that no one other than said named Brokers is entitled to any commission or finder’s fee in connection herewith. Lessee and Lessor do each hereby agree to indemnify, protect, defend and hold the other harmless from and against liability for compensation or charges which may be claimed by any such unnamed broker, finder or other similar party by reason of any dealings or actions of the indemnifying Party, including any costs, expenses, attorneys’ fees reasonably incurred with respect thereto.

16.             Estoppel Certificates.

(a) Each Party (as “ Responding Party ”) shall within 10 days after written notice from the other Party (the “ Requesting Party ”) execute, acknowledge and deliver to the Requesting Party a statement in writing in form similar to the then most current “ Estoppel Certificate ” form published by the AIRCommercial Real Estate Association, plus such additional information, confirmation and/or statements as may be reasonably requested by the Requesting Party.

(b) If the Responding Party shall fail to execute or deliver the Estoppel Certificate within such 10 day period, the Requesting Party may execute an Estoppel Certificate stating that: (i) the Lease is in full force and effect without modification except as may be represented by the Requesting Party, (ii) there are no uncured defaults in the Requesting Party’s performance, and (iii) if Lessor is the Requesting Party, not more than one month’s rent has been paid in advance. Prospective purchasers and encumbrancers may rely upon the Requesting Party’s Estoppel Certificate, and the Responding Party shall be estopped from denying the truth of the facts contained in said Certificate. In addition, Lessee acknowledges that any failure on its part to provide such an Estoppel Certificate will expose Lessor to risks and potentially cause Lessor to incur costs not contemplated by this Lease, the extent of which will be extremely difficult to ascertain. Accordingly, should the Lessee fail to execute and/or deliver a requested Estoppel Certificate in a timely fashion the monthly Base Rent shall be automatically increased, without any requirement for notice to Lessee, by an amount equal to 10% of the then existing Base Rent or $100, whichever is greater for remainder of the Lease. The Parties agree that such increase in Base Rent represents fair and reasonable compensation for the additional risk/costs that Lessor will incur by reason of Lessee’s failure to provide the Estoppel Certificate. Such increase in Base Rent shall in no event constitute a waiver of Lessee’s Default or Breach with respect to the failure to provide the Estoppel Certificate nor prevent the exercise of any of the other rights and remedies granted hereunder.

(c) If Lessor desires to finance, refinance, or sell the Premises, or any part thereof, Lessee and all Guarantors shall within 10 days after written notice from Lessor deliver to any potential lender or purchaser designated by Lessor such financial statements as may be reasonably required by such lender or purchaser, including but not limited to Lessee’s financial statements for the past 3 years. All such financial statements shall be received by Lessor and such lender or purchaser in confidence and shall be used only for the purposes herein set forth.

17.             Definition of Lessor .   The term “ Lessor ” as used herein shall mean the owner or owners at the time in question of the fee title to the Premises, or, if this is a sublease, of the Lessee’s interest in the prior lease. In the event of a transfer of Lessor’s title or interest in the Premises or this Lease, Lessor shall deliver to the transferee or assignee (in cash or by credit) any unused Security Deposit held by Lessor. Upon such transfer or assignment and delivery of the Security Deposit, as aforesaid, the prior Lessor shall be relieved of all liability with respect to the obligations and/or covenants under this Lease thereafter to be performed by the Lessor. Subject to the foregoing, the obligations and/or covenants in this Lease to be performed by the Lessor shall be binding only upon the Lessor as hereinabove defined.

18.             Severability .   The invalidity of any provision of this Lease, as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof.

19.             Days .   Unless otherwise specifically indicated to the contrary, the word “ days ” as used in this Lease shall mean and refer to calendar days.

20.             Limitation on Liability .   The obligations of Lessor under this Lease shall not constitute personal obligations of Lessor or its partners, members, directors, officers or shareholders, and Lessee shall look to the Project, and to no other assets of Lessor, for the satisfaction of any liability of Lessor with respect to this Lease, and shall not seek recourse against Lessor’s partners, members, directors, officers or shareholders, or any of their personal assets for such satisfaction.

21.             Time of Essence .   Time is of the essence with respect to the performance of all obligations to be performed or observed by the Parties under this Lease.

22.             No Prior or Other Agreements; Broker Disclaimer . This Lease contains all agreements between the Parties with respect to any matter mentioned herein, and no other prior or contemporaneous agreement or understanding shall be effective. Lessor and Lessee each represents and warrants to the Brokers that it has made, and is relying solely upon, its own investigation as to the nature, quality, character and financial responsibility of the other Party to this Lease and as to the use, nature, quality and character of the Premises. Brokers have no responsibility with respect thereto or with respect to any default or breach hereof by either Party.

23.              Notices.

 

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23.1 Notice Requirements. All notices required or permitted by this Lease or applicable law shall be in writing and may be delivered in person (by hand or by courier) or may be sent by regular, certified or registered mail or U.S. Postal Service Express Mail, with postage prepaid, or by facsimile transmission, and shall be deemed sufficiently given if served in a manner specified in this Paragraph 23. The addresses noted adjacent to a Party’s signature on this Lease shall be that Party’s address for delivery or mailing of notices. Either Party may by written notice to the other specify a different address for notice, except that upon Lessee’s taking possession of the Premises, the Premises shall constitute Lessee’s address for notice. A copy of all notices to Lessor shall be concurrently transmitted to such party or parties at such addresses as Lessor may from time to time hereafter designate in writing.

23.2 Date of Notice. Any notice sent by registered or certified mail, return receipt requested, shall be deemed given on the date of delivery shown on the receipt card, or if no delivery date is shown, the postmark thereon. If sent by regular mail the notice shall be deemed given 72 hours after the same is addressed as required herein and mailed with postage prepaid. Notices delivered by United States Express Mail or overnight courier that guarantees next day delivery shall be deemed given 24 hours after delivery of the same to the Postal Service or courier. Notices transmitted by facsimile transmission or similar means including email shall be deemed delivered upon telephone confirmation of receipt (confirmation report from fax machine is sufficient), provided a copy is also delivered via delivery or mail. If notice is received on a Saturday, Sunday or legal holiday, it shall be deemed received on the next business day.

24.           Waivers.

(a)         No waiver by Lessor of the Default or Breach of any term, covenant or condition hereof by Lessee, shall be deemed a waiver of any other term, covenant or condition hereof, or of any subsequent Default or Breach by Lessee of the same or of any other term, covenant or condition hereof. Lessor’s consent to, or approval of, any act shall not be deemed to render unnecessary the obtaining of Lessor’s consent to, or approval of, any subsequent or similar act by Lessee, or be construed as the basis of an estoppel to enforce the provision or provisions of this Lease requiring such consent.

(b)         The acceptance of Rent by Lessor shall not be a waiver of any Default or Breach by Lessee. Any payment by Lessee may be accepted by Lessor on account of moneys or damages due Lessor, notwithstanding any qualifying statements or conditions made by Lessee in connection therewith, which such statements and/or conditions shall be of no force or effect whatsoever unless specifically agreed to in writing by Lessor at or before the time of deposit of such payment.

(c)         THE PARTIES AGREE THAT THE TERMS OF THIS LEASE SHALL GOVERN WITH REGARD TO ALL MATTERS RELATED THERETO AND HEREBY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE TO THE EXTENT THAT SUCH STATUTE IS INCONSISTENT WITH THIS LEASE.

25.           Disclosures Regarding The Nature of a Real Estate Agency Relationship.

(a)         When entering into a discussion with a real estate agent regarding a real estate transaction, a Lessor or Lessee should from the outset understand what type of agency relationship or representation it has with the agent or agents in the transaction. Lessor and Lessee acknowledge being advised by the Brokers in this transaction, as follows:

     (i)           Lessor’s Agent.    A Lessor’s agent under a listing agreement with the Lessor acts as the agent for the Lessor only. A Lessor’s agent or subagent has the following affirmative obligations: To the Lessor: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Lessor. To the Lessee and the Lessor: a. Diligent exercise of reasonable skills and care in performance of the agent’s duties, b. A duty of honest and fair dealing and good faith. c. A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the Parties. An agent is not obligated to reveal to either Party any confidential information obtained from the other Party which does not involve the affirmative duties set forth above.

     (ii)           Lessee’s Agent.    An agent can agree to act as agent for the Lessee only. In these situations, the agent is not the Lessor’s agent, even if by agreement the agent may receive compensation for services rendered, either in full or in part from the Lessor. An agent acting only for a Lessee has the following affirmative obligations. To the Lessee: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Lessee. To the Lessee and the Lessor: a. Diligent exercise of reasonable skills and care in performance of the agent’s duties, b. A duty of honest and fair dealing and good faith. c. A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the Parties. An agent is not obligated to reveal to either Party any confidential information obtained from the other Party which does not involve the affirmative duties set forth above.

     (iii)           Agent Representing Both Lessor and Lessee.    A real estate agent, either acting directly or through one or more associate licenses, can legally be the agent of both the Lessor and the Lessee in a transaction, but only with the knowledge and consent of both the Lessor and the Lessee. In a dual agency situation, the agent has the following affirmative obligations to both the Lessor and the Lessee: a. A fiduciary duty of utmost care, integrity, honesty and loyalty in the dealings with either Lesser or the Lessee. b. Other duties to the Lessor and the Lessee as stated above in subparagraphs (i) or (ii). In representing both Lessor and Lessee, the agent may not without the express permission of the respective Party, disclose to the other Party that the Lessor will accept rent in an amount less than that indicated in the listing or that the Lessee is willing to pay a higher rent than that offered. The above duties of the agent in a real estate transaction do not relieve a Lessor or Lessee from the responsibility to protect their own interests. Lessor and Lessee should carefully read all agreements to assure that they adequately express their understanding of the transaction. A real estate agent is a person qualified to advise about real estate. If legal or tax advise is desired, consult a competent professional.

(b)         Brokers have no responsibility with respect to any default or breach hereof by either Party. The Parties agree that no lawsuit or other legal proceeding involving any breach of duty, error or omission relating to this Lease may be brought against Broker more than one year after the Start Date and that the liability (including court costs and attorneys’ fees), of any Broker with respect to any such lawsuit and/or legal proceeding shall not exceed the fee received by such Broker pursuant to this Lease; provided, however, that the foregoing limitation on each Broker’s liability shall not be applicable to any gross negligence or willful misconduct of such Broker.

(c)         Lessor and Lessee agree to identify to Brokers as “Confidential” any communication or information given Brokers that is considered by such Party to be confidential.

26.           No Right To Holdover. Lessee has no right to retain possession of the Premises or any part thereof beyond the expiration or termination of this Lease. In the event that Lessee holds over, then the Base Rent shall be increased to 150% of the Base Rent applicable immediately preceding the expiration or termination. Nothing contained herein shall be construed as consent by Lessor to any holding over by Lessee.

27.           Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.

28.           Covenants and Conditions; Construction of Agreement. All provisions of this Lease to be observed or performed by Lessee are both covenants and conditions. In construing this Lease, all headings and titles are for the convenience of the Parties only and shall not be considered a part of this Lease. Whenever required by the context, the singular shall include the plural and vice versa. This Lease shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it.

29.           Binding Effect; Choice of Law. This Lease shall be binding upon the Parties, their personal representatives, successors and assigns and be governed by the laws of the State in which the Premises are located. Any litigation between the Parties hereto concerning this Lease shall be initiated and maintained in the county in which the Premises are located.

30.

           Subordination; Attornment; Non-Disturbance.

30.1         Subordination. This Lease and any Option granted hereby shall be subject and subordinate to any ground lease, mortgage, deed of trust, or other hypothecation or security device (collectively, “Security Device”), now or hereafter placed upon the Premises, to any and all advances made on the security thereof, and to all renewals, modifications, and extensions thereof. Lessee agrees that the holders of any such Security Devices (in this Lease together referred to as “Lender”) shall have no liability or obligation to perform any of the obligations of Lessor under this Lease. Any Lender may elect to have this Lease and/or any Option granted hereby superior to the lien of its Security Device by giving written notice thereof to Lessee, whereupon this Lease and such Options shall be deemed prior to such Security Device, notwithstanding the relative dates of the documentation or recordation thereof.

30.2         Attornment.   In the event that Lessor transfers title to the Premises, or the Premises are acquired by another upon the foreclosure or termination of a Security Device to which this Lease is subordinated (i) Lessee shall, subject to the non-disturbance provisions of Paragraph 30.3, attorn to such new owner, and upon request, enter into a new lease, containing all of the terms and provisions of this Lease, with such new owner for the remainder of the term hereof, or, at the election of the new owner, this Lease will automatically become a new lease between Lessee and such new owner, and (ii) Lessor shall thereafter be relieved of any further obligations hereunder and such new owner shall assume all of Lessor’s obligations, except that such new owner shall not: (a) be liable for any act or omission of any prior lessor or with respect to events occurring prior to acquisition of ownership; (b) be subject to any offsets or defenses which Lessee might have against any prior lessor, (c) be bound by prepayment of more than one month’s rent, or (d) be liable for the return of any security deposit paid to any prior lessor which was not paid or credited to such new owner.

30.3         Non-Disturbance.     With respect to Security Devices entered into by Lessor after the execution of this Lease, Lessee’s subordination of this Lease shall be subject to receiving a commercially reasonable non-disturbance agreement (a “Non-Disturbance Agreement’) from the Lender which Non-Disturbance Agreement provides that Lessee’s possession of the Premises, and this Lease, including any options to extend the term hereof, will not be disturbed so long as Lessee is not in Breach hereof and attorns to the record owner of the Premises. Further, within 60 days after the execution of this Lease, Lessor shall, if requested by Lessee, use its commercially reasonable efforts to obtain a Non-Disturbance Agreement from the holder of any pre-existing Security Device which is secured by the Premises. In the event that Lessor is unable to provide the Non-Disturbance Agreement within said 60 days, then Lessee may, at Lessee’s option, directly contact Lender and attempt to negotiate for the execution and delivery of a Non-Disturbance Agreement.

 

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30.4           Self-Executing .   The agreements contained in this Paragraph 30 shall be effective without the execution of any further documents; provided, however, that, upon written request from Lessor or a Lender in connection with a sale, financing or refinancing of the Premises, Lessee and Lessor shall execute such further writings as may be reasonably required to separately document any subordination, attornment and/or Non-Disturbance Agreement provided for herein.

31.           Attorneys’ Fees .   If any Party or Broker brings an action or proceeding involving the Premises whether founded in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys’ fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding is pursued to decision or judgment. The term, “Prevailing Party” shall include, without limitation, a Party or Broker who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the other Party or Broker of its claim or defense. The attorneys’ fees award shall not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse all attorneys’ fees reasonably incurred. In addition, Lessor shall be entitled to attorneys’ fees, costs and expenses incurred in the preparation and service of notices of Default and consultations in connection therewith, whether or not a legal action is subsequently commenced in connection with such Default or resulting Breach ($200 is a reasonable minimum per occurrence for such services and consultation).

32.            Lessor’s Access; Showing Premises; Repairs .   Lessor and Lessor’s agents shall have the right to enter the Premises at any time, in the case of an emergency, and otherwise at reasonable times after reasonable prior notice for the purpose of showing the same to prospective purchasers, lenders, or tenants, and making such alterations, repairs, improvements or additions to the Premises as Lessor may deem necessary or desirable and the erecting, using and maintaining of utilities, services, pipes and conduits through the Premises and/or other premises as long as there is no material adverse effect on Lessee’s use of the Premises. All such activities shall be without abatement of rent or liability to Lessee.

33.           Auctions.   Lessee shall not conduct, nor permit to be conducted, any auction upon the Premises without Lessor’s prior written consent. Lessor shall not be obligated to exercise any standard of reasonableness in determining whether to permit an auction.

34.           Signs,   (a)  Lessor may place on the Premises ordinary “For Sale” signs at any time and ordinary “For Lease” signs during the last 6 months of the term hereof. Lessor may not place any sign on the exterior of the Building that covers any of the windows of the Premises. Except for ordinary “For Sublease” signs which may be placed only on the Premises, Lessee shall not place any sign upon the Project without Lessor’s prior written consent. All signs must comply with all Applicable Requirements, (b) Lessee, at Lessor’s expense, shall be entitled to Building standard signage in the Building entrance lobby and Premises floor and Premises door.

35.           Termination; Merger.   Unless specifically stated otherwise in writing by Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual termination or cancellation hereof, or a termination hereof by Lessor for Breach by Lessee, shall automatically terminate any sublease or lesser estate in the Premises; provided, however, that Lessor may elect to continue any one or all existing subtenancies. Lessor’s failure within 10 days following any such event to elect to the contrary by written notice to the holder of any such lesser interest, shall constitute Lessor’s election to have such event constitute the termination of such interest.

36.            Consents .   Except as otherwise provided herein, wherever in this Lease the consent of a Party is required to an act by or for the other Party, such consent shall not be unreasonably withheld or delayed. Lessor’s actual reasonable costs and expenses (including but not limited to architects’, attorneys’, engineers’ and other consultants’ fees) incurred in the consideration of, or response to, a request by Lessee for any Lessor consent, including but not limited to consents to an assignment, a subletting or the presence or use of a Hazardous Substance, shall be paid by Lessee upon receipt of an invoice and supporting documentation therefor. Lessor’s consent to any act, assignment or subletting shall not constitute an acknowledgment that no Default or Breach by Lessee of this Lease exists, nor shall such consent be deemed a waiver of any then existing Default or Breach, except as may be otherwise specifically stated in writing by Lessor at the time of such consent. The failure to specify herein any particular condition to Lessor’s consent shall not preclude the imposition by Lessor at the time of consent of such further or other conditions as are then reasonable with reference to the particular matter for which consent is being given. In the event that either Party disagrees with any determination made by the other hereunder and reasonably requests the reasons for such determination, the determining party shall furnish its reasons in writing and in reasonable detail within 10 business days following such request.

37.            Guarantor .

37.1          Execution .   The Guarantors, if any, shall each execute a guaranty in the form most recently published by the AIR Commercial Real Estate Association.

37.2          Default . It shall constitute a Default of the Lessee if any Guarantor fails or refuses, upon request to provide: (a) evidence of the execution of the guaranty, including the authority of the party signing on Guarantor’s behalf to obligate Guarantor, and in the case of a corporate Guarantor, a certified copy of a resolution of its board of directors authorizing the making of such guaranty, (b) current financial statements, (c) an Estoppel Certificate, or (d) written confirmation that the guaranty is still in effect.

38.           Quiet Possession .   Subject to payment by Lessee of the Rent and performance of all of the covenants, conditions and provisions on Lessee’s part to be observed and performed under this Lease, Lessee shall have quiet possession and quiet enjoyment of the Premises during the term hereof.

39.            Options .   If Lessee is granted any Option, as defined below, then the following provisions shall apply.

39.1         Definition .   “ Option ” shall mean: (a) the right to extend or reduce the term of or renew this Lease or to extend or reduce the term of or renew any lease that Lessee has on other property of Lessor; (b) the right of first refusal or first offer to lease either the Premises or other property of Lessor; (c) the right to purchase, the right of first offer to purchase or the right of first refusal to purchase the Premises or other property of Lessor.

39.2         Options Personal To Original Lessee .   Any Option granted to Lessee in this Lease is personal to the original Lessee, and cannot be assigned or exercised by anyone other than said original Lessee and only while the original Lessee is in full possession of the Premises and, if requested by Lessor, with Lessee certifying that Lessee has no intention of thereafter assigning or subletting.

39.3         Multiple Options .   In the event that Lessee has any multiple Options to extend or renew this Lease, a later Option cannot be exercised unless the prior Options have been validly exercised.

39.4          Effect of Default on Options.

(a) Lessee shall have no right to exercise an Option: (i) during the period commencing with the giving of any notice of Default and continuing until said Default is cured, (ii) during the period of time any Rent is unpaid (without regard to whether notice thereof is given Lessee), (iii) during the time Lessee is in Breach of this Lease, or (iv) in the event that Lessee has been given 3 or more notices of separate Default, whether or not the Defaults are cured, during the 12 month period immediately preceding the exercise of the Option.

(b) The period of time within which an Option may be exercised shall not be extended or enlarged by reason of Lessee’s inability to exercise an Option because of the provisions of Paragraph 39.4(a).

(c) An Option shall terminate and be of no further force or effect, notwithstanding Lessee’s due and timely exercise of the Option, if, after such exercise and prior to the commencement of the extended term or completion of the purchase, (i) Lessee fails to pay Rent for a period of 30 days after such Rent becomes due (without any necessity of Lessor to give notice thereof), or (ii) if Lessee commits a Breach of this Lease.

40.           Security Measures .   Lessee hereby acknowledges that the Rent payable to Lessor hereunder does not include the cost of guard service or other security measures, and that Lessor shall have no obligation whatsoever to provide same. Lessee assumes all responsibility for the protection of the Premises, Lessee, its agents and invitees and their property from the acts of third parties. In the event, however, that Lessor should elect to provide security services, then the cost thereof shall be an Operating Expense.

41.

          Reservations .

(a) Lessor reserves the right: (i) to grant, without the consent or joinder of Lessee, such easements, rights and dedications that Lessor deems necessary, (ii) to cause the recordation of parcel maps and restrictions, (iii) to create and/or install new utility raceways, so long as such easements, rights, dedications, maps, restrictions, and utility raceways do not unreasonably interfere with the use of the Premises by Lessee. Lessor may also: change the name, address or title of the Building or Project upon at least 90 days prior written notice; provide and install, at Lessee’s expense, Building standard graphics on the door of the Premises and such portions of the Common Areas as Lessor shall reasonably deem appropriate; grant to any lessee the exclusive right to conduct any business as long as such exclusive right does not conflict with any rights expressly given herein; and to place such signs, notices or displays as Lessor reasonably deems necessary or advisable upon the roof, exterior of the Building or the Project or on signs in the Common Areas. Lessee agrees to sign any documents reasonably requested by Lessor to effectuate such rights. The obstruction of Lessee’s view, air, or light by any structure erected in the vicinity of the Building, whether by Lessor or third parties, shall in no way affect this Lease or impose any liability upon Lessor.

(b) Lessor also reserves the right to move Lessee to other space of comparable size in the Building or Project. Lessor must provide at least 45 days prior written notice of such move, and the new space must contain improvements of comparable quality to those contained within the Premises. Lessor shall pay the reasonable out of pocket costs that Lessee incurs with regard to such relocation, including the expenses of moving and necessary stationary revision costs. In no event, however, shall Lessor be required to pay an amount in excess of two months Base Rent. Lessee may not be relocated more than once during the term of this Lease.

(c) Lessee shall not: (i) use a representation (photographic or otherwise) of the Building or Project or their name(s) in connection with Lessee’s business; or (ii) suffer or permit anyone, except in emergency, to go upon the roof of the Building.

 

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42.             Performance Under Protest. If at any time a dispute shall arise as to any amount or sum of money to be paid by one Party to the other under the provisions hereof, the Party against whom the obligation to pay the money is asserted shall have the right to make payment “under protest” and such payment shall not be regarded as a voluntary payment and there shall survive the right on the part of said Party to institute suit for recovery of such sum. If it shall be adjudged that there was no legal obligation on the part of said Party to pay such sum or any part thereof, said Party shall be entitled to recover such sum or so much thereof as it was not legally required to pay. A Party who does not initiate suit for the recovery of sums paid “under protest” within 6 months shall be deemed to have waived its right to protest such payment.

43.             Authority; Multiple Parties; Execution

(a)    If either Party hereto is a corporation, trust, limited liability company, partnership, or similar entity, each individual executing this Lease on behalf of such entity represents and warrants that he or she is duly authorized to execute and deliver this Lease on its behalf. Each Party shall, within 30 days after request, deliver to the other Party satisfactory evidence of such authority.

(b)            If this Lease is executed by more than one person or entity as “Lessee”, each such person or entity shall be jointly and severally liable hereunder. It is agreed that any one of the named Lessees shall be empowered to execute any amendment to this Lease, or other document ancillary thereto and bind all of the named Lessees, and Lessor may rely on the same as if all of the named Lessees had executed such document.

(c)            This Lease may be executed by the Parties in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.

44.             Conflict. Any conflict between the printed provisions of this Lease and the typewritten or handwritten provisions shall be controlled by the typewritten or handwritten provisions.

45.             Offer. Preparation of this Lease by either party or their agent and submission of same to the other Party shall not be deemed an offer to lease to the other Party. This Lease is not intended to be binding until executed and delivered by all Parties hereto.

46.             Amendments. This Lease may be modified only in writing, signed by the Parties in interest at the time of the modification. As long as they do not materially change Lessee’s obligations hereunder, Lessee agrees to make such reasonable nonmonetary modifications to this Lease as may be reasonably required by a Lender in connection with the obtaining of normal financing or refinancing of the Premises.

47.             Waiver of Jury Trial.     THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING INVOLVING THE PROPERTY OR ARISING OUT OF THIS AGREEMENT.

48.             Arbitration of Disputes. An Addendum requiring the Arbitration of all disputes between the Parties and/or Brokers arising out of this Lease þ is ¨ is not attached to this Lease.

49.             Accessibility; Americans with Disabilities Act.

(a)            The Premises: ¨ have not undergone an inspection by a Certified Access Specialist (CASp). ¨ have undergone an inspection by a Certified Access Specialist (CASp) and it was determined that the Premises met all applicable construction-related accessibility standards pursuant to California Civil Code §55.51 et seq. ¨ have undergone an inspection by a Certified Access Specialist (CASp) and it was determined that the Premises did not meet all applicable construction-related accessibility standards pursuant to California Civil Code §55.51 et seq.

(b)            Since compliance with the Americans with Disabilities Act (ADA) is dependent upon Lessee’s specific use of the Premises, Lessor makes no warranty or representation as to whether or not the Premises comply with ADA or any similar legislation. In the event that Lessee’s use of the Premises requires modifications or additions to the Premises in order to be in ADA compliance, Lessee agrees to make any such necessary modifications and/or additions at Lessee’s expense.

LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.

ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AIR COMMERCIAL REAL ESTATE ASSOCIATION OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:

1.            SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.

2.            RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING AND SIZE OF THE PREMISES, THE STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT AND THE SUITABILITY OF THE PREMISES FOR LESSEE’S INTENDED USE.

WARNING: IF THE PREMISES ARE LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN PROVISIONS OF THE LEASE MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OF THE STATE IN WHICH THE PREMISES ARE LOCATED.

50.    Lessee shall be responsible for janitorial, within the Premises and payment for all utilities serving the Premises to include gas, and electric (separately metered) and prorated water and garbage pick-up. The Premises will have separate and dedicated HVAC units therefore the maintenance and utilities associated with operating the units shall be Tenant’s responsibility.

51. Lessee shall provide Lessor with financial statements within fifteen (15) days upon Lessor’s written request, however such request shall occur no more than once per calendar year.

The parties hereto have executed this Lease at the place and on the dates specified above their respective signatures.

Executed at:                                                                                                                              

 

Executed at:                                                                                                                              

On:                                                                                                                                            

 

On:                                                                                                                                            

By LESSOR:

 

By LESSEE:

1007 Clay Street Properties LLC

 

J.A. Cosmetics US, Inc. a Delaware

 

 

corporation

By:  LOGO

 

By: LOGO

Name Printed:  B. Reid Settlemier                                                                                              

 

Name Printed:   Tarang P. Amin                                                                                              

Title:   MANAGING MEMBER                                                                                                    

 

Title:    PRESIDENT & CEO                                                                                                       

By:                                                                                                                                              

 

By:                                                                                                                                                

Name Printed:                                                                                                                            

 

Name Printed:                                                                                                                            

Title:                                                                                                                                            

 

Title:                                                                                                                                            

Address:                                                                                                                                      

 

Address:                                                                                                                                      

 

 

 

 

 

 

Telephone:  (                                                                                                                               

 

Telephone:  (                                                                                                                               

Facsimile:  (                                                                                                                                 

 

Facsimile:  (                                                                                                                                 

Email:                                                                                                                                            

 

Email:                                                                                                                                            

Email:                                                                                                                                            

 

Email:                                                                                                                                            

Federal ID No.                                                                                                                              

 

Federal ID No.                                                                                                                              

 

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LESSOR’S BROKER:

  

LESSEE’S BROKER:

Colliers International                                                                                                      Cassidy Turley                                                                                              
Attn:  Benjamin Harrison, SVP                                                                                   Attn: Cynthia Lee                                                                                  
Address: 1999 Harrison Street, Suite 1750                                                              Address: 555 12th Street, Suite 1400                                                  
Oakland, CA 94 612                                                                                                          Oakland, CA 94 607                                                                               
____________________________________________________________    _____________________________________________________
Telephone: ###                                                                                          Telephone:   ###                                                                   
Facsimile: ###                                                                                          Facsimile:(                                                                                            
Email: ###                                                                Email:                                                                                                     
Broker/Agent BRE License #: 01364981                                                            Broker/Agent BRE License #:   01736714                                          
____________________________________________________________    _____________________________________________________
____________________________________________________________    _____________________________________________________

NOTICE: These forms are often modified to meet changing requirements of law and industry needs. Always write or call to make sure you are utilizing the most current form: AIR Commercial Real Estate Association, 500 N Brand Blvd, Suite 900, Glendale, CA 91203.

Telephone No. (213) 687-8777. Fax No.: (213) 687-8616.

©Copyright 1999-By AIR Commercial Real Estate Association.

All rights reserved.

No part of these works may be reproduced in any form without permission in writing.

 

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LOGO

OPTION(S) TO EXTEND

STANDARD LEASE ADDENDUM

Dated                                                           March 31, 2014                                                      

By and Between (Lessor) 1007 Clay Street Properties LLC                                                    

 

                                                                                                                   

By and Between (Lessee) J.A. Cosmetics US, Inc., a Delaware                                                    

corporation                                                                                                    

Address of Premises: 570 10th Street, Suite 300                                                              

Oakland, CA                                                                                         

Paragraph 52         

 

A.

OPTION(S) TO EXTEND:

Lessor hereby grants to Lessee the option to extend the term of this Lease for one  (1)                      additional five  (5)  year      month- period(s) commencing when the prior term expires upon each and all of the following terms and conditions:

(i)     In order to exercise an option to extend, Lessee must give written notice of such election to Lessor and Lessor must receive the same at least      9      but not more than      12      months prior to the date that the option period would commence, time being of the essence. If proper notification of the exercise of an option is not given and/or received, such option shall automatically expire. Options (if there are more than one) may only be exercised consecutively.

(ii)     The provisions of paragraph 39, including those relating to Lessee’s Default set forth in paragraph 39.4 of this Lease, are conditions of this Option.

(iii)    Except for the provisions of this Lease granting an option or options to extend the term, all of the terms and conditions of this Lease except where specifically modified by this option shall apply.

(iv)    This Option is personal to the original Lessee, and cannot be assigned or exercised by anyone other than said original Lessee and only while the original Lessee is in full possession of the Premises and without the intention of thereafter assigning or subletting.

(v)     The monthly rent for each month of the option period shall be calculated as follows, using the method(s) indicated below:

(Check Method(s) to be Used and Fill in Appropriately)

 

¨

I.         Cost of Living Adjustment(s) (COLA)

  a. On (Fill in COLA Dates):                                                                                                                                                                                         

 

 

the Base Rent shall be adjusted by the change, if any, from the Base Month specified below, in the Consumer Price Index of the Bureau of Labor Statistics of the U.S. Department of Labor for (select one): ¨ CPI W (Urban Wage Earners and Clerical Workers) or ¨ CPI U (All Urban Consumers), for (Fill in Urban Area):

 

 

All Items (1982-1984 = 100), herein referred to as “CPI”.

b.        The monthly rent payable in accordance with paragraph A.I.a. of this Addendum shall be calculated as follows: the Base Rent set forth in paragraph 1.5 of the attached Lease, shall be multiplied by a fraction the numerator of which shall be the CPI of the calendar month 2 months prior to the month(s) specified in paragraph A.I.a. above during which the adjustment is to take effect, and the denominator of which shall be the CPI of the calendar month which is 2 months prior to (select one): ¨ the first month of the term of this Lease as set forth in paragraph 1.3 (“Base Month”) or ¨ (Fill in Other “Base Month”):

 

 

The sum so calculated shall constitute the new monthly rent hereunder, but in no event, shall any such new monthly rent be less than the rent payable for the month immediately preceding the rent adjustment.

c.        In the event the compilation and/or publication of the CPI shall be transferred to any other governmental department or bureau or agency or shall be discontinued, then the index most nearly the same as the CPI shall be used to make such calculation. In the event that the Parties cannot agree on such alternative index, then the matter shall be submitted for decision to the American Arbitration Association in accordance with the then rules of said Association and the decision of the arbitrators shall be binding upon the parties. The cost of said Arbitration shall be paid equally by the Parties.

 

þ

II.        Market Rental Value Adjustment(s) (MRV)

a.        On (Fill in MRV Adjustment Date(s)) The date which is the first of the month following sixty-five ( 65) months from the Commencement Date.        

the Base Rent shall be adjusted to the “Market Rental Value” of the property as follows:

1) Four months prior to each Market Rental Value Adjustment Date described above, the Parties shall attempt to agree upon what the new MRV will be on the adjustment date. If agreement cannot be reached, within thirty days, then:

(a) Lessor and Lessee shall immediately appoint a mutually acceptable appraiser or broker to establish the new MRV within the next 30 days. Any associated costs will be split equally between the Parties, or

(b) Both Lessor and Lessee shall each immediately make a reasonable determination of the MRV and submit such determination, writing, to arbitration in accordance with the following provisions:

 

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(i) Within 15 days thereafter, Lessor and Lessee shall each select an ¨ appraiser or þ broker (“ Consultant ” - check one) of their choice to act as an arbitrator. The two arbitrators so appointed shall immediately select a third mutually acceptable Consultant to act as a third arbitrator.

(ii) The 3 arbitrators shall within 30 days of the appointment of the third arbitrator reach a decision as to what the actual MRV for the Premises is, and whether Lessor’s or Lessee’s submitted MRV is the closest thereto. The decision of a majority of the arbitrators shall be binding on the Parties. The submitted MRV which is determined to be the closest to the actual MRV shall thereafter be used by the Parties.

(iii) If either of the Parties fails to appoint an arbitrator within the specified 15 days, the arbitrator timely appointed by one of them shall reach a decision on his or her own, and said decision shall be binding on the Parties.

(iv) The entire cost of such arbitration shall be paid by the party whose submitted MRV is not selected, ie. the one that is NOT the closest to the actual MRV.

2) Notwithstanding the foregoing, the new MRV shall not be less than the rent payable for the month immediately preceding the rent adjustment.

 

  b.

Upon the establishment of each New Market Rental Value:

1) the new MRV will become the new “Base Rent” for the purpose of calculating any further Adjustments, and

2) the first month of each Market Rental Value term shall become the new “Base Month” for the purpose of calculating any further Adjustments.

 

¨

III.     Fixed Rental Adjustment(s) (FRA)

The Base Rent shall be increased to the following amounts on the dates set forth below:

 

On (Fill in FRA Adjustment Date(s)):         The New Base Rent shall be:
         
         
         
         
         
         
         
         
         
         

 

B.

NOTICE:

Unless specified otherwise herein, notice of any rental adjustments, other than Fixed Rental Adjustments, shall be made as specified in paragraph 23 of the Lease.

C.    BROKER’S FEE:

The Brokers shall bo paid a Brokerage Fee for each adjustment specified above in accordance with paragraph 15 of the Lease or if applicable, paragraph 9 of the Sublease.

NOTICE: These forms are often modified to meet changing requirements of law and industry needs. Always write or call to make sure you are utilizing the most current form: AIR Commercial Real Estate Association, 800 W 6th Street, Suite 800, Los Angeles, CA 90017. Telephone No. (213) 687-8777. Fax No.: (213) 687-8616.

 

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LOGO

ARBITRATION AGREEMENT

Standard Lease Addendum

Dated                                                           March 31, 2014                                                          

By and Between (Lessor) 1007 Clay Street Properties LLC                                                            

 

                                                                                                                           

(Lessee) J.A. Cosemetics US, Inc., a Delaware corporation                                      

 

                                                                                                                           

Address of Premises : 570 10th Street, Suite 300                                                                      

Oakland, CA                                                                                             

Paragraph 53         

A.         ARBITRATION OF DISPUTES:

Except as provided in Paragraph B below, the Parties agree to resolve any and all claims, disputes or disagreements arising under this Lease, including, but not limited to any matter relating to Lessor’s failure to approve an assignment, sublease or other transfer of Lessee’s interest in the Lease under Paragraph 12 of this Lease, any other defaults by Lessor, or any defaults by Lessee by and through arbitration as provided below and irrevocably waive any and all rights to the contrary. The Parties agree to at all times conduct themselves in strict, full, complete and timely accordance with the terms hereof and that any attempt to circumvent the terms of this Arbitration Agreement shall be absolutely null and void and of no force or effect whatsoever.

B.         DISPUTES EXCLUDED FROM ARBITRATION:

The following claims, disputes or disagreements under this Lease are expressly excluded from the arbitration procedures set forth herein: 1. Disputes for which a different resolution determination is specifically set forth in this Lease, 2. All claims by either party which (a) seek anything other than enforcement or determination of rights under this Lease, or (b) are primarily founded upon matters of fraud, willful misconduct, bad faith or any other allegations of tortious action, and seek the award of punitive or exemplary damages, 3. Claims relating to (a) Lessor’s exercise of any unlawful detainer rights pursuant to applicable law or (b) rights or remedies used by Lessor to gain possession of the Premises or terminate Lessee’s right of possession to the Premises, all of which disputes shall be resolved by suit filed in the applicable court of jurisdiction, the decision of which court shall be subject to appeal pursuant to applicable law and 4. All claims arising under Paragraph 39 of this Lease.

C.         APPOINTMENT OF AN ARBITRATOR:

All disputes subject to this Arbitration Agreement, shall be determined by binding arbitration before: ¨ a retired judge of the applicable court of jurisdiction (e.g., the Superior Court of the State of California) affiliated with Judicial Arbitration & Mediation Services, Inc. (“JAMS”), þ the American Arbitration Association (“AAA”) under its commercial arbitration rules, ¨                                                                                                                                                                                                                                                                                                                                                                                                                , or as may be otherwise mutually agreed by Lessor and Lessee (the “Arbitrator”). Such arbitration shall be initiated by the Parties, or either of them, within ten (10) days after either party sends written notice (the “Arbitration Notice”) of a demand to arbitrate by registered or certified mail to the other party and to the Arbitrator. The Arbitration Notice shall contain a description of the subject matter of the arbitration, the dispute with respect thereto, the amount involved, if any, and the remedy or determination sought. If the Parties have agreed to use JAMS they may agree on a retired judge from the JAMS panel. If they are unable to agree within ten days, JAMS will provide a list of three available judges and each party may strike one. The remaining judge (or if there are two, the one selected by JAMS) will serve as the Arbitrator. If the Parties have elected to utilize AAA or some other organization, the Arbitrator shall be selected in accordance with said organization’s rules. In the event the Arbitrator is not selected as provided for above for any reason, the party initiating arbitration shall apply to the appropriate Court for the appointment of a qualified retired judge to act as the Arbitrator.

D.         ARBITRATION PROCEDURE:

    1.         PRE-HEARING ACTIONS. The Arbitrator shall schedule a pre-hearing conference to resolve procedural matters, arrange for the exchange of information, obtain stipulations, and narrow the issues. The Parties will submit proposed discovery schedules to the Arbitrator at the pre-hearing conference. The scope and duration of discovery will be within the sole discretion of the Arbitrator. The Arbitrator shall have the discretion to order a pre-hearing exchange of information by the Parties, including, without limitation, production of requested documents, exchange of summaries of testimony of proposed witnesses, and examination by deposition of parties and third-party witnesses. This discretion shall be exercised in favor of discovery reasonable under the circumstances. The Arbitrator shall issue subpoenas and subpoenas duces tecum as provided for in the applicable statutory or case law (e.g., in California Code of Civil Procedure Section 1282.6).

    2.         THE DECISION. The arbitration shall be conducted in the city or county within which the Premises are located at a reasonably convenient site. Any Party may be represented by counsel or other authorized representative. In rendering a decision(s), the Arbitrator shall determine the rights and obligations of the Parties according to the substantive laws and the terms and provisions of this Lease. The Arbitrator’s decision shall be based on the evidence introduced at the hearing, including all logical and reasonable inferences therefrom. The Arbitrator may make any determination and/or grant any remedy or relief that is just and equitable. The decision must be based on, and accompanied by, a written statement of decision explaining the factual and legal basis for the decision as to each of the principal controverted issues. The decision shall be conclusive and binding, and it may thereafter be confirmed as a judgment by the court of applicable jurisdiction, subject only to challenge on the grounds set forth in the applicable statutory or case law (e.g., in California Code of Civil Procedure Section 1286.2). The validity and enforceability of the Arbitrator’s decision is to be determined exclusively by the court of appropriate jurisdiction pursuant to the provisions of this Lease. The Arbitrator may award costs, including without limitation, Arbitrator’s fees and costs, attorneys’ fees, and expert and witness costs, to the prevailing party, if any, as determined by the Arbitrator in his discretion.

 

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Whenever a matter which has been submitted to arbitration involves a dispute as to whether or not a particular act or omission (other than a failure to pay money) constitutes a Default, the time to commence or cease such action shall be tolled from the date that the Notice of Arbitration is served through and until the date the Arbitrator renders his or her decision. Provided, however, that this provision shall NOT apply in the event that the Arbitrator determines that the Arbitration Notice was prepared in bad faith.

Whenever a dispute arises between the Parties concerning whether or not the failure to make a payment of money constitutes a default, the service of an Arbitration Notice shall NOT toll the time period in which to pay the money. The Party allegedly obligated to pay the money may, however, elect to pay the money “under protest” by accompanying said payment with a written statement setting forth the reasons for such protest. If thereafter, the Arbitrator determines that the Party who received said money was not entitled to such payment, said money shall be promptly returned to the Party who paid such money under protest together with Interest thereon as defined in Paragraph 13.5. If a Party makes a payment “under protest” but no Notice of Arbitration is filed within thirty days, then such protest shall be deemed waived. (See also Paragraph 42 or 43)

NOTICE: These forms are often modified to meet changing requirements of law and industry needs. Always write or call to make sure you are utilizing the most current form: AIR Commercial Real Estate Association, 800 W 6th Street, Suite 800, Los Angeles, CA 90017. Telephone No. (213) 687-8777. Fax No.: (213) 687-8616.

 

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LOGO

RULES AND REGULATIONS FOR

STANDARD OFFICE LEASE

Dated: March 31, 2014                                                                                                                                        

By and Between 1007 Clay Street Properties LLC (“Lessor”) and J.A. Cosmetics US, Inc., a Delaware corporation (“Lessee”)

GENERAL RULES

1.     Lessee shall not suffer or permit the obstruction of any Common Areas, including driveways, walkways and stairways.

2.     Lessor reserves the right to refuse access to any persons Lessor in good faith judges to be a threat to the safety and reputation of the Project and its occupants.

3.     Lessee shall not make or permit any noise or odors that annoy or interfere with other lessees or persons having business within the Project.

4.     Lessee shall not keep animals or birds within the Project, and shall not bring bicycles, motorcycles or other vehicles into areas not designated as authorized for same.

5.     Lessee shall not make, suffer or permit litter except in appropriate receptacles for that purpose.

6.     Lessee shall not alter any lock or install new or additional locks or bolts.

7.     Lessee shall be responsible for the inappropriate use of any toilet rooms, plumbing or other utilities. No foreign substances of any kind are to be inserted therein.

8.     Lessee shall not deface the walls, partitions or other surfaces of the Premises or Project.

9.     Lessee shall not suffer or permit anything in or around the Premises or Building that causes excessive vibration or floor loading in any part of the Project.

10.  Furniture, significant freight and equipment shall be moved into or out of the building only with the Lessor’s knowledge and consent, and subject to such reasonable limitations, techniques and timing, as may be designated by Lessor. Lessee shall be responsible for any damage to the Office Building Project arising from any such activity.

11.  Lessee shall not employ any service or contractor for services or work to be performed in the Building, except as approved by Lessor.

12.  Lessor reserves the right to close and lock the Building on Saturdays, Sundays and Building Holidays, and on other days between the hours of 6: 00 P.M. and 7: 00 A.M. of the following day. If Lessee uses the Premises during such periods, Lessee shall be responsible for securely locking any doors it may have opened for entry.

13.  Lessee shall return all keys at the termination of its tenancy and shall be responsible for the cost of replacing any keys that are lost.

14.  No window coverings, shades or awnings shall be installed or used by Lessee, other than those approved by Lessor.

15.  No Lessee, employee or invitee shall go upon the roof of the Building.

16.  Lessee shall not suffer or permit smoking or carrying of lighted cigars or cigarettes in areas reasonably designated by Lessor or by applicable governmental agencies as non-smoking areas.

17.  Lessee shall not use any method of heating or air conditioning other than as provided by Lessor.

18.  Lessee shall not install, maintain or operate any vending machines upon the Premises without Lessor’s written consent.

19.  The Premises shall not be used for lodging or manufacturing, cooking or food preparation .

20.  Lessee shall comply with all safety, fire protection and evacuation regulations established by Lessor or any applicable governmental agency.

21.  Lessor reserves the right to waive any one of these rules or regulations, and/or as to any particular Lessee, and any such waiver shall not constitute a waiver of any other rule or regulation or any subsequent application thereof to such Lessee.

22.  Lessee assumes all risks from theft or vandalism and agrees to keep its Premises locked as may be required.

23.  Lessor reserves the right to make such other reasonable rules and regulations as it may from time to time deem necessary for the appropriate operation and safety of the Project and its occupants. Lessee agrees to abide by these and such rules and regulations.

PARKING RULES

1.     Parking areas shall be used only for parking by vehicles no longer than full size, passenger automobiles herein called “Permitted Size Vehicles.” Vehicles other than Permitted Size Vehicles are herein referred to as “Oversized Vehicles.”

2.     Lessee shall not permit or allow any vehicles that belong to or are controlled by Lessee or Lessee’s employees, suppliers, shippers, customers, or invitees to be loaded, unloaded, or parked in areas other than those designated by Lessor for such activities.

3.     Parking stickers or identification devices shall be the property of Lessor and be returned to Lessor by the holder thereof upon termination of the holder’s parking privileges. Lessee will pay such replacement charge as is reasonably established by Lessor for the loss of such devices.

4.     Lessor reserves the right to refuse the sale of monthly identification devices to any person or entity that willfully refuses to comply with the applicable rules, regulations, laws and/or agreements.

5.     Lessor reserves the right to relocate all or a part of parking spaces from floor to floor, within one floor, and/or to reasonably adjacent offsite location(s), and to reasonably allocate them between compact and standard size spaces, as long as the same complies with applicable laws, ordinances and regulations.

6.     Users of the parking area will obey all posted signs and park only in the areas designated for vehicle parking.

7.     Unless otherwise instructed, every person using the parking area is required to park and lock his own vehicle. Lessor will not be responsible for any damage to vehicles, injury to persons or loss of property, all of which risks are assumed by the party using the parking area.

8.     Validation, if established, will be permissible only by such method or methods as Lessor and/or its licensee may establish at rates generally applicable to visitor parking.

9.     The maintenance, washing, waxing or cleaning of vehicles in the parking structure or Common Areas is prohibited.

10.   Lessee shall be responsible for seeing that all of its employees, agents and invitees comply with the applicable parking rules, regulations, laws and agreements.

11.   Lessor reserves the right to modify these rules and/or adopt such other reasonable and non discriminatory rules and regulations as it may deem necessary for the proper operation of the parking area.

12.   Such parking use as is herein provided is intended merely as a license only and no bailment is intended or shall be created hereby.

NOTICE: These forms are often modified to meet changing requirements of law and industry needs. Always write or call to make sure you are utilizing the most current form: AIR Commercial Real Estate Association, 800 W 6th Street, Suite 800, Los Angeles, CA 90017. Telephone No. (213) 687-8777. Fax No.: (213) 687-8616.

 

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Exhibit 10.2

Addendum to Standard Multi-Tenant Office Lease - Gross

This Addendum to Standard Multi-Tenant Office Lease - Gross (this “ Addendum ”) is made and entered into by and between 1007 Clay Street Properties LLC, a California limited liability company (“ Lessor ”) and J.A. Cosmetics US, Inc., a Delaware corporation (“ Lessee ”), and is dated as of the date set forth on the first page of the Standard Multi-Tenant Office Lease - Gross between Lessor and Lessee (the “ Base Lease ”) to which this Addendum is attached. The Lease covers certain premises located at 570 10th Street in Oakland, California as described in more particularity in the Base Lease (the “ Premises ”). The promises, covenants, agreements and declarations made and set forth herein are intended to and shall have the same force and effect as if set forth at length in the body of the Base Lease. To the extent that the provisions of this Addendum are inconsistent with the terms and conditions of the Base Lease, the terms and conditions of this Addendum shall control. Capitalized terms used herein and not otherwise defined shall have the meanings given those terms in the Base Lease. As used in this Addendum, the term “ Lease ” means the Base Lease as modified by this Addendum.

1. Term . Notwithstanding anything in Paragraph 1.3 of the Base Lease to the contrary, the “Commencement Date” of the Term of the Lease shall occur on the date on which (a) the Lease has been executed and delivered by Lessee and Lessor and (b) Lessor has delivered possession of the Premises to Lessee in the condition described in Paragraph 2.2 of the Base Lease, and the “Expiration Date” shall be the date that is sixty-five (65) months thereafter. Lessor agrees to use its best commercially reasonable efforts to deliver possession of the Premises to Lessee upon mutual execution and delivery of the Lease. If, despite said efforts, Lessor is unable to deliver the Premises on such date, Lessor shall not be subject to any liability therefor, nor shall such failure affect the validity of this Lease; provided, however, that if Lessor has not delivered possession of the Premises to Lessee on or prior to the date that is ninety (90) days following the mutual execution and delivery of the Lease, Lessee shall have the right to terminate the Lease by written notice to Lessor given within ten (10) days of the expiration of such 90-day period, upon which Lessor shall promptly refund to Lessee any prepaid rent or other amounts deposited with Lessor under the terms of the Lease.

2. Rent . Notwithstanding anything to the contrary contained in the Base Lease, Lessee’s obligation to pay Rent under the Lease shall commence on September 1, 2014 (the “ Rent Commencement Date ”). Commencing on the Rent Commencement Date, Lessee shall pay Base Rent as set forth below, subject to the terms and provisions of the Work Letter (as hereinafter defined):

 

Months

   Monthly Base Rent  

Rent Commencement Date (i.e. Month 6) – Month 12

   $ 27,812.40   

Months 13 - 24

   $ 28,646.77   

Months 25 - 36

   $ 29,506.18   

Months 37 - 48

   $ 30,391.36   

Months 49 - 60

   $ 31,303.10   

Months 61 - 65

   $ 32,242.19   

 

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Lessor and Lessee acknowledge and agree that no Rent shall be due during the period commencing on the Commencement Date and ending on the date immediately prior to the Rent Commencement Date.

3. Common Area Changes and Controls . Notwithstanding anything in Paragraph 2.10 of the Lease to the contrary, Lessor shall not unreasonably interfere with Lessee’s ability to use the Premises in the exercise of Lessor’s control over the Common Areas, and shall not make any changes or take any actions that materially adversely impact Lessee’s access to the Premises, or otherwise materially adversely affect Lessee’s use of the Premises.

4. Operating Expenses . Notwithstanding anything in the Lease to the contrary, in particular Paragraph 4.2 thereof, the parties agree as follows:

(a) Exclusions . “Operating Expenses” shall expressly exclude the following: (1) any costs associated with Lessor’s maintenance and repair responsibilities that Lessor and Lessee have expressly agreed are Lessor’s sole responsibility under the Lease; (2) the cost of Lessee improvements made for new tenant(s) of the Building or Project; (3) financing or refinancing costs, including interest, principal, points and fees on debts or amortization on any mortgage or mortgages or any other debt instrument encumbering the Building or Project; (4) salaries and fringe benefits for officers, employees (above the position of Building manager) and executives; (5) any management or administrative fee in excess of amounts customarily charged by owners of comparable projects in the Oakland, California market area; (6) any ground lease rental or charges; (7) any (i) estate, inheritance, income or transfer taxes, (ii) the cost of any challenge to taxes unless such challenge results in a verifiable tax savings to Lessee, or (iii) any tax penalties assessed due to any action or inaction by Lessor or its employees, agents or contractors; (8) rentals for items (except when needed in connection with normal repairs and maintenance of permanent systems) which if purchased, rather than rented, would constitute a capital repair, replacement, improvement or equipment under generally accepted accounting principles consistently applied or otherwise; (9) costs incurred by Lessor that Lessor is or should be reimbursed for by insurance proceeds, other occupants of the Building or Project, or other third parties; (10) depreciation, amortization or interest payments; (11) marketing costs, including without limitation, leasing commissions, attorneys’ fees and other costs and expenses incurred in connection with lease, sublease and/or assignment negotiations and transactions with Lessee or present or prospective tenants or other occupants of the Building or Project; (12) costs incurred by Lessor due to the violation by Lessor or any other tenant of the terms and conditions of any lease of space in the Building or Project or costs incurred by Lessor due to a violation of laws or recorded covenants by Lessor or its employees, agents or contractors, or by any other Lessee, occupant or user of the Building or Project; (13) any cost or expenses could be classified as a capital expenses under generally accepted accounting principals consistently applied unless such cost is expressly permitted under the terms of the Lease and is amortized over the useful life thereof on a staightline basis in accordance with generally accepted accounting principals in which case Operating Expenses for a particular month shall only include the monthly amortized portion of such cost or expenses allocable to such month; (14) overhead and profit increment paid to Lessor or to subsidiaries or affiliates of Lessor for goods and/or services in or to the Building or Project to the extent the same exceeds the costs of such goods and/or services rendered by unaffiliated third parties on a competitive basis; (15) any costs incurred in connection with remedying any violations of any recorded covenants or life, fire and safety

 

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codes, ordinances, statutes or other laws, including, without limitation, the ADA ( including without limitation any penalties or damages incurred due to such non compliance) which violations existed as of the Start Date; (16) costs arising from the negligence or willful misconduct of Lessor or its employees, agents, contractors or any vendors or providers of materials or services selected, hired or engaged by Lessor or its agents; (17) any and all costs arising from the presence of Hazardous Substances in or about the Premises, Building, or the Project, not placed in such by Lessee or its employees, agents or contractors, including without limitation costs incurred in connection with any environmental investigation, clean-up, response action, or remediation, and costs and expenses associated with the defense, administration, settlement, monitoring or management thereof; (18) costs (including in connection therewith all attorneys’ fees and costs of settlement judgments and payments in lieu thereof) arising from claims, disputes or potential disputes in connection with potential or actual claims litigation or arbitrations pertaining to Lessor and/or the Building or Project; (19) costs associated with the operation of the business of the partnership or entity which constitutes Lessor, including general corporate overhead, accounting and legal matters, the costs of selling, syndicating, financing, mortgaging or hypothecating any of Lessor’s interest in the Building or Project, any “in-house” legal and/or accounting fees, costs of any disputes between Lessor and its employees, agents, contractors or other third parties, or fees paid in connection with disputes with other tenants; (20) costs or expenses of utilities directly metered to tenants of the Project or Building and paid separately by such tenants; (21) any “non-standard” cleaning, including, but not limited to construction cleanup or special cleanings associated with parties/events and specific tenant requirements in excess of service provided to Lessee, including related trash collection, removal, hauling and dumping; (22) reserves of any kind; and (23) any other expenses which, in accordance with generally accepted accounting principles, consistently applied, would not normally and customarily charged as common area maintenance expenses by owners of comparable buildings in the Oakland, California market area.

(b) Determination of Operating Expenses . In determining the amount of Operating Expenses for any year (including the Base Year), if less than 95% of the rentable area of the Building or Project is occupied by tenants at any time during any such year, Operating Expenses shall be determined for such year to be an amount equal to the like expenses which would normally be expected to be incurred had such occupancy been 95% throughout the year. Furthermore, in the event that any new category of expense is added to Operating Expenses after the Base Year (for example, if Lessor did not carry earthquake insurance during the Base Year but thereafter elects to carry the same), Operating Expenses for the Base Year shall be increased by the reasonable costs of such new category of expenses had Lessor incurred such category of expense during the Base Year.

(c) Audit Right . Lessee shall have the right, at its expense and upon written notice given to Lessor no later than one hundred twenty (120) days after receipt of the annual statement showing Lessee’s share of actual Common Area Operating Expenses for the preceding year, to make an audit of all of Lessor’s bills, records, receipts, insurance certificates and policies relating to Operating Expenses for the immediately preceding calendar year. Upon such written request of Lessee, Lessor shall make available to Lessee, during normal business hours, at the location where Lessor’s books and records are kept, such information as Lessee shall reasonably request. Lessor shall cooperate with Lessee in its explanation of its bills and records. Lessee reserves the right to retain the services of an independent certified public accountant for such

 

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audit, which accountant shall not be paid by a contingent or percentage based fee. Lessee shall diligently complete any such audit of Operating Expenses and shall deliver to Lessor the written results of such audit within fifteen (15) business days after Lessee receives the same. If such audit discloses an overpayment by Lessee, Lessor shall pay such amount to Lessee within thirty (30) days. If such audit discloses a discrepancy in excess of five percent (5%), Lessor shall reimburse Lessee for the reasonable costs of the audit. If such audit discloses additional amounts due from Lessee, Lessee shall pay such amounts within fifteen (15) business days of completion of such audit. Should Lessor disagree with the results of Lessee’s audit, Lessor and Lessee shall refer the matter to a mutually acceptable independent certified public accountant, who shall work in good faith with Lessor and Lessee to resolve the discrepancy. The fees and costs of such independent accountant to which such dispute is referred shall be borne by the unsuccessful party and shall be shared pro rata to the extent each party is unsuccessful as determined by such independent certified public account, whose decision shall be final and binding.

5. Letter of Credit .

(a) Deposit of Letter of Credit Security . Lessee shall deposit with Lessor within five (5) days of mutual execution of the Lease an unconditional, irrevocable letter of credit (“ Letter of Credit ”) in favor of Lessor, as beneficiary, in the amount of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the “ Letter of Credit Security ”). The Letter of Credit Security shall: (i) be issued by a commercial bank (the “ Issuer ”); (ii) be a standby, at-sight, irrevocable letter of credit; (iii) be payable to Lessor and/or its designee; and (iv) permit multiple, partial draws. Lessee shall pay all costs, expenses, points and/or fees incurred by Lessee in obtaining the Letter of Credit Security.

(b) Lessor’s Right to Draw on Letter of Credit Security . The Letter of Credit Security shall be held by Lessor as security for the faithful performance by Lessee of all of the terms, covenants, and conditions the Lease applicable to Lessee. Lessor shall have the immediate right to draw upon the Letter of Credit Security, in whole or in part and without prior notice to Lessee, other than as required under the Lease, at any time and from time to time: (i) if a Breach occurs under the Lease, or (ii) Lessee either files a voluntary bankruptcy petition or an involuntary bankruptcy petition is filed against Lessee by an entity or entities other than Lessor, under 11 U.S.C. §101 et seq., or Lessee executes an assignment for the benefit of creditors. No condition or term of this Lease shall be deemed to render the Letter of Credit Security conditional, thereby justifying the Issuer of the Letter of Credit Security in failing to honor a drawing upon such Letter of Credit Security in a timely manner. The Letter of Credit Security and its proceeds shall constitute Lessor’s sole and separate property (and not Lessee’s property or, in the event of a bankruptcy filing by or against Lessee, property of Lessee’s bankruptcy estate) and Lessor may immediately upon any draw (and without notice to Lessee) apply or offset the proceeds of the Letter of Credit Security against: (A) any amounts payable by Lessee under the Lease that are not paid when due, after the expiration of any applicable notice and cure period; (B) all losses and damages that Lessor has suffered or may reasonably estimate that it may suffer as a result of any default (after the expiration of any applicable notice and cure period, unless Lessor is stayed by operation of law from giving such notice and cure period) by Lessee under this Lease, including any damages arising under Section 1951.2 of the California Civil Code for rent due following termination of this Lease; (C) any costs incurred by Lessor in connection with Lessee’s default (after expiration of any applicable notice and cure period, unless Lessor is

 

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stayed by operation of law from giving such notice and cure period) under this Lease (including reasonable attorney’s fees); and (D) any other amount that Lessor may spend or become obligated to spend by reason of Lessee’s default under this Lease but in no event in excess of amounts to which the Lessor would be entitled under the law. If any portion of the Letter of Credit Security is so drawn upon or applied, Lessee shall, within five (5) business days after written demand therefore, deposit cash with Issuer in an amount sufficient to restore the Letter of Credit Security to its original amount. It is expressly understood that Lessor shall be relying on Issuer rather than Lessee for the timely payment of proceeds under the Letter of Credit Security and the rights of Lessor pursuant to this Section are in addition to any rights which Lessor may have against Lessee pursuant to Paragraph 13 of the Lease. Lessor shall not be required to keep the proceeds from the Letter of Credit Security separate from Lessor’s general funds or be deemed a trustee of same.

(c) Replacement Letter of Credit Security . If, for any reason whatsoever, the Letter of Credit Security becomes subject to cancellation or expiration during the Lease Term, within forty-five (45) days prior to expiration of the Letter of Credit Security, Lessee shall cause the Issuer or another bank satisfying the conditions of Paragraph 5(a) above to issue and deliver to Lessor a Letter of Credit Security to replace the expiring Letter of Credit Security (the “ Replacement Letter of Credit Security ”).

(d) Transfer of Beneficiary . During the Lease Term, Lessor may request a change to the beneficiary under the Letter of Credit Security to the successor of Lessor (the “ Transferee ”). Lessee agrees to cooperate and to cause Issuer, at Lessor’s cost, to timely issue a new Letter of Credit Security on the same terms and conditions as the original Letter of Credit Security, except that the new Letter of Credit Security shall be payable to the Transferee. Lessor shall surrender the existing Letter of Credit Security to Lessee simultaneously with Lessee’s delivery of the new Letter of Credit Security to Transferee.

(e) Return of the Letter of Credit Security . The Letter of Credit Security or any balance thereof shall be returned (without interest) to Lessee (or, at Lessee’s option, to the last assignee of Lessee’s interests hereunder) within thirty (30) days after the expiration or earlier termination of the Lease and after Lessee has vacated the Premises and surrendered possession. Lessor agrees it will cooperate in providing Issuer with a letter of cancellation or such other reasonable documentation as Issuer requests to effect the return and extinguishment of the credit issued under the Letter of Credit Security.

6. Hazardous Substances . Notwithstanding anything in the Lease to the contrary, in particular Paragraph 6.2 thereof, the parties agree as follows:

(a) The term “Reportable Use” shall not include the use by Lessee of any Hazardous Substance in the ordinary course of Lessee’s business so long as such Hazardous Substances are at all times, used, handled, stored, transported and deposited in accordance with all Applicable Requirements.

(b) Lessor agrees to release Lessee from any and all claims, damages, fines, judgments, penalties, costs, liabilities, or losses (including, without limitation, any and all sums paid for settlement of claims, attorneys’ fees, consultant and expert fees) arising during or after

 

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the Lease Term from or in connection with the presence or suspected presence of Hazardous Substances or environmental damage in or on the Premises unless the Hazardous Substances are present as a result of the acts of Lessee, Lessee’s agents, employees, contractors, or invitees (the “ Lessee Parties ”). Without limitation of the foregoing this release shall include any and all costs incurred due to any investigation of the site or any cleanup, removal, or restoration mandated by a federal, state, or local agency or political subdivision, and shall specifically include any and all costs due to Hazardous Substances that flow, leach, diffuse, migrate, or percolate into, onto, or under the Premises after the Term commences. The provisions of this paragraph will survive the expiration or earlier termination of this Lease.

7. Alterations . Notwithstanding anything to the contrary contained in the Lease, including, without limitation, Paragraph 7.4(b) thereof, Lessee shall not be required to remove any Lessee Owned Alterations and/or Utility Installations unless the same were installed by Lessee during the Term and Lessor notifies Lessee that it will require removal of the same at the time Lessor consents to the same or within ten (10) days after Lessee’s notice thereof to Lessor for Lessee Owned Alterations and/or Utility Installations not requiring Lessor’s consent. Notwithstanding the foregoing or anything to the contrary in the Lease, Lessee shall not be obligated to remove any Improvements (as defined in the Work Letter).

8. Indemnity and Release .

(a) Lessee’s Indemnity . Notwithstanding anything to the contrary contained in the Base Lease (including, without limitation, Paragraph 8.7 thereof), Lessee shall not be required to indemnify Lessor for any claims, damages, loss, expense, etc., arising as a result of the gross negligence or willful misconduct of Lessor or its employees, agents or contractors, or Lessor’s failure to perform its Lease obligations.

(b) Lessor’s Indemnity . Except to the extent due to the negligence or willful misconduct of Lessee or its employees, agents or contractors, or Lessee’s failure to perform its obligations hereunder, Lessor agrees to protect, defend, indemnify, and hold Lessee harmless from and against any and all liabilities, claims, expenses, losses and damages (including reasonable attorney fees and costs), arising as a result of the negligent acts or omissions of Lessor or its employees, agents or contractors in on or about the Premises, or Lessor’s failure to perform its Lease obligations. The provisions of this paragraph will survive the expiration or earlier termination of this Lease.

9. Casualty . If Lessor delivers notice to Lessee that a casualty is not a Premises Total Destruction, then regardless of whether such casualty results in an Insured Loss, if the damage caused by such casualty is not fully repaired and full use of the Premises restored to Lessee within ninety (90) days of the date of the casualty, then Lessee may elect to terminate this Lease with written notice to Lessor at any time thereafter prior to the completion of such repairs and such restoration to Lessee.

10. Real Property Taxes and Exclusions . The term “Real Property Taxes” shall not include, and Lessee shall not be responsible for any (i) estate, inheritance, income or documentary transfer taxes, or (ii) any tax penalties assessed due to any action or inaction by Lessor or its employees, agents or contractors.

 

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11. Permitted Transfers . Notwithstanding anything to the contrary in this Lease, Lessee shall have the right, without Lessor’s consent, to assign this Lease or sublet all of the Premises to (i) any person or entity who controls, is controlled by, or is under common control with the Lessee, (ii) any successor to Lessee by merger, stock purchase, consolidation or other operation of law, (iii) any entity acquiring all or substantially all of the assets of Lessee, or (iv) any person purchasing the business which Lessee conducts at the Premises (each such transfer is referred to herein as a “ Permitted Transfer ”, and the successor entity a “ Permitted Transferee ”). Lessee shall endeavor to provide Lessor with written notice of any Permitted Transfer within ten (10) days prior to the effective date thereof, together with copies of all documents evidencing such transfer, including without limitation all formation documents of the Permitted Transferee and any other documents reasonably requested by Lessor. Notwithstanding anything to the contrary contained in the Lease (including, without limitation, Paragraph 39 and the Option to Extend – Standard Lease Addendum), Lessee shall have the right to transfer to any Permitted Transferee all renewal options and other preferential rights set forth in this Lease.

12. Interruption in Use . Notwithstanding any other provision of this Lease, if the Premises (or any material portion thereof) shall be rendered untenantable or unfit for Lessee’s customary business operations as a result of (i) any defect in the Building or Project or (ii) any interruptions in utilities or services provided to the Premises caused by the gross negligence or intentional acts of Lessor or its agents, employees or contractors, where such untenantability or unfitness shall continue for a period of five (5) consecutive business days, all base rent and additional rent shall abate for the period thereafter that the Premises remain untenantable or unfit for Lessee’s use in a customary manner (or, in the event that only a portion of the Premises are rendered untenantable or unfit for Lessee’s use in a customary manner, base rent and additional rent shall abate for such period with respect to the portion of the Premises that are rendered untenantable or unfit).

13. Notices . Copies of any notices to Lessee under the Lease shall be simultaneously sent to the address below:

J.A. Cosmetics US, Inc.

10 West 33rd Street, Suite 802

New York, New York 10001

Attn: General Counsel

14. Right of First Refusal . Lessor hereby grants to Lessee an ongoing right of first refusal (the “ First Refusal Right ”) with respect to any space within the Building located on the 2nd floor (the “ First Refusal Space ”). Lessee’s right of first refusal shall be on the terms and conditions set forth in this Paragraph 14. If at any time during the Term, Lessor receives a good faith written offer (the “ Good Faith Offer ”) to lease any portion of the First Refusal Space which Lessor desires to accept, then, subject to the remainder of this Paragraph 14, Lessor shall deliver to Lessee a written notice (the “ First Refusal Notice ”) setting forth the terms of such Good Faith Offer and providing Lessee with the right to exercise its First Refusal Right as set forth herein. The First Refusal Notice shall describe the space so offered to Lessee and shall set forth the “ First Refusal Rent ,” as that term is defined below, and the other economic terms upon which Lessor is willing to lease such space to Lessee (collectively, the “ Economic Terms ”), which Economic Terms shall be consistent with the terms of the Good Faith Offer. If Lessee wishes to exercise its First Refusal Right, then within five (5) business days of delivery of the First Refusal

 

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Notice to Lessee (the “ Exercise Period ”), Lessee shall deliver notice to Lessor of Lessee’s exercise of its First Refusal Right with respect to all of the space described in the First Refusal Notice on the terms contained in such First Refusal Notice. If Lessee does not notify Lessor prior to the expiration of the Exercise Period, then Lessor shall be free to lease all or any part of the First Refusal Space describe in the First Refusal Notice to anyone to whom Lessor desires on any terms that Lessor desires; provided, that if Lessor subsequently desires to lease such space on terms which materially differ from the Terms offered to Lessee, Lessor shall provide an additional First Refusal Notice with respect to such materially different Terms in accordance with the terms of this Paragraph 14 and Lessee shall have the right to exercise its First Refusal Right with respect to such additional First Refusal Notice as provided herein. The Rent payable by Lessee for the First Refusal Space (the “ First Refusal Rent ”) shall be equal to the Economic Terms set forth in the First Refusal Notice. In the event that Lessee exercises its First Refusal Right as provided herein, the term of the First Refusal Space shall commence as provided in the Good Faith Offer (the “ First Refusal Commencement Date ”) and terminate on the date set forth in the Good Faith Offer (the “ First Refusal Term ”) and shall otherwise be subject to the Economic Terms set forth in the Good Faith Offer. Lessee shall not have the right to lease First Refusal Space, as provided in this Paragraph 14, if, as of the date of the attempted exercise of any First Refusal Right by Lessee, or, at Lessor’s option, as of the scheduled date of delivery of such First Refusal Space to Lessee, an uncured Default by Lessee exists under the Lease.

15. Utilities and Services . Lessee shall be responsible for janitorial services within the premises and payment directly to the applicable services providers for all separately metered utilities serving the Premises (including, without limitation, gas and electric).

16. Financial Statements . Notwithstanding anything to the contrary contained elsewhere in the Lease, within fifteen (15) days from Lessor’s written request therefore, which request shall not be given more than one (1) time during any twelve (12) month period, Lessee shall provide Lessor with copies of its most recent set of financial statements (to the extent available).

17. Work Letter . The Lease shall include that certain Work Letter attached hereto as Exhibit A.

18. Confidentiality . Lessee and Lessor shall at all times keep any documents and information received from each other confidential, including, without limitation, any financial statements delivered pursuant to Section 16 above, except to the extent necessary to (a) comply with applicable law and regulations or court order or (b) carry out the obligations set forth in this Lease. Any such disclosure to third parties shall indicate that the information is confidential and should be so treated by the third party.

19. Additional Changes to the Base Lease : The parties agree that the Base Lease is further modified as set forth below:

(a) Paragraph 2.9 . In the second sentence, “ best efforts ” is deleted and replaced with “ commercially reasonable efforts ”.

 

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(b) Paragraph 4.2(f) . In the second sentence of this paragraph, the phrase “ written request (but not more than once each year) ” is hereby deleted and replaced with “ the end of each calendar year ”.

(c) Paragraph 4.3 . The second sentence of this paragraph is hereby deleted.

(d) Paragraph 6.2(c), 6.2(d), and 7.4(c) . Where it occurs in such paragraphs, the phrase “ or any third party ” is deleted and replaced with “ or any Lessee Parties ”.

(e) Paragraph 7.3(b) . In the first sentence, the phrase “ and the cumulative cost thereof during this Lease as extended does not exceed $2000 ” is deleted and replaced with “ and the cost thereof does not exceed $20,000 per any given project and $75,000 on a cumulative bases for all projects during the term of the Lease, as it may be extended ”. Furthermore, the last sentence of this paragraph is hereby deleted.

(f) Paragraph 8.2(a) . The phrase “ $2,000,000.00 per occurrence ” in the second sentence of this paragraph is replaced with the phrase “ $5,000,000.00 per occurrence ”. The phrase “ $3,000,000.00 ” in the second sentence of this paragraph is replaced with the phrase “ $5,000,000.00 ”. The phrase “ which amounts may be satisfied in part through an umbrella policy of insurance ” is added to the end of the second sentence of this paragraph.

(g) Paragraph 8.4(a) . The phrase “ a deductible not to exceed $1000 per occurrence ” is deleted and replaced with “ a deductible not to exceed $15,000 per occurrence ”.

(h) Paragraph 8.9 . This entire paragraph is deleted and replaced with the following: Failure to Provide Insurance. In the event that Lessee does not maintain the required insurance and/or does not provide Lessor with the required certificates evidencing the existence of the required insurance, then, subject to any applicable notice and cure period provided in Section 13.1 of the Lease, Lessor may, but shall not be obligated to, obtain the minimum insurance required to be carried by Lessee under the Lease and Lessee shall, within ten (10) days of receipt of a reasonably detailed invoice therefor, reimburse Lessor for the actual premiums paid by Lessor for such insurance.

(i) Paragraph 9.2 . At the end of the first sentence, the phrase “ provided, however, that Lessee shall... for that purpose ” is deleted.

(j) Paragraph 9.5 . In the first sentence, the phrase “ Lessor may terminate ” is deleted and replaced with “ Lessor and Lessee may terminate ” and the contemplated notice shall be delivered to the Lessor or Lessee, as applicable.

(k) Paragraph 9.6(a) . At the end of the first sentence, the phrase “ but not to exceed the proceeds received from the Rental Value Insurance ” is deleted.

(l) Paragraphs 12.1(b) and 12.1(c) . These paragraphs are deleted.

(m) Paragraph 12.3(e) . This entire paragraph is deleted.

 

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(n) Paragraph 13.3 . The phrase “ Upon Breach of this Lease by Lessee ” in the second sentence of this paragraph is hereby deleted and replaced with the phrase “ Upon termination of this Lease as a result of a Breach by Lessee hereunder ”.

(o) Paragraph 13.4 . In the third sentence of this paragraph, the phrase “ 10% ” is deleted and replaced with “5%”.

(p) Paragraph 15.2 . This entire paragraph is deleted.

(q) Paragraph 16(b) . The third, fourth, fifth and sixth sentences in this paragraph are deleted and replaced with the following: “ Should the Lessee fail to execute and/or deliver a requested Estoppel Certificate within such ten (10)-day period, then for each day after such ten (10)-day period during which such failure continues, Lessee shall pay to Lessor a per diem penalty of $100.

(r) Paragraph 16(c) . This entire paragraph is deleted.

(s) Paragraph 25 . This entire paragraph is deleted.

(t) Paragraph 36 . The phrase “ provided such amounts shall not exceed $1,500 per request without the prior written consent of Lessee ” is added to the end of the second sentence.

(u) Paragraph 41(b) . This entire paragraph is deleted.

(v) Paragraph 50 . The following is added to the last sentence of this paragraph: “ provided, however, that if any capital repair or replacement of such HVAC units is required, Lessor shall perform such replacement and Lessee shall reimburse Lessor, on a monthly basis as Additional Rent, for the monthly amortization of any such capital repair or replacement, which cost shall be amortized pursuant to one of the following methods, as chosen by Lessor at Lessor’s elect, (i) on a straight line basis over the useful life thereof in accordance with generally accepted accounting principals consistently applied or (ii) in accordance with the amortization method set forth in Paragraph 2.3(b). As used herein, a “capital repair” is a repair that costs in excess of 40% of the replacement cost of such item .”

(w) Paragraphs 49 and 51 . These paragraphs are deleted.

Remainder of page intentionally left blank.

Signatures on following page.

 

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IN WITNESS WHEREOF, the parties have this Addendum on the respective dates set forth below.

 

LESSOR:
1007 Clay Street Properties LLC,
a California limited liability company
By:  

/s/ B. Reid Settlemier

Name:   B. Reid Settlemier
Its:   Managing Member
Date:  

3-31-14

LESSEE:
J.A. Cosmetics US, Inc.,
a Delaware corporation
By:  

/s/ Tarang P. Amin

Name:   Tarang P. Amin
Its:   President & CEO
Date:  

March 30, 2014

 

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Exhibit 10.3

 

LOGO

STANDARD MULTI-TENANT OFFICE LEASE - GROSS

AIR COMMERCIAL REAL ESTATE ASSOCIATION

 

1.

Basic Provisions (“Basic Provisions”).

1.1         Parties : This Lease ( “Lease” ), dated for reference purposes only October 5, 2015                                                                                          ,

is made by and between 1007 Clay Street Properties LLC                                                                                                                                                         

                                                                                                                                                                                                                             ( “Lessor” )

 

 

and J.A. Cosmetics US, Inc. a Delaware corporation                                                                                                                                                                     

 

 

                                                                                                                                                                                                                              ( “Lessee” ),

(collectively the “ Parties ”, or individually a “ Party ”).

1.2(a)          Premises: That certain portion of the Project (as defined below), known as Suite Numbers(s) 202                                          , on the second floor(s), consisting of approximately ±2,878                          rentable square feet and approximately ±2,247                                   useable square feet (“Premises”) . The Premises are located at: 570 l0th Street                                                       , in the City of Oakland                               , County of Alameda                                      , State of California                                           , with zip code 94607                      . In addition to Lessee’s rights to use and occupy the Premises as hereinafter specified, Lessee shall have non-exclusive rights to the Common Areas (as defined in Paragraph 2.7 below) as hereinafter specified, but shall not have any rights to the roof, the exterior walls, the area above the dropped ceilings, or the utility raceways of the building containing the Premises (“ Building ”) or to any other buildings in the Project. The Premises, the Building, the Common Areas, the land upon which they are located, along with all other buildings and improvements thereon, are herein collectively referred to as the “ Project .” The Project consists of approximately ±26,181                                   rentable square feet. (See also Paragraph 2)

1.2(b) Parking:                                  unreserved and                              reserved vehicle parking spaces at a monthly cost of $                              per unreserved space and$                          per reserved space. (See Paragraph 2.6)

1.3          T erm: five (5)                                                                       years and two (2)                                                   months (“ Original Term ”) commencing November 1, 2015 (“ Commencement Date ”) and ending five (5) years and two(2) months later on December 31, 2020                      (“ Expiration Date ”). (See also Paragraph 3)

1.4          Early Possession: If the Premises are available Lessee may have non-exclusive possession of the Premises commencing fourteen (14) days prior to the Lease Commencement                                       (“ Early Possession Date ”). (See also Paragraphs 3.2 and 3.3)

1.5          Base Rent: $8,921.80          per month (“ Base Rent )”, payable on the first (1st)                          day of each month commencing January 1, 2016                          . (See also Paragraph 4)

þ          If this box Is checked, there are provisions in this Lease for the Base Rent to be adjusted. See Paragraph 2 in Addendum to Standard Multi-Tenant Office Lease-Gross                                          

1.6         Lessee’s Share of Operating Expense Increase: Eleven (11)                                   percent ( 11 %) (“ Lessee’s Share ”). In the event that that size of the Premises and/or the Project are modified during the term of this Lease, Lessor shall recalculate Lessee’s Share to reflect such modification.

1.7          Base Rent and Other Monies Paid Upon Execution:

  (a) Base Rent: $8,921.80              for the period January 1, 2016 - January 29, 2016                                                                                                .
  (b) Security Deposit: $10,342.81                          ( “Security Deposit” ). (See also Paragraph 5)
  (c) Parking: $N/A                                       for the period N/A                                                                                                                                 .
  (d) Other: $N/A                                               for                                                                                                                                                    .
  (e) Total Due Upon Execution of this Lease: $19,264.61                                                                                                                                 .

1.8          Agreed Use: General office administrative use .                                                                                                                                                     

 

 

                                                                                                                                                                                                           (See also Paragraph 6)

1.9          Base Year; Insuring Party . The Base Year is 2015              . Lessor is the “Insuring Party” . (See also Paragraphs 4.2 and 8)

1.10          Real Estate Brokers: (See also Paragraph 15 and 25)

                (a) Representation: The following real estate brokers (the “ Brokers ”) and brokerage relationships exist In this transaction (check applicable boxes):

¨                                                                                                                                                          represents Lessor exclusively (“ Lessor’s Broker ”);

¨                                                                                                                                                      represents Lessee exclusively (“ Lessee’s Broker ”); or

þ Colliers International                                                                                                                          represents both Lessor and Lessee (“ Dual Agency ”).

                (b) Payment to Brokers: Upon execution and delivery of this Lease by both Parties, Lessor shall pay to the Brokers the brokerage fee agreed to in a separate written agreement (or if there is no such agreement, the sum of or% of the total Base Rent) for the brokerage services rendered by the Brokers.

1.11         Guarantor. The obligations of the Lessee under this Lease shall be guaranteed by                                                                                       

                                                                                                                                                                                (“Guarantor”) . (See also Paragraph 37)

1.12         Business Hours for the Building: 7:00          a.m. to 6:00          p.m., Mondays through Fridays (except Building Holidays) and                  a.m. to                          p.m. on Saturdays (except Building Holidays), “Building Holidays” shall mean the dates of observation of New Year’s Day, President’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day, and N/A                          .

 

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Lesser shall have the right to use the Premises 24 hour a day, subject to the requirements of Paragraph 11.4,

1.13          Lessor Supplied Services . Notwithstanding the provisions of Paragraph 11.1, Lessor is NOT obligated to provide the following within the Premises:

þ Janitorial services

þ Electricity

þ Other (specify): Gas and water                                                                                                                                    

1.14         Attachments . Attached hereto are the following, all of which constitute a part of this Lease:

þ an Addendum consisting of Paragraphs 52          through 53          ;

þ a plot plan depicting the Premises;

þ a current set of the Rules and Regulations;

þ a Work Letter;

þ a janitorial schedule;

þ other (specify): Additional Addendum “Addendum to Standard Multi-Tenant Office Lease—Gross” Paragraphs 1-20                                                                                                                                                            .

 

2.

Premises.

2.1         Letting . Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Premises, for the term, at the rental, and upon all of the terms, covenants and conditions set forth in this Lease. While the approximate square footage of the Premises may have been used in the marketing of the Premises for purposes of comparison, the Base Rent stated herein is NOT tied to square footage and is not subject to adjustment should the actual size be determined to be different. Note: Lessee is advised to verify the actual size prior to executing this Lease.

2.2          Condition . Lessor shall deliver the Premises to Lessee in a clean condition on the Commencement Date or the Early Possession Date, whichever first occurs (“ Start Date ”), and warrants that the existing electrical, plumbing, fire sprinkler, lighting, heating, ventilating and air conditioning systems (“ HVAC ”), and all other items which the Lessor is obligated to construct pursuant to the Work Letter attached hereto, if any, other than those constructed by Lessee, shall be in good operating condition on said date, that the structural elements of the roof, bearing walls and foundation of the Unit shall be free of material defects, and that the Premises do not contain hazardous levels of any mold or fungi defined as toxic under applicable state or federal law. Lessor also warrants, that unless otherwise specified In writing, Lessor is unaware of (i) any recorded Notices of Default affecting the Premise; (ii) any delinquent amounts due under any loan secured by the Premises; and (iii) any bankruptcy proceeding affecting the Premises.

2.3          Compliance . Lessor warrants that to the best of its knowledge the improvements on the Premises and the Common Areas comply with the building codes applicable laws, covenants or restrictions of record, regulations, and ordinances (“ Applicable Requirements ”) that were in effect at the time that each improvement, or portion thereof, was constructed. Said warranty does not apply to the use to which Lessee will put the Premises, modifications which may be required by the Americans with Disabilities Act or any similar laws as a result of Lessee’s use (see Paragraph 49), or to any Alterations or Utility Installations (as defined in Paragraph 7.3(a)) made or to be made by Lessee. NOTE: Lessee is responsible for determining whether or not the zoning and other Applicable Requirements are appropriate for Lessee’s intended use, and acknowledges that past uses of the Premises may no longer be allowed . If the Premises do not comply with said warranty, Lessor shall, except as otherwise provided, promptly after receipt of written notice from Lessee setting forth with specificity the nature and extent of such non-compliance, rectify the same. If the Applicable Requirements are hereafter changed so as to require during the term of this Lease the construction of an addition to or an alteration of the Premises, the remediation of any Hazardous Substance, or the reinforcement or other physical modification of the Premises (“ Capital Expenditure ”), Lessor and Lessee shall allocate the cost of such work as follows:

                (a) Subject to Paragraph 2.3(c) below, if such Capital Expenditures are required as a result of the specific and unique use of the Premises by Lessee as compared with uses by tenants in general, Lessee shall be fully responsible for the cost thereof, provided, however that if such Capital Expenditure is required during the last 2 years of this Lease and the cost thereof exceeds 6 months’ Base Rent, Lessee may instead terminate this Lease unless Lessor notifies Lessee, in writing, within 10 days after receipt of Lessee’s termination notice that Lessor has elected to pay the difference between the actual cost thereof and the amount equal to 6 months’ Base Rent. If Lessee elects termination, Lessee shall immediately cease the use of the Premises which requires such Capital Expenditure and deliver to Lessor written notice specifying a termination date at least 90 days thereafter. Such termination date shall, however, in no event be earlier than the last day that Lessee could legally utilize the Premises without commencing such Capital Expenditure.

                (b) If such Capital Expenditure is not the result of the specific and unique use of the Premises by Lessee (such as, governmentally mandated seismic modifications), then Lessor shall pay for such Capital Expenditure and Lessee shall only be obligated to pay, each month during the remainder of the term of this Lease or any extension thereof, on the date that on which the Base Rent is due, an amount equal to 1/144th of the portion of such costs reasonably attributable to the Premises. Lessee shall pay Interest on the balance but may prepay its obligation at any time. If, however, such Capital Expenditure is required during the last 2 years of this Lease or if Lessor reasonably determines that it is not economically feasible to pay its share thereof, Lessor shall have the option to terminate this Lease upon 90 days prior written notice to Lessee unless Lessee notifies Lessor, in writing, within 10 days after receipt of Lessor’s termination notice that Lessee will pay for such Capital Expenditure. If Lessor does not elect to terminate, and fails to tender its share of any such Capital Expenditure, Lessee may advance such funds and deduct same, with Interest, from Rent until Lessor’s share of such costs have been fully paid. If Lessee is unable to finance Lessor’s share, or if the balance of the Rent due and payable for the remainder of this Lease is not sufficient to fully reimburse Lessee on an offset basis, Lessee shall have the right to terminate this Lease upon 30 days written notice to Lessor.

                (c) Notwithstanding the above, the provisions concerning Capital Expenditures are intended to apply only to nonvoluntary, unexpected, and new Applicable Requirements. If the Capital Expenditures are instead triggered by Lessee as a result of an actual or proposed change in use, change in intensity of use, or modification to the Premises then, and in that event, Lessee shall either: (i) immediately cease such changed use or intensity of use and/or take such other steps as may be necessary to eliminate the requirement for such Capital Expenditure, or (ii) complete such Capital Expenditure at its own expense. Lessee shall not have any right to terminate this Lease.

2.4          Acknowledgements . Lessee acknowledges that: (a) it has been given an opportunity to inspect and measure the Premises, (b) Lessee has been advised by Lessor and/or Brokers to satisfy itself with respect to the size and condition of the Premises (including but not limited to the electrical, HVAC and fire sprinkler systems, security, environmental aspects, and compliance with Applicable Requirements), and their suitability for Lessee’s intended use, (c) Lessee has made such investigation as it deems necessary with reference to such matters and assumes all responsibility therefor as the same relate to its occupancy of the Premises, (d) it is not relying on any representation as to the size of the Premises made by Brokers or Lessor, (e) the square footage of the Premises was not material to Lessee’s decision to lease the Premises and pay the Rent stated herein, and (f) neither Lessor, Lessor’s agents, nor Brokers have made any oral or written representations or warranties with respect to said matters other than as set forth in this Lease. In addition, Lessor acknowledges that: (i) Brokers have made no representations, promises or warranties concerning Lessee’s ability to honor the Lease or suitability to occupy the Premises, and (ii) It is Lessor’s sole responsibility to investigate the financial capability and/or suitability of all proposed tenants.

2.5          Lessee as Prior Owner/Occupant . The warranties made by Lessor in Paragraph 2 shall be of no force or effect if immediately prior to the Start Date, Lessee was the owner or occupant of the Premises. In such event, Lessee shall be responsible for any necessary corrective work.

2.6          Vehicle Parking . So long as Lessee is not in default, and subject to the Rules and Regulations attached hereto, and as established by Lessor from time to time, Lessee shall be entitled to rent and use the number of parking spaces specified in Paragraph 1.2(b) at the rental rate applicable from time to time for monthly parking as set by Lessor and/or its licensee.

                         (a) If Lessee commits, permits or allows any of the prohibited activities described in the Lease or the rules then in effect then Lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove or tow away the vehicle involved and charge the cost to Lessee, which coot shall be immediately payable upon demand by Lessor.

                         (b) The monthly rent per parking space specified in Paragraph 1.2(b) is subject to change upon 30 days prior written notice to Lessee. The rent for the parking is payable one month in advance prior to the first day of each calendar month.

2.7          Common Areas - Definition . The term “ Common Areas ” is defined as all areas and facilities outside the Premises and within the exterior boundary line of the Project and interior utility raceways and installations within the Premises that are provided and designated by the Lessor from time to time for the general nonexclusive use of Lessor, Lessee and other tenants of the Project and their respective employees, suppliers, shippers, customers, contractors and invitees, including, but not limited to, common entrances, lobbies, corridors, stairwells, public restrooms, elevators, parking areas, loading and unloading areas, trash areas, roadways, walkways, driveways and landscaped areas.

 

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2.8            Common Areas - Lessee’s Rights . Lessor grants to Lessee, for the benefit of Lessee and Its employees, suppliers, shippers, contractors, customers and invitees, during the term of this Lease, the nonexclusive right to use, in common with others entitled to such use, the Common Areas as they exist from time to time, subject to any rights, powers, and privileges reserved by Lessor under the terms hereof or under the terms of any rules and regulations or restrictions governing the use of the Project. Under no circumstances shall the right herein granted to use the Common Areas be deemed to include the right to store any property, temporarily or permanently, in the Common Areas. Any such storage shall be permitted only by the prior written consent of Lessor or Lessor’s designated agent, which consent may be revoked at any time. In the event that any unauthorized storage shall occur then Lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lessor.

2.9            Common Areas - Rules and Regulations . Lessor or such other person(s) as Lessor may appoint shall have the exclusive control and management of the Common Areas and shall have the right, from time to time, to adopt, modify, amend and enforce reasonable rules and regulations (“ Rules and Regulations ”) for the management, safety, care, and cleanliness of the common areas , including grounds, the parking and unloading of vehicles and the preservation of good order, as well as for the convenience of other occupants or tenants of the Building and the Project and their invitees. The Lessee agrees to abide by and conform to all such Rules and Regulations, and shall use its best efforts to cause its employees, suppliers, shippers, customers, contractors and invitees to so abide and conform. Lessor shall not be responsible to Lessee for the noncompliance with said Rules and Regulations by other tenants of the Project.

2.10          Common Areas - Changes . Lessor shall have the right, in Lessor’s sole discretion, from time to time:

                (a)         To make changes to the Common Areas, including, without limitation, changes in the location, size, shape and number of the lobbies, windows, stairways, air shafts, elevators, escalators, restrooms, driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas, walkways and utility raceways;

                (b)         To close temporarily any of the Common Areas for maintenance purposes so long as reasonable access to the Premises remains available;

                (c)         To designate other land outside the boundaries of the Project to be a part of the Common Areas;

                (d)         To add additional buildings and improvements to the Common Areas;

                (e)         To use the Common Areas while engaged in making additional improvements, repairs or alterations to the Project, or any portion thereof; and

                (f)         To do and perform such other acts and make such other changes in, to or with respect to the Common Areas and Project as Lessor may, in the exercise of sound business judgment, deem to be appropriate.

3.

Term.

3.1          Term . The Commencement Date, Expiration Date and Original Term of this Lease are as specified in Paragraph 1.3.

3.2          Early Possession . Any provision herein granting Lessee Early Possession of the Premises is subject to and conditioned upon the Premises being available for such possession prior to the Commencement Date. Any grant of Early Possession only conveys a non-exclusive right to occupy the Premises. If Lessee totally or partially occupies the Premises prior to the Commencement Date, the obligation to pay Base Rent shall be abated for the period of such Early Possession. All other terms of this Lease (including but not limited to the obligations to pay Lessee’s Share of the Operating Expense Increase) shall be In effect during such period. Any such Early Possession shall not affect the Expiration Date.

3.3          Delay In Possession . Lessor agrees to use its best commercially reasonable effects to deliver possession of the Premises to Lessee by the Commencement Date. If, despite said efforts, Lesser is unable to deliver possession by such date, Lesser shall not be subject to any liability therefor, nor shall such failure affect the validity of this Lease or change the Expiration Date. Lessee shall not, however, be obligated to pay Rent or perform Its other obligations until Lesser delivers possession of the Premises and any period of rent abatement that Lessee would otherwise have enjoyed shall run from the date of delivery of possession and continue for a period equal to what Lessee would otherwise have enjoyed under the terms hereof, but minus any days of delay caused by the acts or emissions of Lessee. If possession is not delivered within 60 days after the Commencement Date, as the same may bo extended under the terms of any Work Letter executed by Parties, Lessee may, at its option, by notice in writing within 10 days after the and of such 60 day period, cancel this Lease, in which event the Parties shall be discharged from all obligations hereunder. If ouch written notice is not received by Lesser within said 10 day period, Lessee’s right to cancel shall terminate. If possession of the Premises is not delivered within 120 days after the Commencement Date, this Lease shall terminate) unless other agreements are reached between Lesser and Lessee, in writing,

3.4          Lessee Compliance . Lessor shall not be required to deliver possession of the Premises to Lessee until Lessee complies with its obligation to provide evidence of insurance (Paragraph 8.5). Pending delivery of such evidence, Lessee shall be required to perform all of its obligations under this Lease from and after the Start Date, including the payment of Rent, notwithstanding Lessor’s election to withhold possession pending receipt of such evidence of insurance. Further, if Lessee is required to perform any other conditions prior to or concurrent with the Start Date, the Start Date shall occur but Lessor may elect to withhold possession until such conditions are satisfied.

4.

Rent.

4.1.          Rent Defined . All monetary obligations of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are deemed to be rent (“ Rent ”).

4.2          Operating Expense Increase . Lessee shall pay to Lessor during the term hereof, in addition to the Base Rent, Lessee’s Share of the amount by which all Operating Expenses for each Comparison Year exceeds the amount of all Operating Expenses for the Base Year, such excess being hereinafter referred to as the “ Operating Expense Increase ”, in accordance with the following provisions:

                (a)          Base Year is as specified in Paragraph 1.9.

                (b)          “Comparison Year is defined as each calendar year during the term of this Lease subsequent to the Base Year; provided, however, Lessee shall have no obligation to pay a share of the Operating Expense Increase applicable to the first 12 months of the Lease Term (other than such as are mandated by a governmental authority, as to which government mandated expenses Lessee shall pay Lessee’s Share, notwithstanding they occur during the first twelve (12) months). Lessee’s Share of the Operating Expense Increase for the first and last Comparison Years of the Lease Term shall be prorated according to that portion of such Comparison Year as to which Lessee is responsible for a share of such increase.

                (c)          The following costs relating to the ownership and operation of the Project, calculated as if the Project was at least 95% occupied, are defined as “Operating Expenses” :

                             (i)         Costs relating to the operation, repair, and maintenance in neat, clean, safe, good order and condition, but not the replacement (see subparagraph (g)), of the following:

                                         (aa)         The Common Areas, including their surfaces, coverings, decorative items, carpets, drapes and window coverings, and including parking areas , loading and unloading areas, trash areas, roadways, sidewalks, walkways, stairways, parkways, driveways, landscaped areas, striping, bumpers, irrigation systems, Common Area lighting facilities, building exteriors and roofs, fences and gates;

                                         (bb)         All heating, air conditioning, plumbing, electrical systems, life safety equipment, communication systems and other equipment used in common by, or for the benefit of, tenants or occupants of the Project, including elevators and escalators, tenant directories, fire detection systems including sprinkler system maintenance and repair.

                                         (cc)         All other areas and improvements that are within the exterior boundaries of the Project but outside of the Premises and/or any other space occupied by a tenant.

                             (ii)         The cost of trash disposal, janitorial and security services, pest control services, and the costs of any environmental inspections;

                             (iii)         The cost of any other service to be provided by Lessor that is elsewhere in this Lease stated to be an “Operating Expense”;

                             (iv)         The cost of the premiums for the insurance policies maintained by Lessor pursuant to paragraph 8 and any deductible portion of an insured loss concerning the Building or the Common Areas;

                             (v)          The amount of the Real Property Taxes payable by Lessor pursuant to paragraph 10;

                             (vi)         The cost of water, sewer, gas, electricity, and other publicly mandated services not separately metered;

                             (vii)         Labor, salaries, and applicable fringe benefits and costs, materials, supplies and tools, used in maintaining and/or cleaning the Project and accounting and management fees attributable to the operation of the Project;

                             (viii)         The cost of any capital improvement to the Building or the Project not covered under the provisions of Paragraph 2.3 provided; however, that Lessor shall allocate the cost of any such capital improvement over a 12 year period and Lessee shall not be required to pay more than Lessee’s Share of 1/144th of the cost of such Capital Expenditure in any given month;

                             (ix)          The cost to replace equipment or improvements that have a useful life for accounting purposes of 5 years or less.

                             (x)          Reserves set aside for maintenance, repair and/or replacement of Common Area improvements and equipment.

                (d)         Any item of Operating Expense that is specifically attributable to the Premises, the Building or to any other building in the Project or to the operation, repair and maintenance thereof, shall be allocated entirely to such Premises, Building, or other building. However, any such item that is not specifically attributable to the Building or to any other building or to the operation, repair and maintenance thereof, shall be equitably allocated by Lessor to all buildings in the Project.

 

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    (e)         The inclusion of the improvements, facilities and services set forth in Subparagraph 4.2(c) shall not be deemed to impose an obligation upon Lessor to either have said improvements or facilities or to provide those services unless the Project already has the same, Lessor already provides the services, or Lessor has agreed elsewhere in this Lease to provide the same or some of them.

    (f)         Lessee’s Share of Operating Expense Increase is payable monthly on the same day as the Base Rent is due hereunder. The amount of such payments shall be based on Lessor’s estimate of the Operating Expense Expenses. Within 60 days after written request (but not more than once each year) Lessor shall deliver to Lessee a reasonably detailed statement showing Lessee’s Share of the actual Common Area Operating Expenses for the preceding year. If Lessee’s payments during such Year exceed Lessee’s Share, Lessee shall credit the amount of such over-payment against Lessee’s future payments. If Lessee’s payments during such Year were less than Lessee’s Share, Lessee shall pay to Lessor the amount of the deficiency within 10 days after delivery by Lessor to Lessee of said statement. Lessor and Lessee shall forthwith adjust between them by cash payment any balance determined to exist with respect to that portion of the last Comparison Year for which Lessee is responsible as to Operating Expense Increases, notwithstanding that the Lease term may have terminated before the end of such Comparison Year.

    (g)         Operating Expenses shall not include the costs of replacement for equipment or capital components such as the roof, foundations, exterior walls or a Common Area capital improvement, such as the parking lot paving, elevators, fences that have a useful life for accounting purposes of 5 years or more.

    (h)         Operating Expenses shall not include any expenses paid by any tenant directly to third parties, or as to which Lessor is otherwise reimbursed by any third party, other tenant, or by insurance proceeds.

4.3        Payment . Lessee shall cause payment of Rent to be received by Lessor in lawful money of the United States on or before the day on which it is due, without offset or deduction (except as specifically permitted in this Lease). All monetary amounts shall be rounded to the nearest whole dollar. In the event that any invoice prepared by Lessor is inaccurate such inaccuracy shall not constitute a waiver and Lessee shall be obligated to pay the amount set forth in this Lease. Rent for any period during the term hereof which is for less than one full calendar month shall be prorated based upon the actual number of days of said month. Payment of Rent shall be made to Lessor at its address stated herein or to such other persons or place as Lessor may from time to time designate in writing. Acceptance of a payment which is less than the amount then due shall not be a waiver of Lessor’s rights to the balance of such Rent, regardless of Lessor’s endorsement of any check so stating. In the event that any check, draft, or other instrument of payment given by Lessee to Lessor is dishonored for any reason, Lessee agrees to pay to Lessor the sum of $25 in addition to any Late Charge and Lessor, at its option, may require all future Rent be paid by cashier’s check. Payments will be applied first to accrued late charges and attorney’s fees, second to accrued interest, then to Base Rent and Common Area Operating Expenses, and any remaining amount to any other outstanding charges or costs.

5.            Security Deposit . Lessee shall deposit with Lessor upon execution hereof the Security Deposit as security for Lessee’s faithful performance of its obligations under this Lease. If Lessee fails to pay Rent, or otherwise Defaults under this Lease, Lessor may use, apply or retain all or any portion of said Security Deposit for the payment of any amount already due Lessor, for Rents which will be due in the future, and/ or to reimburse or compensate Lessor for any liability, expense, loss or damage which Lessor may suffer or incur by reason thereof. If Lessor uses or applies all or any portion of the Security Deposit, Lessee shall within 10 days after written request therefor deposit monies with Lessor sufficient to restore said Security Deposit to the full amount required by this Lease. If the Base Rent increases during the term of this Lease, Lessee shall, upon written request from Lessor, deposit additional monies with Lessor so that the total amount of the Security Deposit shall at all times bear the same proportion to the increased Base Rent as the Initial Security Deposit bore to the initial Base Rent. Should the Agreed Use be amended to accommodate a material change in the business of Lessee or to accommodate a sublessee or assignee, Lessor shall have the right to increase the Security Deposit to the extent necessary, in Lessor’s reasonable judgment, to account for any increased wear and tear that the Premises may suffer as a result thereof. If a change in control of Lessee occurs during this Lease and following such change the financial condition of Lessee is, in Lessor’s reasonable judgment, significantly reduced, Lessee shall deposit such additional monies with Lessor as shall be sufficient to cause the Security Deposit to be at a commercially reasonable level based on such change in financial condition. Lessor shall not be required to keep the Security Deposit separate from its general accounts. Within 90 days after the expiration or termination of this Lease, Lessor shall return that portion of the Security Deposit not used or applied by Lessor. Lessor shall upon written request provide Lessee with an accounting showing how that portion of the Security Deposit that was not returned was applled. No part of the Security Deposit shall be considered to be held in trust, to bear Interest or to be prepayment for any monies to be paid by Lessee under this Lease.

6.              Use .

6.1       Use . Lessee shall use and occupy the Premises only for the Agreed Use, or any other legal use which is reasonably comparable thereto, and for no other purpose. Lessee shall not use or permit the use of the Premises in a manner that is unlawful, creates damage, waste or a nuisance, or that disturbs occupants of or causes damage to neighboring premises or properties. Other than guide, signal and seeing eye dogs, Lessee shall not keep or allow in the Premises any pets, animals, birds, fish, or reptiles. Lessor shall not unreasonably withhold or delay its consent to any written request for a modification of the Agreed Use, so long as the same will not impair the structural integrity of the improvements of the Building, will not adversely affect the mechanical, electrical, HVAC, and other systems of the Building, and/or will not affect the exterior appearance of the Building. If Lessor elects to withhold consent, Lessor shall within 7 days after such request give written notification of same, which notice shall include an explanation of Lessor’s objections to the change in the Agreed Use.

6.2        Hazardous Substances .

     (a) Reportable Uses Require Consent . The term “ Hazardous Substance ” as used in this Lease shall mean any product, substance, or waste whose presence, use, manufacture, disposal, transportation, or release, either by itself or in combination with other materials expected to be on the Premises, is either: (i) potentially injurious to the public health, safety or welfare, the environment or the Premises, (ii) regulated or monitored by any governmental authority, or (iii) a basis for potential liability of Lessor to any governmental agency or third party under any applicable statute or common law theory. Hazardous Substances shall include, but not be limited to, hydrocarbons, petroleum, gasoline, and/or crude oil or any products, byproducts or fractions thereof. Lessee shall not engage in any activity in or on the Premises which constitutes a Reportable Use of Hazardous Substances without the express prior written consent of Lessor and timely compliance (at Lessee’s expense) with all Applicable Requirements. “ Reportable Use ” shall mean (i) the installation or use of any above or below ground storage tank, (ii) the generation, possession, storage, use, transportation, or disposal of a Hazardous Substance that requires a permit from, or with respect to which a report, notice, registration or business plan is required to be filed with, any governmental authority, and/or (iii) the presence at the Premises of a Hazardous Substance with respect to which any Applicable Requirements requires that a notice be given to persons entering or occupying the Premises or neighboring properties. Notwithstanding the foregoing, Lessee may use any ordinary and customary materials reasonably required to be used in the normal course of the Agreed Use such as ordinary office supplies (copier toner, liquid paper, glue, etc.) and common household cleaning materials, so long as such use Is in compliance with all Applicable Requirements, is not a Reportable Use, and does not expose the Premises or neighboring property to any meaningful risk of contamination or damage or expose Lessor to any liability therefor. In addition, Lessor may condition its consent to any Reportable Use upon receiving such additional assurances as Lessor reasonably deems necessary to protect itself, the public, the Premises and/or the environment against damage, contamination, injury and/or liability, including, but not limited to, the installation (and removal on or before Lease expiration or termination) of protective modifications (such as concrete encasements) and/or increasing the Security Deposit.

    (b) Duty to Inform Lessor .  If Lessee knows, or has reasonable cause to believe, that a Hazardous Substance has come to be located in, on, under or about the Premises, other than as previously consented to by Lessor, Lessee shall immediately give written notice of such fact to Lessor, and provide Lessor with a copy of any report, notice, claim or other documentation which it has concerning the presence of such Hazardous Substance.

    (c) Lessee Remediation .  Lessee shall not cause or permit any Hazardous Substance to be spilled or released in, on, under, or about the Premises (including through the plumbing or sanitary sewer system) and shall promptly, at Lessee’s expense, comply with all Applicable Requirements and take all investigatory and/or remedial action reasonably recommended, whether or not formally ordered or required, for the cleanup of any contamination of, and for the maintenance, security and/or monitoring of the Premises or neighboring properties, that was caused or materially contributed to by Lessee, or pertaining to or involving any Hazardous Substance brought onto the Premises during the term of this Lease, by or for Lessee, or any third party.

    (d) Lessee Indemnification .  Lessee shall indemnify, defend and hold Lessor, its agents, employees, lenders and ground lessor, if any, harmless from and against any and all loss of rents and/or damages, liabilities, judgments, claims, expenses, penalties, and attorneys’ and consultants’ fees arising out of or involving any Hazardous Substance brought onto the Premises by or for Lessee, or any third party (provided, however, that Lessee shall have no liability under this Lease with respect to underground migration of any Hazardous Substance under the Premises from areas outside of the Project not caused or contributed to by Lessee). Lessee’s obligations shall include, but not be limited to, the effects of any contamination or Injury to person, property or the environment created or suffered by Lessee, and the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or termination of this Lease. No termination, cancellation or release agreement entered into by Lessor and Lessee shall release Lessee from its obligations under this Lease with respect to Hazardous Substances, unless specifically so agreed by Lessor in writing at the time of such agreement.

 

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      (e)   Lessor Indemnification . Except as otherwise provided in paragraph 8.7, Lessor and its successors and assigns shall Indemnify, defend, reimburse and hold Lessee, its employees and lenders, harmless from and against any and all environmental damages, including the cost of remediation, which result from Hazardous Substances which existed on the Premises prior to Lessee’s occupancy or which are caused by the gross negligence or willful misconduct of Lessor, its agents or employees. Lessor’s obligations, as and when required by the Applicable Requirements, shall include, but not be limited to, the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or termination of this Lease.

      (f)   Investigations and Remediations . Lessor shall retain the responsibility and pay for any investigations or remediation measures required by governmental entities having jurisdiction with respect to the existence of Hazardous Substances on the Premises prior to Lessee’s occupancy, unless such remediation measure is required as a result of Lessee’s use (including “Alterations”, as defined in paragraph 7.3(a) below) of the Premises, in which event Lessee shall be responsible for such payment. Lessee shall cooperate fully in any such activities at the request of Lessor, including allowing Lessor and Lessor’s agents to have reasonable access to the Premises at reasonable times in order to carry out Lessor’s investigative and remedial responsibilities.

      (g)   Lessor Termination Option . If a Hazardous Substance Condition (see Paragraph 9.1(e)) occurs during the term of this Lease, unless Lessee is legally responsible therefor (in which case Lessee shall make the investigation and remediation thereof required by the Applicable Requirements and this Lease shall continue in full force and effect, but subject to Lessor’s rights under Paragraph 6.2(d) and Paragraph 13), Lessor may, at Lessor’s option, either (i) investigate and remediate such Hazardous Substance Condition, if required, as soon as reasonably possible at Lessor’s expense, in which event this Lease shall continue in full force and effect, or (ii) if the estimated cost to remediate such condition exceeds 12 times the then monthly Base Rent or $100,000, whichever is greater, give written notice to Lessee, within 30 days after receipt by Lessor of knowledge of the occurrence of such Hazardous Substance Condition, of Lessor’s desire to terminate this Lease as of the date 60 days following the date of such notice. In the event Lessor elects to give a termination notice, Lessee may, within 10 days thereafter, give written notice to Lessor of Lessee’s commitment to pay the amount by which the cost of the remediation of such Hazardous Substance Condition exceeds an amount equal to 12 times the then monthly Base Rent or $100,000, whichever is greater. Lessee shall provide Lessor with said funds or satisfactory assurance thereof within 30 days following such commitment. In such event, this Lease shall continue in full force and effect, and Lessor shall proceed to make such remediation as soon as reasonably possible after the required funds are available. If Lessee does not give such notice and provide the required funds or assurance thereof within the time provided, this Lease shall terminate as of the date specified in Lessor’s notice of termination.

6.3        Lessee’s Compliance with Applicable Requirements . Except as otherwise provided in this Lease, Lessee shall, at Lessee’s sole expense, fully, diligently and in a timely manner, materially comply with all Applicable Requirements, the requirements of any applicable fire insurance underwriter or rating bureau, and the recommendations of Lessor’s engineers and/or consultants which relate in any manner to the Premises, without regard to whether said Applicable Requirements are now in effect or become effective after the Start Date. Lessee shall, within 10 days after receipt of Lessor’s written request, provide Lessor with copies of all permits and other documents, and other information evidencing Lessee’s compliance with any Applicable Requirements specified by Lessor, and shall immediately upon receipt, notify Lessor in writing (with copies of any documents involved) of any threatened or actual claim, notice, citation, warning, complaint or report pertaining to or involving the failure of Lessee or the Premises to comply with any Applicable Requirements. Likewise, Lessee shall immediately give written notice to Lessor of: (i) any water damage to the Premises and any suspected seepage, pooling, dampness or other condition conducive to the production of mold; or (ii) any mustiness or other odors that might indicate the presence of mold in the Premises.

6.4        Inspection ; Compliance. Lessor and Lessor’s “ Lender ” (as defined in Paragraph 30) and consultants shall have the right to enter into Premises at any time, in the case of an emergency, and otherwise at reasonable times, after reasonable notice, for the purpose of inspecting the condition of the Premises and for verifying compliance by Lessee with this Lease. The cost of any such inspections shall be paid by Lessor, unless a violation of Applicable Requirements, or a Hazardous Substance Condition (see paragraph 9.1e) is found to exist or be imminent, or the inspection is requested or ordered by a governmental authority as a result of Lessee’s use or occupancy of the Premises . In such case, Lessee shall upon request reimburse Lessor for the cost of such inspection, so long as such inspection is reasonably related to the violation or contamination. In addition, Lessee shall provide copies of all relevant material safety data sheets ( MSDS ) to Lessor within 10 days of the receipt of written request therefor.

7.            Maintenance; Repairs; Utility Installations; Trade Fixtures and Alterations .

7.1        Lessee’s Obligations . Notwithstanding Lessor’s obligation to keep the Premises in good condition and repair, Lessee shall be responsible for payment of the cost thereof to Lessor as additional rent for that portion of the cost of any maintenance and repair of the Premises, or any equipment (wherever located) that serves only Lessee or the Premises, to the extent such cost is attributable to abuse or misuse. In addition, Lessee rather than the Lessor shall be responsible for the cost of painting, repairing or replacing wall coverings, and to repair or replace any similar improvements within the Premises. Lessor may, at its option, upon reasonable notice, elect to have Lessee perform any particular such maintenance or repairs the cost of which is otherwise Lessee’s responsibility hereunder.”

7.2        Lessor’s Obligations . Subject to the provisions of Paragraphs 2.2 (Condition), 2.3 (Compliance), 4.2 (Operating Expenses), 6 (Use), 7.1 (Lessee’s Obligations), 9 (Damage or Destruction) and 14 (Condemnation), Lessor, subject to reimbursement pursuant to Paragraph 4.2, shall keep in good order, condition and repair the foundations, exterior walls, structural condition of interior bearing walls, exterior roof, fire sprinkler system, fire alarm and/or smoke detection systems, fire hydrants, and the Common Areas. Lessee expressly waives the benefit of any statute now or hereafter in effect to the extent it is inconsistent with the terms of this Lease.

7.3          Utility Installations; Trade Fixtures; Alterations .

     (a)   Definitions . The term “Utility Installations” refers to all floor and window coverings, air lines, vacuum lines, power panels, electrical distribution, security and fire protection systems, communication cabling, lighting fixtures, HVAC equipment, and plumbing in or on the Premises. The term “Trade Fixtures” shall mean Lessee’s machinery and equipment that can be removed without doing material damage to the Premises. The term “Alterations” shall mean any modification of the improvements, other than Utility Installations or Trade Fixtures, whether by addition or deletion. “Lessee Owned Alterations and/or Utility Installations” are defined as Alterations and/or Utility Installations made by Lessee that are not yet owned by Lessor pursuant to Paragraph 7.4(a).

      (b)   Consent . Lessee shall not make any Alterations or Utility Installations to the Premises without Lessor’s prior written consent. Lessee may, however, make non-structural Alterations or Utility Installations to the interior of the Premises (excluding the roof) without such consent but upon notice to Lessor, as long as they are not visible from the outside, do not involve puncturing, relocating or removing the roof, ceilings, floors or any existing walls, will not affect the electrical, plumbing, HVAC, and/or life safety systems, do not trigger the requirement for additional modifications and/or improvements to the Premises resulting from Applicable Requirements, such as compliance with Title 24, and the cumulative cost thereof during this Lease as extended does not exceed $2000. Notwithstanding the foregoing, Lessee shall not make or permit any roof penetrations and/or install anything on the roof without the prior written approval of Lessor. Lessor may, as a precondition to granting such approval, require Lessee to utilize a contractor chosen and/or approved by Lessor. Any Alterations or Utility Installations that Lessee shall desire to make and which require the consent of the Lessor shall be presented to Lessor in written form with detailed plans. Consent shall be deemed conditioned upon Lessee’s: (i) acquiring all applicable governmental permits, (ii) furnishing Lessor with copies of both the permits and the plans and specifications prior to commencement of the work, and (iii) compliance with all conditions of said permits and other Applicable Requirements in a prompt and expeditious manner. Any Alterations or Utility Installations shall be performed in a workmanlike manner with good and sufficient materials. Lessee shall promptly upon completion furnish Lessor with asbuilt plans and specifications. For work which costs an amount in excess of one month’s Base Rent, Lessor may condition its consent upon Lessee providing a lien and completion bond in an amount equal to 150% of the estimated cost of such Alteration or Utility Installation and/or upon Lessee’s posting an additional Security Deposit with Lessor.

      (c)   Liens; Bonds . Lessee shall pay, when due, all claims for labor or materials furnished or alleged to have been furnished to or for Lessee at or for use on the Premises, which claims are or may be secured by any mechanic’s or materialman’s lien against the Premises or any interest therein, Lessee shall give Lessor not less than 10 days notice prior to the commencement of any work in, on or about the Premises, and Lessor shall have the right to post notices of non-responsibility. If Lessee shall contest the validity of any such lien, claim or demand, then Lessee shall, at its sole expense defend and protect itself, Lessor and the Premises against the same and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof. If Lessor shall require, Lessee shall furnish a surety bond in an amount equal to 150% of the amount of such contested lien, claim or demand, indemnifying Lessor against liability for the same. If Lessor elects to participate in any such action, Lessee shall pay Lessor’s attorneys’ fees and costs.

7.4        Ownership; Removal; Surrender; and Restoration .

      (a)   Ownership . Subject to Lessor’s right to require removal or elect ownership as hereinafter provided, all Alterations and Utility Installations made by Lessee shall be the property of Lessee, but considered a part of the Premises. Lessor may, at any time, elect in writing to be the owner of all or any specified part of the Lessee Owned Alterations and Utility Installations. Unless otherwise instructed per paragraph 7.4(b) hereof, all Lessee Owned Alterations and Utility Installations shall, at the expiration or termination of this Lease, become the property of Lessor and be surrendered by Lessee with the Premises.

      (b)   Removal . By delivery to Lessee of written notice from Lessor not earlier than 90 and not later than 30 days prior to the end of the term of this Lease, Lessor may require that any or all Lessee Owned Alterations or Utility Installations be removed by the expiration or termination of this Lease. Lessor may require the removal at any time of all or any part of any Lessee Owned Alterations or Utility Installations made without the required consent.

 

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      (c)   Surrender; Restoration . Lessee shall surrender the Premises by the Expiration Date or any earlier termination date, with all of the improvements, parts and surfaces thereof clean and free of debris, and in good operating order, condition and state of repair, ordinary wear and tear excepted. “Ordinary wear and tear” shall not include any damage or deterioration that would have been prevented by good maintenance practice. Notwithstanding the foregoing, if this Lease is for 12 months or less, then Lessee shall surrender the Premises in the same condition as delivered to Lessee on the Start Date with NO allowance for ordinary wear and tear. Lessee shall repair any damage occasioned by the installation, maintenance or removal of Trade Fixtures, Lessee owned Alterations and/or Utility Installations, furnishings, and equipment as well as the removal of any storage tank installed by or for Lessee. Lessee shall also remove from the Premises any and all Hazardous Substances brought onto the Premises by or for Lessee, or any third party (except Hazardous Substances which were deposited via underground migration from areas outside of the Premises) to the level specified in Applicable Requirments. Trade Fixtures shall remain the property of Lessee and shall be removed by Lessee. Any personal property of Lessee not removed on or before the Expiration Date or any earlier termination date shall be deemed to have been abandoned by Lessee and may be disposed of or retained by Lessor as Lessor may desire. The failure by Lessee to timely vacate the Premises pursuant to this Paragraph 7.4(c) without the express written consent of Lessor shall constitute a holdover under the provisions of Paragraph 26 below.

8.               Insurance; Indemnity.

8.1       Insurance Premiums . The cost of the premiums for the insurance policies maintained by Lessor pursuant to paragraph 8 are included as Operating Expenses (see paragraph 4.2 (c)(iv)). Said costs shall include increases in the premiums resulting from additional coverage related to requirements of the holder of a mortgage or deed of trust covering the Premises, Building and/or Project, increased valuation of the Premises, Building and/or Project, and/or a general premium rate increase. Said costs shall not, however, include any premium increases resulting from the nature of the occupancy of any other tenant of the Building. If the Project was not insured for the entirety of the Base Year, then the base premium shall be the lowest annual premium reasonably obtainable for the required insurance as of the Start Date, assuming the most nominal use possible of the Building and/or Project. In no event, however, shall Lessee be responsible for any portion of the premium cost attributable to liability insurance coverage in excess of $2,000,000 procured under Paragraph 8.2(b).

8.2       Liability Insurance .

     (a)   Carried by Lessee . Lessee shall obtain and keep in force a Commercial General Liability policy of insurance protecting Lessee and Lessor as an additional insured against claims for bodily injury, personal injury and property damage based upon or arising out of the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than $1,000,000 $5,000,000 per occurrence with an annual aggregate of not less than $2,000,000 $5,000,000 Lessee shall add Lessor as an additional insured by means of an endorsement at least as broad as the Insurance Service Organization’s “Additional Insured-Managers or Lessors of Premises” Endorsement and coverage shall also be extended to include damage caused by heat, smoke or fumes from a hostile fire. The policy shall not contain any intra-insured exclusions as between insured persons or organizations, but shall include coverage for liability assumed under this Lease as an “insured contract” for the performance of Lessee’s indemnity obligations under this Lease. The limits of said insurance shall not, however, limit the liability of Lessee nor relieve Lessee of any obligation hereunder. Lessee shall provide an endorsement on its liability policy(ies) which provides that its insurance shall be primary to and not contributory with any similar insurance carried by Lessor, whose insurance shall be considered excess insurance only.

      (b)   Carried by Lessor . Lessor shall maintain liability insurance as described in Paragraph 8.2(a), in addition to, and not in lieu of, the insurance required to be maintained by Lessee. Lessee shall not be named as an additional insured therein.

8.3       Property Insurance - Building, Improvements and Rental Value .

      (a)   Building and Improvements . Lessor shall obtain and keep in force a policy or policies of insurance in the name of Lessor, with loss payable to Lessor, any ground-lessor, and to any Lender insuring loss or damage to the Building and/or Project. The amount of such insurance shall be equal to the full insurable replacement cost of the Building and/or Project, as the same shall exist from time to time, or the amount required by any Lender, but in no event more than the commercially reasonable and available insurable value thereof. Lessee Owned Alterations and Utility Installations, Trade Fixtures, and Lessee’s personal property shall be insured by Lessee not by Lessor. If the coverage is available and commercially appropriate, such policy or policies shall insure against all risks of direct physical loss or damage (except the perils of flood and/or earthquake unless required by a Lender), including coverage for debris removal and the enforcement of any Applicable Requirements requiring the upgrading, demolition, reconstruction or replacement of any portion of the Premises as the result of a covered loss. Said policy or policies shall also contain an agreed valuation provision in lieu of any coinsurance clause, waiver of subrogation, and inflation guard protection causing an increase in the annual property insurance coverage amount by a factor of not less than the adjusted U.S. Department of Labor Consumer Price Index for All Urban Consumers for the city nearest to where the Premises are located. If such insurance coverage has a deductible clause, the deductible amount shall not exceed $5,000 per occurrence.

    (b)   Rental Value . Lessor shall also obtain and keep in force a policy or policies in the name of Lessor with loss payable to Lessor and any Lender, insuring the loss of the full Rent for one year with an extended period of indemnity for an additional 180 days (“Rental Value insurance”). Said insurance shall contain an agreed valuation provision in lieu of any coinsurance clause, and the amount of coverage shall be adjusted annually to reflect the projected Rent otherwise payable by Lessee, for the next 12 month period.

    (c)   Adjacent Premises . Lessee shall pay for any increase in the premiums for the property insurance of the Building and for the Common Areas or other buildings in the Project if said increase is caused by Lessee’s acts, omissions, use or occupancy of the Premises.

    (d)   Lessee’s Improvements . Since Lessor is the Insuring Party, Lessor shall not be required to insure Lessee Owned Alterations and Utility Installations unless the item In question has become the property of Lessor under the terms of this Lease.

8.4       Lessee’s Property; Business Interruption Insurance; Worker’s Compensation Insurance.

    (a)   Property Damage . Lessee shall obtain and maintain insurance coverage on all of Lessee’s personal property, Trade Fixtures, and Lessee Owned Alterations and Utility Installations. Such insurance shall be full replacement cost coverage with a deductible of not to exceed $1,000 per occurrence. The proceeds from any such insurance shall be used by Lessee for the replacement of personal property, Trade Fixtures and Lessee Owned Alterations and Utility Installations.

    (b)   Worker’s Compensation Insurance . Lessee shall obtain and maintain Worker’s Compensation Insurance in such amount as may be required by Applicable Requirements. Such policy shall include a ‘Waiver of Subrogation’ endorsement. Lessee shall provide Lessor with a copy of such endorsement along with the certificate of Insurance or copy of the policy required by paragraph 8.5.

    (c)   Business Interruption . Lessee shall obtain and maintain loss of income and extra expense insurance in amounts as will reimburse Lessee for direct or indirect loss of earnings attributable to all perils commonly insured against by prudent lessees in the business of Lessee or attributable to prevention of access to the Premises as a result of such perils.

    (d)   No Representation of Adequate Coverage . Lessor makes no representation that the limits or forms of coverage of insurance specified herein are adequate to cover Lessee’s property, business operations or obligations under this Lease.

8.5       Insurance Policies . Insurance required herein shall be by companies maintaining during the policy term a “General Policyholders Rating” of at least A-, VII, as set forth in the most current issue of “Best’s Insurance Guide”, or such other rating as may be required by a Lender. Lessee shall not do or permit to be done anything which invalidates the required insurance policies. Lessee shall, prior to the Start Date, deliver to Lessor certified copies of policies of such insurance or certificates with copies of the required endorsements evidencing the existence and amounts of the required insurance. No such policy shall be cancelable or subject to modification except after 10 days prior written notice to Lessor. Lessee shall, at least 30 days prior to the expiration of such policies, furnish Lessor with evidence of renewals or “Insurance binders” evidencing renewal thereof, or Lessor may order such insurance and charge the cost thereof to Lessee, which amount shall be payable by Lessee to Lessor upon demand. Such policies shall be for a term of at least one year, or the length of the remaining term of this Lease, whichever is less. If either Party shall fall to procure and maintain the insurance required to be carried by it, the other Party may, but shall not be required to, procure and maintain the same.

8.6       Waiver of Subrogation . Without affecting any other rights or remedies, Lessee and Lessor each hereby release and relieve the other, and waive their entire right to recover damages against the other, for loss of or damage to its property arising out of or incident to the perils required to be insured against herein. The effect of such releases and waivers is not limited by the amount of insurance carried or required, or by any deductibles applicable hereto. The Parties agree to have their respective property damage insurance carriers waive any right to subrogation that such companies may have against Lessor or Lessee, as the case may be, so long as the insurance is not invalidated thereby.

8.7        Indemnity . Except for Lessor’s gross negligence or willful misconduct, Lessee shall indemnify, protect, defend and hold harmless the Premises, Lessor and its agents, Lessor’s master or ground lessor, partners and Lenders, from and against any and all claims, loss of rents and/or damages, liens, judgments, penalties, attorneys’ and consultants’ fees, expenses and/or liabilities arising out of, involving, or in connection with, the use and/or occupancy of the Premises by Lessee. If any action or proceeding is brought against Lessor by reason of any of the foregoing matters, Lessee shall upon notice defend the same at Lessee’s expense by counsel reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee in such defense. Lessor need not have first paid any such claim in order to be defended or indemnified.

8.8       Exemption of Lessor and its Agents from Liability . Notwithstanding the negligence or breach of this Lease by Lessor or its agents, neither Lessor nor its agents shall be liable under any circumstances for: (i) injury or damage to the person or goods, wares, merchandise or other property of Lessee, Lessee’s employees, contractors, invitees, customers, or any other person in or about the Premises, whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain, indoor air quality, the presence of mold or from the breakage, leakage, obstruction or other defects of pipes, fire sprinklers, wires, appliances, plumbing, HVAC or lighting fixtures, or from any other cause, whether the said injury or damage results from conditions arising upon the Premises or upon other portions of the Building, or from other sources or places, (ii) any damages arising from any act or neglect of any other tenant of Lessor or from the failure of Lessor or its agents to enforce the provisions of any other

 

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lease in the Project, or (iii) injury to Lessee’s business or for any loss of income or profit therefrom. Instead, it is intended that Lessee’s sole recourse in the event of such damages or injury be to file a claim on the insurance policy(ies) that Lessee is required to maintain pursuant to the provisions of paragraph 8.

8.9           Failure to Provide Insurance. Lessee acknowledges that any failure on its part to obtain or maintain the insurance required herein will expose Lessor to risks and potentially cause Lessor to incur costs not contemplated by this Lease, the extent of which will be extremely difficult to ascertain. Accordingly, for any month or portion thereof that Lessee does not maintain the required insurance and/or does not provide Lessor with the required binders or certificates evidencing the existence of the required insurance, the Base Rent shall be automatically increased, without any requirement for notice to Lessee, by an amount equal to 10% of the then existing Base Rent or $100, whichever is greater. The parties agree that such Increase in Base Rent represents fair and reasonable compensation for the additional risk/costs that Lessor will incur by reason of Lessee’s failure to maintain the required insurance. Such increase in Base Rent shall in no event constitute a waiver of Lessee’s Default or Breach with respect to the failure to maintain such insurance, prevent the exercise of any of the other rights and remedies granted hereunder, nor relieve Lessee of its obligation to maintain the insurance specified In this Lease.

9.             Damage or Destruction.

9.1           Definitions.

(a) “Premises Partial Damage” shall mean damage or destruction to the improvements on the Premises, other than Lessee Owned Alterations and Utility Installations, which can reasonably be repaired in 3 months or less from the date of the damage or destruction, and the cost thereof does not exceed a sum equal to 6 month’s Base Rent. Lessor shall notify Lessee in writing within 30 days from the date of the damage or destruction as to whether or not the damage is Partial or Total.

(b) “Premises Total Destruction” shall mean damage or destruction to the improvements on the Premises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which cannot reasonably be repaired in 3 months or less from the date of the damage or destruction and/or the cost thereof exceeds a sum equal to 6 month’s Base Rent. Lessor shall notify Lessee in writing within 30 days from the date of the damage or destruction as to whether or not the damage is Partial or Total.

(c) “Insured Loss” shall mean damage or destruction to improvements on the Premises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which was caused by an event required to be covered by the insurance described in Paragraph 8.3(a), irrespective of any deductible amounts or coverage limits involved.

(d) “Replacement Cost” shall mean the cost to repair or rebuild the improvements owned by Lessor at the time of the occurrence to their condition existing immediately prior thereto, including demolition, debris removal and upgrading required by the operation of Applicable Requirements, and without deduction for depreciation.

(e) “Hazardous Substance Condition” shall mean the occurrence or discovery of a condition involving the presence of, or a contamination by, a Hazardous Substance, in, on, or under the Premises which requires restoration.

9.2           Partial Damage - Insured Loss. If a Premises Partial Damage that is an Insured Loss occurs, then Lessor shall, at Lessor’s expense, repair such damage (but not Lessee’s Trade Fixtures or Lessee Owned Alterations and Utility Installations) as soon as reasonably possible and this Lease shall continue in full force and effect; provided, however, that Lessee shall, at Lessor’s election, make the repair of any damage or destruction the total cost to repair of which is $5,000 or less, and, in such event, Lessor shall make any applicable insurance proceeds available to Lessee on a reasonable basis for that purpose. Notwithstanding the foregoing, if the required insurance was not in force or the insurance proceeds are not sufficient to effect such repair, the Insuring Party shall promptly contribute the shortage in proceeds as and when required to complete said repairs. In the event, however, such shortage was due to the fact that, by reason of the unique nature of the improvements, full replacement cost insurance coverage was not commercially reasonable and available, Lessor shall have no obligation to pay for the shortage in insurance proceeds or to fully restore the unique aspects of the Premises unless Lessee provides Lessor with the funds to cover same, or adequate assurance thereof, within 10 days following receipt of written notice of such shortage and request therefor. If Lessor receives said funds or adequate assurance thereof within said 10 day period, the party responsible for making the repairs shall complete them as soon as reasonably possible and this Lease shall remain In full force and effect. If such funds or assurance are not received, Lessor may nevertheless elect by written notice to Lessee within 10 days thereafter to: (i) make such restoration and repair as is commercially reasonable with Lessor paying any shortage in proceeds, in which case this Lease shall remain in full force and effect, or (ii) have this Lease terminate 30 days thereafter. Lessee shall not be entitled to reimbursement of any funds contributed by Lessee to repair any such damage or destruction. Premises Partial Damage due to flood or earthquake shall be subject to Paragraph 9.3, notwithstanding that there may be some insurance coverage, but the net proceeds of any such insurance shall be made available for the repairs if made by either Party.

9.3           Partial Damage - Uninsured Loss. If a Premises Partial Damage that is not an Insured Loss occurs, unless caused by a negligent or willful act of Lessee (in which event Lessee shall make the repairs at Lessee’s expense), Lessor may either: (i) repair such damage as soon as reasonably possible at Lessor’s expense (subject to reimbursement pursuant to Paragraph 1.2), in which event this Lease shall continue in full force and effect, or (ii) terminate this Lease by giving written notice to Lessee within 30 days after receipt by Lessor of knowledge of the occurrence of such damage. Such termination shall be effective 60 days following the date of such notice. In the event Lessor elects to terminate this Lease, Lessee shall have the right within 10 days after receipt of the termination notice to give written notice to Lessor of Lessee’s commitment to pay for the repair of such damage without reimbursement from Lessor. Lessee shall provide Lessor with said funds or satisfactory assurance thereof within 30 days after making such commitment. In such event this Lease shall continue in full force and effect, and Lessor shall proceed to make such repairs as soon as reasonably possible after the required funds are available. If Lessee does not make the required commitment, this Lease shall terminate as of the date specified in the termination notice.

9.4           Total Destruction. Notwithstanding any other provision hereof, if a Premises Total Destruction occurs, this Lease shall terminate 60 days following such Destruction. If the damage or destruction was caused by the grass negligence or willful misconduct of Lessee, Lessor shall have the right to recover Lessor’s damages from Lessee, except as provided in Paragraph 8.6.

9.5           Damage Near End of Term. If at any time during the last 6 months of this Lease there is damage for which the cost to repair exceeds one month’s Base Rent, whether or not an Insured Loss, Lessor may terminate this Lease effective 60 days following the date of occurrence of such damage by giving a written termination notice to Lessee within 30 days after the date of occurrence of such damage. Notwithstanding the foregoing, if Lessee at that time has an exercisable option to extend this Lease or to purchase the Premises, then Lessee may preserve this Lease by, (a) exercising such option and (b) providing Lessor with any shortage in insurance proceeds (or adequate assurance thereof) needed to make the repairs on or before the earlier of (i) the date which is 10 days after Lessee’s receipt of Lessor’s written notice purporting to terminate this Lease, or (ii) the day prior to the date upon which such option expires. If Lessee duly exercises such option during such period and provides Lessor with funds (or adequate assurance thereof) to cover any shortage in insurance proceeds, Lessor shall, at Lessor’s commercially reasonable expense, repair such damage as soon as reasonably possible and this Lease shall continue in full force and effect. If Lessee fails to exercise such option and provide such funds or assurance during such period, then this Lease shall terminate on the date specified in the termination notice and Lessee’s option shall be extinguished.

9.6           Abatement of Rent; Lessee’s Remedies.

(a) Abatement. In the event of Premises Partial Damage or Premises Total Destruction or a Hazardous Substance Condition for which Lessee is not responsible under this Lease, the Rent payable by Lessee for the period required for the repair, remediation or restoration of such damage shall be abated in proportion to the degree to which Lessee’s use of the Premises is impaired, but not to exceed the proceeds received from the Rental Value insurance. All other obligations of Lessee hereunder shall be performed by Lessee, and Lessor shall have no liability for any such damage, destruction, remediation, repair or restoration except as provided herein.

(b) Remedies. If Lessor is obligated to repair or restore the Premises and does not commence, in a substantial and meaningful way, such repair or restoration within 90 days after such obligation shall accrue, Lessee may, at any time prior to the commencement of such repair or restoration, give written notice to Lessor and to any Lenders of which Lessee has actual notice, of Lessee’s election to terminate this Lease on a date not less than 60 days following the giving of such notice. If Lessee gives such notice and such repair or restoration is not commenced within 30 days thereafter, this Lease shall terminate as of the date specified in said notice. If the repair or restoration is commenced within such 30 days, this Lease shall continue in full force and effect. “Commence” shall mean either the unconditional authorization of the preparation of the required plans, or the beginning of the actual work on the Premises, whichever first occurs.

9.7           Termination; Advance Payments. Upon termination of this Lease pursuant to Paragraph 6.2(g) or Paragraph 9, an equitable adjustment shall be made concerning advance Base Rent and any other advance payments made by Lessee to Lessor. Lessor shall, in addition, return to Lessee so much of Lessee’s Security Deposit as has not been, or is not then required to be, used by Lessor.

10.         Real Property Taxes.

10.1           Definitions. As used herein, the term “ Real Property Taxes ” shall include any form of assessment; real estate, general, special, ordinary or extraordinary, or rental levy or tax (other than inheritance, personal income or estate taxes); improvement bond; and/or license fee imposed upon or levied against any legal or equitable interest of Lessor in the Project, Lessor’s right to other income therefrom, and/or Lessor’s business of leasing, by any authority having the direct or indirect power to tax and where the funds are generated with reference to the Project address. “ Real Property Taxes ” shall also include any tax, fee, levy, assessment or charge, or any increase therein: (i) imposed by reason of events occurring during the term of this Lease, including but not limited to, a change in the ownership of the Project, (ii) a change in the improvements thereon, and/or (iii) levied or assessed on machinery or equipment provided by Lessor to Lessee pursuant to this Lease.

 

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10.2           Payment of Taxes. Except as otherwise provided in Paragraph 10.3, Lessor shall pay the Real Property Taxes applicable to the Project, and said payments shall be included in the calculation of Operating Expenses in accordance with the provisions of Paragraph 4.2.

10.3           Additional Improvements. Operating Expenses shall not include Real Property Taxes specified in the tax assessor’s records and work sheets as being caused by additional improvements placed upon the Project by other lessees or by Lessor for the exclusive enjoyment of such other lessees. Notwithstanding Paragraph 10.2 hereof, Lessee shall, however, pay to Lessor at the time Operating Expenses are payable under Paragraph 4.2, the entirety of any increase in Real Property Taxes if assessed solely by reason of Alterations, Trade Fixtures or Utility Installations placed upon the Premises by Lessee or at Lessee’s request or by reason of any alterations or improvements to the Premises made by Lessor subsequent to the execution of this Lease by the Parties.

10.4           Joint Assessment. If the Building is not separately assessed. Real Property Taxes allocated to the Building shall be an equitable proportion of the Real Property Taxes for all of the land and improvements included within the tax parcel assessed, such proportion to be determined by Lessor from the respective valuations assigned in the assessor’s work sheets or such other information as may be reasonably available. Lessor’s reasonable determination thereof, in good faith, shall be conclusive.

10.5           Personal Property Taxes. Lessee shall pay prior to delinquency all taxes assessed against and levied upon Lessee Owned Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all personal property of Lessee contained in the Premises. When possible, Lessee shall cause its Lessee Owned Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all other personal property to be assessed and billed separately from the real property of Lessor. If any of Lessee’s said property shall be assessed with Lessor’s real property. Lessee shall pay Lessor the taxes attributable to Lessee’s property within 10 days after receipt of a written statement setting forth the taxes applicable to Lessee’s property.

11.         Utilities and Services.

11.1           Services Provided by Lessor. Lessor shall provide heating, ventilation, air conditioning, reasonable amounts of electricity for normal lighting and office machines, water for reasonable and normal drinking and lavatory use in connection with an office, and replacement light bulbs and/or fluorescent tubes and ballasts for standard overhead fixtures. Lessor shall also provide janitorial services to the Premises and Common Areas 5 times per week, excluding Building Holidays, or pursuant to the attached janitorial schedule. If any. Lesser shall not, however, be required to provide janitorial services to kitchens or storage areas Included within the Premises.

11.2   Services Exclusive to Lessee. Notwithstanding the provisions of paragraph 11.1, Lessee shall pay for all water, gas, light, power, telephone and other utilities and services specially or exclusively supplied and/or metered exclusively to the Premises or to Lessee, together with any taxes thereon. If a service is deleted by Paragraph 1.13 and such service is not separately metered to the Premises, Lessee shall pay at Lessor’s option, either Lessee’s Share or a reasonable proportion to be determined by Lessor of all charges for such jointly metered service.

11.3   Hours of Service. Said services and utilities shall be provided during times set forth in Paragraph 1.12. Utilities and services that are not seperately metered and required at other times shall be subject to advance request and reimbursement by Lessee to Lessor of the cost thereof.

11.4   Excess Usage by Lessee. Lessee shall not make connection to the utilities except by or through existing outlets and shall not install or use machinery or equipment in or about the Premises that uses excess water, lighting or power, or suffer or permit any act that causes extra burden upon the utilities or services, including but not limited to security and trash services, over standard office usage for the Project. Lessor shall require Lessee to reimburse Lessor for any excess expenses or costs that may arise out of a breach of this subparagraph by Lessee. Lessor may, in its sole discretion, install at Lessee’s expense supplemental equipment and/or separate metering applicable to Lessee’s excess usage or loading.

11.5   Interruptions. There shall be no abatement of rent and Lessor shall not be liable in any respect whatsoever for the inadequacy, stoppage, interruption or discontinuance of any utility or service due to riot, strike, labor dispute, breakdown, accident, repair or other cause beyond Lessor’s reasonable control or in cooperation with governmental request or directions.

12.         Assignment and Subletting.

12.1       Lessor’s Consent Required.

(a) Lessee shall not voluntarily or by operation of law assign, transfer, mortgage or encumber (collectively, “ assign or assignment ) or sublet all or any part of Lessee’s interest in this Lease or in the Premises without Lessor’s prior written consent.

(b) Unless Lessee is a corporation and its stock is publicly traded on a national stock exchange, a change in the control of Lessee shall constitute an assignment requiring consent. The transfer, on a cumulative basis, of 25% or more of the voting control of Lessee shall constitute a change in control for this purpose.

(c) The involvement of Lessee or its assets in any transaction, or series of transactions (by way of merger, sale, acquisition, financing, transfer, leveraged buyout or otherwise), whether or not a formal assignment or hypothecation of this Lease or Lessee’s assets occurs, which results or will result in a reduction of the Net Worth of Lessee by an amount greater than 25% of such Net Worth as it was represented at the time of the execution of this Lease or at the time of the most recent assignment to which Lessor has consented, or as it exists immediately prior to said transaction or transactions constituting such reduction, whichever was or is greater, shall be considered an assignment of this Lease to which Lessor may withhold its consent. “Net Worth of Lessee” shall mean the net worth of Lessee (excluding any guarantors) established under generally accepted accounting principles.

(d) An assignment or subletting without consent shall, at Lessor’s option, be a Default curable after notice per Paragraph 13.1 (d), or a noncurable Breach without the necessity of any notice and grace period. If Lessor elects to treat such unapproved assignment or subletting as a noncurable Breach, Lessor may either: (i) terminate this Lease, or (ii) upon 30 days written notice, increase the monthly Base Rent to 110% of the Base Rent then in effect. Further, in the event of such Breach and rental adjustment, (i) the purchase price of any option to purchase the Premises held by Lessee shall be subject to similar adjustment to 110% of the price previously in effect, and (ii) all fixed and non-fixed rental adjustments scheduled during the remainder of the Lease term shall be increased to 110% of the scheduled adjusted rent.

(e) Lessee’s remedy for any breach of Paragraph 12.1 by Lessor shall be limited to compensatory damages and/or injunctive relief.

(f) Lessor may reasonably withhold consent to a proposed assignment or subletting if Lessee is in Default at the time consent is requested.

(g) Notwithstanding the foregoing, allowing a de minimis portion of the Premises, i e. 20 square feet or less, to be used by a third party vendor in connection with the installation of a vending machine or payphone shall not constitute a subletting.

12.2       Terms and Conditions Applicable to Assignment and Subletting.

(a) Regardless of Lessor’s consent, no assignment or subletting shall: (i) be effective without the express written assumption by such assignee or sublessee of the obligations of Lessee under this Lease, (ii) release Lessee of any obligations hereunder, or (iii) alter the primary liability of Lessee for the payment of Rent or for the performance of any other obligations to be performed by Lessee.

(b) Lessor may accept Rent or performance of Lessee’s obligations from any person other than Lessee pending approval or disapproval of an assignment. Neither a delay in the approval or disapproval of such assignment nor the acceptance of Rent or performance shall constitute a waiver or estoppel of Lessor’s right to exercise its remedies for Lessee’s Default or Breach.

(c) Lessor’s consent to any assignment or subletting shall not constitute a consent to any subsequent assignment or subletting.

(d) In the event of any Default or Breach by Lessee, Lessor may proceed directly against Lessee, any Guarantors or anyone else responsible for the performance of Lessee’s obligations under this Lease, including any assignee or sublessee, without first exhausting Lessor’s remedies against any other person or entity responsible therefore to Lessor, or any security held by Lessor.

(e) Each request for consent to an assignment or subletting shall be in writing, accompanied by information relevant to Lessor’s determination as to the financial and operational responsibility and appropriateness of the proposed assignee or sublessee, including but not limited to the intended use and/or required modification of the Premises, if any, together with a fee of $500 as consideration for Lessor’s considering and processing said request. Lessee agrees to provide Lessor with such other or additional information and/or documentation as may be reasonably requested. (See also Paragraph 36)

(f) Any assignee of, or sublessee under, this Lease shall, by reason of accepting such assignment, entering into such sublease, or entering into possession of the Premises or any portion thereof, be deemed to have assumed and agreed to conform and comply with each and every term, covenant, condition and obligation herein to be observed or performed by Lessee during the term of said assignment or sublease, other than such obligations as are contrary to or inconsistent with provisions of an assignment or sublease to which Lessor has specifically consented to in writing.

(g) Lessor’s consent to any assignment or subletting shall not transfer to the assignee or sublessee any Option granted to the original Lessee by this Lease unless such transfer is specifically consented to by Lessor in writing. (See Paragraph 39.2)

12.3           Additional Terms and Conditions Applicable to Subletting. The following terms and conditions shall apply to any subletting by Lessee of all or any part of the Premises and shall be deemed included in all subleases under this Lease whether or not expressly incorporated therein:

(a) Lessee hereby assigns and transfers to Lessor all of Lessee’s interest in all Rent payable on any sublease, and Lessor may collect such Rent and apply same toward Lessee’s obligations under this Lease; provided, however, that until a Breach shall occur in the performance of Lessee’s obligations, Lessee may collect said Rent. In the event that the amount collected by Lessor exceeds Lessee’s then outstanding obligations any such excess shall be refunded to Lessee. Lessor shall not, by reason of the foregoing or any assignment of such sublease, nor by reason of the collection of Rent, be deemed liable to the sublessee for any failure of Lessee to perform and comply with any of Lessee’s obligations to such sublessee. Lessee hereby irrevocably authorizes and directs any such sublessee, upon receipt of a written notice from Lessor stating that a Breach exists in the performance of Lessee’s obligations under this Lease, to pay to Lessor all Rent due and to become due under the sublease. Sublessee shall rely upon any such notice from Lessor and shall pay all Rents to Lessor without any obligation or right to inquire as to whether such Breach exists, notwithstanding any claim from Lessee to the contrary.

 

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(b) In the event of a Breach by Lessee, Lessor may, at its option, require sublessee to attorn to Lessor, in which event Lessor shall undertake the obligations of the sublessor under such sublease from the time of the exercise of said option to the expiration of such sublease; provided, however, Lessor shall not be liable for any prepaid rents or security deposit paid by such sublessee to such sublessor or for any prior Defaults or Breaches of such sublessor.

(c) Any matter requiring the consent of the sublessor under a sublease shall also require the consent of Lessor.

(d) No sublessee shall further assign or sublet all or any part of the Premises without Lessor’s prior written consent.

(e) Lessor shall deliver a copy of any notice of Default or Breach by Lessee to the sublessee, who shall have the right to cure the Default of Lessee within the grace period, if any, specified in such notice. The sublessee shall have a right of reimbursement and offset from and against Lessee for any such Defaults cured by the sublessee.

13.         Default; Breach; Remedies.

13.1           Default; Breach. A “ Default ” is defined as a failure by the Lessee to comply with or perform any of the terms, covenants, conditions or Rules and Regulations under this Lease. A “ Breach ” is defined as the occurrence of one or more of the following Defaults, and the failure of Lessee to cure such Default within any applicable grace period:

(a) The abandonment of the Premises; or the vacating of the Premises without providing a commercially reasonable level of security, or where the coverage of the property insurance described in Paragraph 8.3 is jeopardized as a result thereof, or without providing reasonable assurances to minimize potential vandalism.

(b) The failure of Lessee to make any payment of Rent or any Security Deposit required to be made by Lessee hereunder, whether to Lessor or to a third party, when due, to provide reasonable evidence of insurance or surety bond, or to fulfill any obligation under this Lease which endangers or threatens life or property, where such failure continues for a period of 3 business days following written notice to Lessee. THE ACCEPTANCE BY LESSOR OF A PARTIAL PAYMENT OF RENT OR SECURITY DEPOSIT SHALL NOT CONSTITUTE A WAIVER OF ANY OF LESSOR’S RIGHTS, INCLUDING LESSOR’S RIGHT TO RECOVER POSSESSION OF THE PREMISES.

(c) The failure of Lessee to allow Lessor and/or its agents access to the Premises or the commission of waste, act or acts constituting public or private nuisance, and/or an illegal activity on the Premises by Lessee, where such actions continue for a period of 3 business days following written notice to Lessee. In the event that Lessee commits waste, a nuisance or an illegal activity a second time then, the Lesser may elect to treat such conduct as a non curable Breach rather than a Default.

(d) The failure by Lessee to provide (i) reasonable written evidence of compliance with Applicable Requirements, (ii) the service contracts, (iii) the rescission of an unauthorized assignment or subletting, (iv) an Estoppel Certificate or financial statements, (v) a requested subordination, (vi) evidence concerning any guaranty and/or Guarantor, (vii) any document requested under Paragraph 41, (viii) material data safety sheets (MSDS), or (ix) any other documentation or information which Lessor may reasonably require of Lessee under the terms of this Lease, where any such failure continues for a period of 10 days following written notice to Lessee.

(e) A Default by Lessee as to the terms, covenants, conditions or provisions of this Lease, or of the rules adopted under Paragraph 2.9 hereof, other than those described in subparagraphs 13.1(a), (b) or (c), above, where such Default continues for a period of 30 days after written notice; provided, however, that if the nature of Lessee’s Default is such that more than 30 days are reasonably required for its cure, then it shall not be deemed to be a Breach if Lessee commences such cure within said 30 day period and thereafter diligently prosecutes such cure to completion.

(f) The occurrence of any of the following events: (i) the making of any general arrangement or assignment for the benefit of creditors; (ii) becoming a “ debtor ” as defined in 11 U.S.C. § 101 or any successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within 60 days); (iii) the appointment of a trustee or receiver to take possession of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest in this Lease, where possession is not restored to Lessee within 30 days; or (iv) the attachment, execution or other judicial seizure of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest in this Lease, where such seizure is not discharged within 30 days; provided, however, in the event that any provision of this subparagraph is contrary to any applicable law, such provision shall be of no force or effect, and not affect the validity of the remaining provisions.

(g) The discovery that any financial statement of Lessee or of any Guarantor given to Lessor was materially false.

(h) If the performance of Lessee’s obligations under this Lease is guaranteed: (i) the death of a Guarantor, (ii) the termination of a Guarantors liability with respect to this Lease other than in accordance with the terms of such guaranty, (iii) a Guarantor’s becoming insolvent or the subject of a bankruptcy filing, (iv) a Guarantor’s refusal to honor the guaranty, or (v) a Guarantor’s breach of its guaranty obligation on an anticipatory basis, and Lessee’s failure, within 60 days following written notice of any such event, to provide written alternative assurance or security, which, when coupled with the then existing resources of Lessee, equals or exceeds the combined financial resources of Lessee and the Guarantors that existed at the time of execution of this Lease.

13.2           Remedies. If Lessee fails to perform any of its affirmative duties or obligations, within 10 days after written notice (or in case of an emergency, without notice), Lessor may, at its option, perform such duty or obligation on Lessee’s behalf, including but not limited to the obtaining of reasonably required bonds, Insurance policies, or governmental licenses, permits or approvals. Lessee shall pay to Lessor an amount equal to 115% of the costs and expenses incurred by Lessor in such performance upon receipt of an invoice therefor. In the event of a Breach, Lessor may, with or without further notice or demand, and without limiting Lessor in the exercise of any right or remedy which Lessor may have by reason of such Breach:

(a) Terminate Lessee’s right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession to Lessor. In such event Lessor shall be entitled to recover from Lessee: (i) the unpaid Rent which had been earned at the time of termination; (ii) the worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that the Lessee proves could have been reasonably avoided; (iii) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that the Lessee proves could be reasonably avoided; and (iv) any other amount necessary to compensate Lessor for all the detriment proximately caused by the Lessee’s failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, including but not limited to the cost of recovering possession of the Premises, expenses of reletting, including necessary renovation and alteration of the Premises, reasonable attorneys’ fees, and that portion of any leasing commission paid by Lessor in connection with this Lease applicable to the unexpired term of this Lease. The worth at the time of award of the amount referred to in provision (iii) of the immediately preceding sentence shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of the District within which the Premises are located at the time of award plus one percent. Efforts by Lessor to mitigate damages caused by Lessee’s Breach of this Lease shall not waive Lessor’s right to recover any damages to which Lessor is otherwise entitled. If termination of this Lease is obtained through the provisional remedy of unlawful detainer, Lessor shall have the right to recover in such proceeding any unpaid Rent and damages as are recoverable therein, or Lessor may reserve the right to recover all or any part thereof in a separate suit. If a notice and grace period required under Paragraph 13.1 was not previously given, a notice to pay rent or quit, or to perform or quit given to Lessee under the unlawful detainer statute shall also constitute the notice required by Paragraph 13.1. In such case, the applicable grace period required by Paragraph 13.1 and the unlawful detainer statute shall run concurrently, and the failure of Lessee to cure the Default within the greater of the two such grace periods shall constitute both an unlawful detainer and a Breach of this Lease entitling Lessor to the remedies provided for in this Lease and/or by said statute.

(b) Continue the Lease and Lessee’s right to possession and recover the Rent as it becomes due, in which event Lessee may sublet or assign, subject only to reasonable limitations. Acts of maintenance, efforts to relet, and/or the appointment of a receiver to protect the Lessor’s interests, shall not constitute a termination of the Lessee’s right to possession.

(c) Pursue any other remedy now or hereafter available under the laws or judicial decisions of the state wherein the Premises are located. The expiration or termination of this Lease and/or the termination of Lessee’s right to possession shall not relieve Lessee from liability under any indemnity provisions of this Lease as to matters occurring or accruing during the term hereof or by reason of Lessee’s occupancy of the Premises.

13.3           Inducement Recapture. Any agreement for free or abated rent or other charges, the coat of tenant improvements for Lessee paid for or performed by Lesser , or for the giving or paying by Lessor to or for Lessee of any cash or other bonus, Inducement or consideration for Lessee’s entering into this Lease, all of which concessions are hereinafter referred to as “ Inducement Provisions ”, shall be deemed conditioned upon Lessee’s full and faithful performance of all of the terms, covenants and conditions of this Lease. Upon Breach of this Lease by Lessee, any such Inducement Provision shall automatically be deemed deleted from this Loose and of no further force or effect, and any rent, other charge, bonus, inducement or consideration theretofore abated, given or paid by Lessor under such an Inducement Provision shall be immediately due and payable by Lessee to Lessor, notwithstanding any subsequent cure of said Breach by Lessee. The acceptance by Lessor of rent or the cure of the Breach which initiated the operation of this paragraph shall not be deemed a waiver by Lessor of the provisions of this paragraph unless specifically so stated in writing by Lessor at the time of such acceptance.

13.4           Late Charges. Lessee hereby acknowledges that late payment by Lessee of Rent will cause Lessor to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed upon Lessor by any Lender. Accordingly, if any Rent shall not be received by Lessor within 5 days after such amount shall be due, then, without any requirement for notice to Lessee, Lessee shall immediately pay to Lessor a one-time late charge equal to 10% of each such overdue amount or $100, whichever is greater. The parties hereby agree that such late charge represents a fair

 

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and reasonable estimate of the costs Lessor will incur by reason of such late payment. Acceptance of such late charge by Lessor shall in no event constitute a waiver of Lessee’s Default or Breach with respect to such overdue amount, nor prevent the exercise of any of the other rights and remedies granted hereunder. In the event that a late charge is payable hereunder, whether or not collected, for 3 consecutive installments of Base Rent, then notwithstanding any provision of this Lease to the contrary, Base Rent shall, at Lessor’s option, become due and payable quarterly in advance.

13.5       Interest . Any monetary payment due Lessor hereunder, other than late charges, not received by Lessor, when due shall bear interest from the 31st day after it was due. The interest (“ Interest ”) charged shall be computed at the rate of 10% per annum but shall not exceed the maximum rate allowed by law. Interest is payable in addition to the potential late charge provided for in Paragraph 13.4.

13.6       Breach by Lessor .

(a) Notice of Breach . Lessor shall not be deemed in breach of this Lease unless Lessor fails within a reasonable time to perform an obligation required to be performed by Lessor. For purposes of this Paragraph, a reasonable time shall in no event be less than 30 days after receipt by Lessor, and any Lender whose name and address shall have been furnished Lessee in writing for such purpose, of written notice specifying wherein such obligation of Lessor has not been performed; provided, however, that if the nature of Lessor’s obligation is such that more than 30 days are reasonably required for its performance, then Lessor shall not be in breach if performance is commenced within such 30 day period and thereafter diligently pursued to completion.

(b) Performance by Lessee on Behalf of Lessor . In the event that neither Lessor nor Lender cures said breach within 30 days after receipt of said notice, or if having commenced said cure they do not diligently pursue it to completion, then Lessee may elect to cure said breach at Lessee’s expense and offset from Rent the actual and reasonable cost to perform such cure, provided however, that such offset shall not exceed an amount equal to the greater of one month’s Base Rent or the Security Deposit, reserving Lessee’s right to seek reimbursement from Lessor for any such expense in excess of such offset Lessee shall document the cost of said cure and supply said documentation to Lessor.

14.             Condemnation . If the Premises or any portion thereof are taken under the power of eminent domain or sold under the threat of the exercise of said power (collectively “ Condemnation ”), this Lease shall terminate as to the part taken as of the date the condemning authority takes title or possession, whichever first occurs. If more than 10% of the rentable floor area of the Premises, or more than 25% of Lessee’s Reserved Parking Spaces, if any, are taken by Condemnation, Lessee may, at Lessee’s option, to be exercised in writing within 10 days after Lessor shall have given Lessee written notice of such taking (or in the absence of such notice, within 10 days after the condemning authority shall have taken possession) terminate this Lease as of the date the condemning authority takes such possession. If Lessee does not terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the portion of the Premises remaining, except that the Base Rent shall be reduced in proportion to the reduction in utility of the Premises caused by such Condemnation. Condemnation awards and/or payments shall be the property of Lessor, whether such award shall be made as compensation for diminution in value of the leasehold, the value of the part taken, or for severance damages; provided, however, that Lessee shall be entitled to any compensation paid by the condemnor for Lessee’s relocation expenses, loss of business goodwill and/or Trade Fixtures, without regard to whether or not this Lease is terminated pursuant to the provisions of this Paragraph. All Alterations and Utility Installations made to the Premises by Lessee, for purposes of Condemnation only, shall be considered the property of the Lessee and Lessee shall be entitled to any and all compensation which is payable therefor. In the event that this Lease is not terminated by reason of the Condemnation, Lessor shall repair any damage to the Premises caused by such Condemnation.

15.              Brokerage Fees .

15,1       Additional Commission. In addition to the payments owed pursuant to Paragraph 1.10 above, Lesser agrees that: (a) if Lessee exercises any Option, (b) if Lessee or anyone affiliated with Lessee acquires from Lesser any rights to the Premises or other premises owned by Lesser and located within the Project, (c) if Lessee remains in pessession of the Premises, with the censent of Lessor, after the expiration of this Lease, or (d) if Base Rent is increased, whether by agreement or operation of an escalation clause heroin, then, Lesser shall pay Brokers a fee in accordance with the fee schedule of the Brokers in effect at the time the Lease was executed.

15.2       Assumption of Obligations . Any buyer or transferee of Lessor’s interest in this Lease shall be deemed to have assumed Lessor’s obligation hereunder. Brokers shall be third party beneficiaries of the provisions of Paragraphs 1.10, 15, 22 and 31. If Lessor falls to pay to Brokers any amounts due as and for brokerage fees pertaining to this Lease when due, then such amounts shall accrue Interest. In addition, if Lessor fails to pay any amounts to Lessee’s Broker when due, Lessee’s Broker may send written notice to Lessor and Lessee of such failure and if Lessor fails to pay such amounts within 10 days after said notice, Lessee shall pay said monies to Its Broker and offset such amounts against Rent. In addition, Lessee’s Broker shall be deemed to be a third party beneficiary of any commission agreement entered into by and/or between Lessor and Lessor’s Broker for the limited purpose of collecting any brokerage fee owed.

15.3       Representations and Indemnities of Broker Relationships . Lessee and Lessor each represent and warrant to the other that it has had no dealings with any person, firm, broker or finder (other than the Brokers, if any) in connection with this Lease, and that no one other than said named Brokers is entitled to any commission or finder’s fee in connection herewith. Lessee and Lessor do each hereby agree to indemnify, protect, defend and hold the other harmless from and against liability for compensation or charges which may be claimed by any such unnamed broker, finder or other similar party by reason of any dealings or actions of the indemnifying Party, including any costs, expenses, attorneys’ fees reasonably incurred with respect thereto.

16.             Estoppel Certificates .

(a) Each Party (as “ Responding Party ”) shall within 10 days after written notice from the other Party (the “ Requesting Party ”) execute, acknowledge and deliver to the Requesting Party a statement in writing in form similar to the then most current “Estoppel Certificate” form published by the AIRCommercial Real Estate Association, plus such additional information, confirmation and/or statements as may be reasonably requested by the Requesting Party.

(b) If the Responding Party shall fail to execute or deliver the Estoppel Certificate within such 10 day period, the Requesting Party may execute an Estoppel Certificate stating that: (i) the Lease is in full force and effect without modification except as may be represented by the Requesting Party, (ii) there are no uncured defaults in the Requesting Party’s performance, and (iii) if Lessor is the Requesting Party, not more than one month’s rent has been paid in advance. Prospective purchasers and encumbrancers may rely upon the Requesting Party’s Estoppel Certificate, and the Responding Party shall be estopped from denying the truth of the facts contained in said Certificate. In addition, Lessee acknowledges that any failure on its part to provide such an Estoppel Certificate will expose Lessor to risks and potentially cause Lessor to incur costs not contemplated by this Lease, the extent of which will be extremely difficult to ascertain. Accordingly, should the Lessee fail to execute and/or deliver a requested Estoppel Certificate in a timely fashion the monthly Base Rent shall be automatically increased, without any requirement for notice to Lessee, by an amount equal to 10% of the then existing Base Rent or $100, whichever is greater for remainder of the Lease. The Parties agree that such increase in Base Rent represents fair and reasonable compensation for the additional risk/costs that Lessor will incur by reason of Lessee’s failure to provide the Estoppel Certificate. Such increase in Base Rent shall in no event constitute a waiver of Lessee’s Default or Breach with respect to the failure to provide the Estoppel Certificate nor prevent the exercise of any of the other rights and remedies granted hereunder.

(c) If Lessor desires to finance, refinance, or sell the Premises, or any part thereof, Lessee and all Guarantors shall within 10 days after written notice from Lessor deliver to any potential lender or purchaser designated by Lessor such financial statements as may be reasonably required by such lender or purchaser, including but not limited to Lessee’s financial statements for the past 3 years. All such financial statements shall be received by Lessor and such lender or purchaser in confidence and shall be used only for the purposes herein set forth.

17.             Definition of Lessor . The term “ Lessor ” as used herein shall mean the owner or owners at the time in question of the fee title to the Premises, or, if this is a sublease, of the Lessee’s interest in the prior lease. In the event of a transfer of Lessor’s title or interest in the Premises or this Lease, Lessor shall deliver to the transferee or assignee (in cash or by credit) any unused Security Deposit held by Lessor. Upon such transfer or assignment and delivery of the Security Deposit, as aforesaid, the prior Lessor shall be relieved of all liability with respect to the obligations and/or covenants under this Lease thereafter to be performed by the Lessor. Subject to the foregoing, the obligations and/or covenants in this Lease to be performed by the Lessor shall be binding only upon the Lessor as hereinabove defined.

18.             Severability . The invalidity of any provision of this Lease, as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof.

19.             Days . Unless otherwise specifically indicated to the contrary, the word “days” as used in this Lease shall mean and refer to calendar days.

20.             Limitation on Liability . The obligations of Lessor under this Lease shall not constitute personal obligations of Lessor or its partners, members, directors, officers or shareholders, and Lessee shall look to the Project, and to no other assets of Lessor, for the satisfaction of any liability of Lessor with respect to this Lease, and shall not seek recourse against Lessor’s partners, members, directors, officers or shareholders, or any of their personal assets for such satisfaction.

21.             Time of Essence . Time is of the essence with respect to the performance of all obligations to be performed or observed by the Parties under this Lease.

22.             No Prior or Other Agreements; Broker Disclaimer . This Lease contains all agreements between the Parties with respect to any matter mentioned herein, and no other prior or contemporaneous agreement or understanding shall be effective. Lessor and Lessee each represents and warrants to the Brokers that it has made, and is relying solely upon, its own investigation as to the nature, quality, character and financial responsibility of the other Party to this Lease and as to the use, nature, quality and character of the Premises. Brokers have no responsibility with respect thereto or with respect to any default or breach hereof by either Party.

23.              Notices .

 

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23.1       Notice Requirements . All notices required or permitted by this Lease or applicable law shall be in writing and may be delivered in person (by hand or by courier) or may be sent by regular, certified or registered mail or U.S. Postal Service Express Mail, with postage prepaid, or by facsimile transmission, or by email, and shall be deemed sufficiently given if served in a manner specified in this Paragraph 23. The addresses noted adjacent to a Party’s signature on this Lease shall be that Party’s address for delivery or mailing of notices. Either Party may by written notice to the other specify a different address for notice, except that upon Lessee’s taking possession of the Premises, the Premises shall constitute Lessee’s address for notice. A copy of all notices to Lessor shall be concurrently transmitted to such party or parties at such addresses as Lessor may from time to time hereafter designate in writing.

23.2       Date of Notice . Any notice sent by registered or certified mail, return receipt requested, shall be deemed given on the date of delivery shown on the receipt card, or if no delivery date is shown, the postmark thereon. If sent by regular mail the notice shall be deemed given 72 hours after the same is addressed as required herein and mailed with postage prepaid. Notices delivered by United States Express Mail or overnight courier that guarantees next day delivery shall be deemed given 24 hours after delivery of the same to the Postal Service or courier. Notices delivered by hand, or transmitted by facsimile transmission or by email shall be deemed delivered upon actual receipt. If notice is received on a Saturday, Sunday or legal holiday, it shall be deemed received on the next business day.

24.            

Waivers .

(a)      No waiver by Lessor of the Default or Breach of any term, covenant or condition hereof by Lessee, shall be deemed a waiver of any other term, covenant or condition hereof, or of any subsequent Default or Breach by Lessee of the same or of any other term, covenant or condition hereof. Lessor’s consent to, or approval of, any act shall not be deemed to render unnecessary the obtaining of Lessor’s consent to, or approval of, any subsequent or similar act by Lessee, or be construed as the basis of an estoppel to enforce the provision or provisions of this Lease requiring such consent.

(b)      The acceptance of Rent by Lessor shall not be a waiver of any Default or Breach by Lessee. Any payment by Lessee may be accepted by Lessor on account of moneys or damages due Lessor, notwithstanding any qualifying statements or conditions made by Lessee in connection therewith, which such statements and/or conditions shall be of no force or effect whatsoever unless specifically agreed to in writing by Lessor at or before the time of deposit of such payment.

(c)      THE PARTIES AGREE THAT THE TERMS OF THIS LEASE SHALL GOVERN WITH REGARD TO ALL MATTERS RELATED THERETO AND HEREBY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE TO THE EXTENT THAT SUCH STATUTE IS INCONSISTENT WITH THIS LEASE.

25.             Disclosures Regarding The Nature of a Real Estate Agency Relationship .

(a)      When entering into a discussion with a real estate agent regarding a real estate transaction, a Lessor or Lessee should from the outset understand what type of agency relationship or representation it has with the agent or agents in the transaction. Lessor and Lessee acknowledge being advised by the Brokers in this transaction, as follows:

(i)       Lessor’s Agent. A Lessor’s agent under a listing agreement with the Lessor acts as the agent for the Lessor only. A Lessor’s agent or subagent has the following affirmative obligations: To the Lessor: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Lessor. To the Lessee and the Lessor: a. Diligent exercise of reasonable skills and care in performance of the agent’s duties. b. A duty of honest and fair dealing and good faith. c. A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the Parties. An agent is not obligated to reveal to either Party any confidential information obtained from the other Party which does not involve the affirmative duties set forth above.

(ii)       Lessee’s Agent. An agent can agree to act as agent for the Lessee only. In these situations, the agent is not the Lessor’s agent, even if by agreement the agent may receive compensation for services rendered, either in full or in part from the Lessor. An agent acting only for a Lessee has the following affirmative obligations. To the Lessee: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Lessee. To the Lessee and the Lessor: a. Diligent exercise of reasonable skills and care in performance of the agent’s duties. b. A duty of honest and fair dealing and good faith. c. A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the Parties. An agent is not obligated to reveal to either Party any confidential Information obtained from the other Party which does not involve the affirmative duties set forth above.

(iii)       Agent Representing Both Lessor and Lessee. A real estate agent, either acting directly or through one or more associate licenses, can legally be the agent of both the Lessor and the Lessee in a transaction, but only with the knowledge and consent of both the Lessor and the Lessee. In a dual agency situation, the agent has the following affirmative obligations to both the Lessor and the Lessee: a. A fiduciary duty of utmost care, integrity, honesty and loyalty in the dealings with either Lesser or the Lessee. b. Other duties to the Lessor and the Lessee as stated above in subparagraphs (i) or (ii). In representing both Lessor and Lessee, the agent may not without the express permission of the respective Party, disclose to the other Party that the Lessor will accept rent in an amount less than that indicated in the listing or that the Lessee is willing to pay a higher rent than that offered. The above duties of the agent in a real estate transaction do not relieve a Lessor or Lessee from the responsibility to protect their own interests. Lessor and Lessee should carefully read all agreements to assure that they adequately express their understanding of the transaction. A real estate agent is a person qualified to advise about real estate. If legal or tax advise Is desired, consult a competent professional.

(b)      Brokers have no responsibility with respect to any default or breach hereof by either Party. The Parties agree that no lawsuit or other legal proceeding involving any breach of duty, error or omission relating to this Lease may be brought against Broker more than one year after the Start Date and that the liability (including court costs and attorneys’ fees), of any Broker with respect to any such lawsuit and/or legal proceeding shall not exceed the fee received by such Broker pursuant to this Lease; provided, however, that the foregoing limitation on each Broker’s liability shall not be applicable to any gross negligence or willful misconduct of such Broker.

(c)      Lessor and Lessee agree to identify to Brokers as “Confidential” any communication or information given Brokers that is considered by such Party to be confidential.

26.             No Right To Holdover . Lessee has no right to retain possession of the Premises or any part thereof beyond the expiration or termination of this Lease. In the event that Lessee holds over, then the Base Rent shall be increased to 150% of the Base Rent applicable immediately preceding the expiration or termination. Holdover Base Rent shall be calculated on a monthly bases. Nothing contained herein shall be construed as consent by Lessor to any holding over by Lessee.

27.             Cumulative Remedies . No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.

28.             Covenants and Conditions ; Construction of Agreement . All provisions of this Lease to be observed or performed by Lessee are both covenants and conditions. In construing this Lease, all headings and titles are for the convenience of the Parties only and shall not be considered a part of this Lease. Whenever required by the context, the singular shall include the plural and vice versa. This Lease shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it.

29.             Binding Effect; Choice of Law . This Lease shall be binding upon the Parties, their personal representatives, successors and assigns and be governed by the laws of the State in which the Premises are located. Any litigation between the Parties hereto concerning this Lease shall be initiated and maintained in the county in which the Premises are located.

30.       Subordination; Attornment; Non-Disturbance.

30.1       Subordination . This Lease and any Option granted hereby shall be subject and subordinate to any ground lease, mortgage, deed of trust, or other hypothecation or security device (collectively, “ Security Device ”), now or hereafter placed upon the Premises, to any and all advances made on the security thereof, and to all renewals, modifications, and extensions thereof. Lessee agrees that the holders of any such Security Devices (in this Lease together referred to as “ Lender ”) shall have no liability or obligation to perform any of the obligations of Lessor under this Lease. Any Lender may elect to have this Lease and/or any Option granted hereby superior to the lien of its Security Device by giving written notice thereof to Lessee, whereupon this Lease and such Options shall be deemed prior to such Security Device, notwithstanding the relative dates of the documentation or recordation thereof.

30.2       Attornment . In the event that Lessor transfers title to the Premises, or the Premises are acquired by another upon the foreclosure or termination of a Security Device to which this Lease is subordinated (i) Lessee shall, subject to the non-disturbance provisions of Paragraph 30.3, attorn to such new owner, and upon request, enter into a new lease, containing all of the terms and provisions of this Lease, with such new owner for the remainder of the term hereof, or, at the election of the new owner, this Lease will automatically become a new lease between Lessee and such new owner, and (ii) Lessor shall thereafter be relieved of any further obligations hereunder and such new owner shall assume all of Lessor’s obligations, except that such new owner shall not: (a) be liable for any act or omission of any prior lessor or with respect to events occurring prior to acquisition of ownership; (b) be subject to any offsets or defenses which Lessee might have against any prior lessor, (c) be bound by prepayment of more than one month’s rent, or (d) be liable for the return of any security deposit paid to any prior lessor which was not paid or credited to such new owner.

30.3       Non-Disturbance . With respect to Security Devices entered into by Lessor after the execution of this Lease, Lessee’s subordination of this Lease shall be subject to receiving a commercially reasonable non-disturbance agreement (a “ Non-Disturbance Agreement ”) from the Lender which Non-Disturbance Agreement provides that Lessee’s possession of the Premises, and this Lease, including any options to extend the term hereof, will not be disturbed so long as Lessee is not in Breach hereof and attorns to the record owner of the Premises. Further, within 60 days after the execution of this Lease, Lessor shall, if requested by Lessee, use its commercially reasonable efforts to obtain a Non-Disturbance Agreement from the holder of any pre-existing Security Device which is secured by the Premises. In the event that Lessor is unable to provide the Non-Disturbance Agreement within said 60 days, then Lessee may, at Lessee’s option, directly contact Lender and attempt to negotiate for the execution and delivery of a Non-Disturbance Agreement.

 

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30.4       Self-Executing . The agreements contained in this Paragraph 30 shall be effective without the execution of any further documents; provided, however, that, upon written request from Lessor or a Lender in connection with a sale, financing or refinancing of the Premises, Lessee and Lessor shall execute such further writings as may be reasonably required to separately document any subordination, attornment and/or Non-Disturbance Agreement provided for herein.

31.             Attorneys’ Fees . If any Party or Broker brings an action or proceeding involving the Premises whether founded in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys’ fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding is pursued to decision or judgment. The term, “ Prevailing Party ” shall include, without limitation, a Party or Broker who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the other Party or Broker of its claim or defense. The attorneys’ fees award shall not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse all attorneys’ fees reasonably incurred. In addition, Lessor shall be entitled to attorneys’ fees, costs and expenses incurred in the preparation and service of notices of Default and consultations in connection therewith, whether or not a legal action is subsequently commenced in connection with such Default or resulting Breach ($200 is a reasonable minimum per occurrence for such services and consultation).

32.             Lessor’s Access ; Showing Premises; Repairs . Lessor and Lessor’s agents shall have the right to enter the Premises at any time, in the case of an emergency, and otherwise at reasonable times after reasonable prior notice for the purpose of showing the same to prospective purchasers, lenders, or tenants, and making such alterations, repairs, improvements or additions to the Premises as Lessor may deem necessary or desirable and the erecting, using and maintaining of utilities, services, pipes and conduits through the Premises and/or other premises as long as there Is no material adverse effect on Lessee’s use of the Premises. All such activities shall be without abatement of rent or liability to Lessee.

33.             Auctions . Lessee shall not conduct, nor permit to be conducted, any auction upon the Premises without Lessor’s prior written consent. Lessor shall not be obligated to exercise any standard of reasonableness in determining whether to permit an auction.

34.             Signs . (a) Lessor may place on the Premises ordinary “For Sale” signs at any time and ordinary “For Lease” signs during the last 6 months of the term hereof. Lessor may not place any sign on the exterior of the Building that covers any of the windows of the Premises. Except for ordinary “For Sublease” signs which may be placed only on the Premises , Lessee shall not place any sign upon the Project without Lessor’s prior written consent. All signs must comply with all Applicable Requirements, (b) Lesser, at Lessor’s expense, shall be entitled to Building standard signage In the Building entrance lobby and Premises door.

35.             Termination; Merger . Unless specifically stated otherwise in writing by Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual termination or cancellation hereof, or a termination hereof by Lessor for Breach by Lessee, shall automatically terminate any sublease or lesser estate In the Premises; provided, however, that Lessor may elect to continue any one or all existing subtenancies. Lessor’s failure within 10 days following any such event to elect to the contrary by written notice to the holder of any such lesser interest, shall constitute Lessor’s election to have such event constitute the termination of such interest.

36.             Consents . Except as otherwise provided herein, wherever in this Lease the consent of a Party is required to an act by or for the other Party, such consent shall not be unreasonably withheld or delayed. Lessor’s actual reasonable costs and expenses (Including but not limited to architects’, attorneys’, engineers’ and other consultants’ fees) incurred in the consideration of, or response to, a request by Lessee for any Lessor consent, including but not limited to consents to an assignment, a subletting or the presence or use of a Hazardous Substance, shall be paid by Lessee upon receipt of an invoice and supporting documentation therefor. Lessor’s consent to any act, assignment or subletting shall not constitute an acknowledgment that no Default or Breach by Lessee of this Lease exists, nor shall such consent be deemed a waiver of any then existing Default or Breach, except as may be otherwise specifically stated in writing by Lessor at the time of such consent. The failure to specify herein any particular condition to Lessor’s consent shall not preclude the imposition by Lessor at the time of consent of such further or other conditions as are then reasonable with reference to the particular matter for which consent is being given. In the event that either Party disagrees with any determination made by the other hereunder and reasonably requests the reasons for such determination, the determining party shall furnish its reasons in writing and in reasonable detail within 10 business days following such request.

37,             Guarantor.

37.1       Execution . The Guarantors, if any, shall each execute a guaranty in the form most resently published by the AIR Commercial Real Estate Association.

37.2       Default . It shall constitute a Default of the Lessee if any Guarantor fails or refuses, upon request to provide: (a) evidence of the execution of the guaranty, including the authority of the party signing on Guarantor’s behalf to obligate Guarantor, and in the case of a corporate Guarantor, a certified copy of a resolution of its board of directors authorizing the making of such guaranty, (b) current financial statements, (c) an Estoppel Certificate, or (d) written confirmation that the guaranty is still in effect.

38.             Quiet Possession . Subject to payment by Lessee of the Rent and performance of all of the covenants, conditions and provisions on Lessee’s part to be observed and performed under this Lease, Lessee shall have quiet possession and quiet enjoyment of the Premises during the term hereof.

39.             Options . If Lessee is granted any Option, as defined below, then the following provisions shall apply.

39.1       Definition . “ Option ” shall mean: (a) the right to extend or reduce the term of or renew this Lease or to extend or reduce the term of or renew any lease that Lessee has on other property of Lessor; (b) the right of first refusal or first offer to lease either the Premises or other property of Lessor; (c) the right to purchase, the right of first offer to purchase or the right of first refusal to purchase the Premises or other property of Lessor.

39.2       Options Personal To Original Lessee . Any Option granted to Lessee in this Lease is personal to the original Lessee, and cannot be assigned or exercised by anyone other than said original Lessee and only while the original Lessee is in full possession of the Premises and, if requested by Lessor, with Lessee certifying that Lessee has no intention of thereafter assigning or subletting.

39.3       Multiple Options . In the event that Lessee has any multiple Options to extend or renew this Lease, a later Option cannot be exercised unless the prior Options have been validly exercised.

39.4       Effect of Default on Options .

(a) Lessee shall have no right to exercise an Option: (i) during the period commencing with the giving of any notice of Default and continuing until said Default is cured, (ii) during the period of time any Rent is unpaid (without regard to whether notice thereof is given Lessee), (iii) during the time Lessee is in Breach of this Lease, or (iv) In the event that Lessee has been given 3 or more notices of separate Default, whether or not the Defaults are cured, during the 12 month period immediately preceding the exercise of the Option.

(b) The period of time within which an Option may be exercised shall not be extended or enlarged by reason of Lessee’s inability to exercise an Option because of the provisions of Paragraph 39.4(a).

(c) An Option shall terminate and be of no further force or effect, notwithstanding Lessee’s due and timely exercise of the Option, if, after such exercise and prior to the commencement of the extended term or completion of the purchase, (i) Lessee fails to pay Rent for a period of 30 days after such Rent becomes due (without any necessity of Lessor to give notice thereof), or (ii) if Lessee commits a Breach of this Lease.

40.             Security Measures . Lessee hereby acknowledges that the Rent payable to Lessor hereunder does not include the cost of guard service or other security measures, and that Lessor shall have no obligation whatsoever to provide same. Lessee assumes all responsibility for the protection of the Premises, Lessee, its agents and invitees and their property from the acts of third parties. In the event, however, that Lessor should elect to provide security services, then the cost thereof shall be an Operating Expense.

41.             Reservations .

(a) Lessor reserves the right: (i) to grant, without the consent or joinder of Lessee, such easements, rights and dedications that Lessor deems necessary, (ii) to cause the recordation of parcel maps and restrictions, (iii) to create and/or install new utility raceways, so long as such easements, rights, dedications, maps, restrictions, and utility raceways do not unreasonably interfere with the use of the Premises by Lessee. Lessor may also: change the name, address or title of the Building or Project upon at least 90 days prior written notice; provide and install, at Lessee’s expense, Building standard graphics on the door of the Premises and such portions of the Common Areas as Lessor shall reasonably deem appropriate; grant to any lessee the exclusive right to conduct any business as long as such exclusive right does not conflict with any rights expressly given herein; and to place such signs, notices or displays as Lessor reasonably deems necessary or advisable upon the roof, exterior of the Building or the Project or on signs in the Common Areas. Lessee agrees to sign any documents reasonably requested by Lessor to effectuate such rights. The obstruction of Lessee’s view, air, or light by any structure erected in the vicinity of the Building, whether by Lessor or third parties, shall in no way affect this Lease or impose any liability upon Lessor.

(b) Lessor also reserves the right to move Lessee to other space of comparable size in the Building or Project. Lessor must provide at least 45 days prior written notice of such move, and the new space must contain improvements of comparable quality to those contained within the Premises. Lessor shall pay the reasonable out of pocket costs that Lessee incurs with regard to such relocation, including the expenses of moving and necessary stationary revision costs. In no event, however, shall Lessor be required to pay an amount in excess of two months Base Rent. Lessee may not be relocated more than once during the term of this Lease.

(c) Lessee shall not: (i) use a representation (photographic or otherwise) of the Building or Project or their name(s) in connection with Lessee’s business; or (ii) suffer or permit anyone, except in emergency, to go upon the roof of the Building.

 

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42.             Performance Under Protest . If at any time a dispute shall arise as to any amount or sum of money to be paid by one Party to the other under the provisions hereof, the Party against whom the obligation to pay the money is asserted shall have the right to make payment “under protest” and such payment shall not be regarded as a voluntary payment and there shall survive the light on the part of said Party to institute suit for recovery of such sum. If It shall be adjudged that there was no legal obligation on the part of said Party to pay such sum or any part thereof, said Party shall be entitled to recover such sum or so much thereof as it was not legally required to pay. A Party who does not initiate suit for the recovery of sums paid “under protest” within 6 months shall be deemed to have waived its right to protest such payment.

43.             Authority;

Multiple Parties; Execution

(a) If either Party hereto is a corporation, trust, limited liability company, partnership, or similar entity, each individual executing this Lease on behalf of such entity represents and warrants that he or she is duly authorized to execute and deliver this Lease on its behalf. Each Party shall, within 30 days after request, deliver to the other Party satisfactory evidence of such authority.

(b) If this Lease is executed by more than one person or entity as “Lessee”, each such person or entity shall be jointly and severally liable hereunder. It is agreed that any one of the named Lessees shall be empowered to execute any amendment to this Lease, or other document ancillary thereto and bind all of the named Lessees, and Lessor may rely on the same as if all of the named Lessees had executed such document.

(c) This Lease may be executed by the Parties in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.

44.             Conflict . Any conflict between the printed provisions of this Lease and the typewritten or handwritten provisions shall be controlled by the typewritten or handwritten provisions.

45.             Offer . Preparation of this Lease by either party or their agent and submission of same to the other Party shall not be deemed an offer to lease to the other Party. This Lease is not intended to be binding until executed and delivered by all Parties hereto.

46.             Amendments . This Lease may be modified only in writing, signed by the Parties in interest at the time of the modification. As long as they do not materially change Lessee’s obligations hereunder, Lessee agrees to make such reasonable nonmonetary modifications to this Lease as may be reasonably required by a Lender in connection with the obtaining of normal financing or refinancing of the Premises.

47.            Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING INVOLVING THE PROPERTY OR ARISING OUT OF THIS AGREEMENT.

48.             Arbitration of Disputes . An Addendum requiring the Arbitration of all disputes between the Parties and/or Brokers arising out of this Lease þ is ¨ is not attached to this Lease.

49.             Accessibility;

Americans with Disabilities Act.

(a) The Premises: ¨ have not undergone an inspection by a Certified Access Specialist (CASp). ¨ have undergone an inspection by a Certified Access Specialist (CASp) and it was determined that the Premises met all applicable construction-related accessibility standards pursuant to California Civil Code §55.51 et seq. ¨ have undergone an inspection by a Certified Access Specialist (CASp) and it was determined that the Premises did not meet all applicable construction-related accessibility standards pursuant to California Civil Code §55.51 et seq.

(b) Since compliance with the Americans with Disabilities Act (ADA) is dependent upon Lessee’s specific use of the Premises, Lessor makes no warranty or representation as to whether or not the Premises comply with ADA or any similar legislation. In the event that Lessee’s use of the Premises requires modifications or additions to the Premises in order to be in ADA compliance, Lessee agrees to make any such necessary modifications and/or additions at Lessee’s expense.

LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.

ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AIR COMMERCIAL REAL ESTATE ASSOCIATION OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:

1.             SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.

2.             RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING AND SIZE OF THE PREMISES, THE STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT AND THE SUITABILITY OF THE PREMISES FOR LESSEE’S INTENDED USE.

WARNING: IF THE PREMISES ARE LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN PROVISIONS OF THE LEASE MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OF THE STATE IN WHICH THE PREMISES ARE LOCATED.

50. Lessee shall be responsible for Janitorial, within the Premises and payment for all the utilities serving the Premises to include Lessee’s pro-rated share of gas, and electric (metered In conjunction with Suite 203) and prorated water and garbage pick-up.

51. Lessee shall provide Lessor with financial statements within fifteen (15) days upon Lessor’s written request. however such request shall occur no more than once per calendar year.

The parties hereto have executed this Lease at the place and on the dates specified above their respective signatures.

Executed at:     OAKLAND, CA                                                                                            

Executed at:                 OAKLAND, CA                                                                              

On:           10-19-15                                                                                                             

 

On:                                        10/19/15                                                                                

By LESSOR:

 

By LESSEE:

1007 Clay Street Properties LLC

 

J.A. Cosmetics US, Inc. a Delaware

 

 

Corporation

By:  LOGO

 

By: LOGO

Name Printed: B. Reid Settlemier                            

 

Name Printed:   TARANG P. AMIN                            

Title:   Managing Member                                          

 

Title:    Chairman & CEO                                         

By:                                                                                                                                              

 

By:                                                                                                                                                

Name Printed:                                                                                                                            

 

Name Printed:                                                                                                                            

Title:                                                                                                                                            

 

Title:                                                                                                                                            

Address:                                                                                                                                      

 

Address:                                                                                                                                      

 

 

 

 

 

 

Telephone:  (                                                                                                                               

 

Telephone:  (                                                                                                                               

Facsimile:  (                                                                                                                                 

 

Facsimile:  (                                                                                                                                 

Email:                                                                                                                                            

 

Email:                                                                                                                                            

Email:                                                                                                                                            

 

Email:                                                                                                                                            

 

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Federal ID No.                                                                                                              Federal ID No.                                                                                                           

 

   

LESSOR’S BROKER:

   

LESSEE’S BROKER:

Colliers International

   

Colliers International

Attn:                                                                                                            

   

Attn:                                                                                                        

Address:                                                                                                  

   

Address:                                                                                              

       

Telephone:                                                                                               

   

Telephone:                                                                                               

Facsimile:                                                                                                   

   

Facsimile:                                                                                               

Email:                                                                                                      

   

Email:                                                                                                  

Broker/Agent BRE License #:                                                              

   

Broker/Agent BRE License #:                                                              

 

   

 

 

   

 

NOTICE: These forms are often modified to meet changing requirements of law and industry needs. Always write or call to make sure you are utilizing the most current form: AIR Commercial Real Estate Association, 500 N Brand Blvd, Suite 900, Glendale, CA 91203.

Telephone No. (213) 687-8777. Fax No.: (213) 687-8616.

© Copyright 1999-By AIR Commercial Real Estate Association.

All rights reserved.

No part of these works may be reproduced in any form without permission in writing.

 

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LOGO

RULES AND REGULATIONS FOR

STANDARD OFFICE LEASE

Dated: October 5, 2015                                                                                            

By and Between 1007 Clay Street Properties LLC (“Lessor”) and J .A. Cosmetics US, Inc. a             

Delaware corporation (“Lessee”)                                                                                                       

GENERAL RULES

1.    Lessee shall not suffer or permit the obstruction of any Common Areas, including driveways, walkways and stairways.

2.     Lessor reserves the right to refuse access to any persons Lessor in good faith judges to be a threat to the safety and reputation of the Project and its occupants.

3.     Lessee shall not make or permit any noise or odors that annoy or interfere with other lessees or persons having business within the Project.

4.     Lessee shall not keep animals or birds within the Project, and shall not bring bicycles, motorcycles or other vehicles into areas not designated as authorized for same.

5.     Lessee shall not make, suffer or permit litter except in appropriate receptacles for that purpose.

6.     Lessee shall not alter any lock or install new or additional locks or bolts.

7.     Lessee shall be responsible for the inappropriate use of any toilet rooms, plumbing or other utilities. No foreign substances of any kind are to be inserted therein.

8.     Lessee shall not deface the walls, partitions or other surfaces of the Premises or Project.

9.     Lessee shall not suffer or permit anything in or around the Premises or Building that causes excessive vibration or floor loading in any part of the Project.

10.  Furniture, significant freight and equipment shall be moved Into or out of the building only with the Lessor’s knowledge and consent, and subject to such reasonable limitations, techniques and timing, as may be designated by Lessor. Lessee shall be responsible for any damage to the Office Building Project arising from any such activity.

11.  Lessee shall not employ any service or contractor for services or work to be performed in the Building, except as approved by Lessor.

12.  Lessor reserves the right to close and lock the Building on Saturdays, Sundays and Building Holidays, and on other days between the hours of 6:00              P.M. and 7:00              A.M. of the following day. If Lessee uses the Premises during such periods, Lessee shall be responsible for securely locking any doors it may have opened for entry.

13.  Lessee shall return all keys at the termination of its tenancy and shall be responsible for the cost of replacing any keys that are lost.

14.  No window coverings, shades or awnings shall be installed or used by Lessee , other than those approved of the Lessor.

15.  No Lessee, employee or invitee shall go upon the roof of the Building.

16.  Lessee shall not suffer or permit smoking or carrying of lighted cigars or cigarettes in areas reasonably designated by Lessor or by applicable governmental agencies as non-smoking areas.

17.  Lessee shall not use any method of heating or air conditioning other than as provided by Lessor.

18.  Lessee shall not install, maintain or operate any vending machines upon the Premises without Lessor’s written consent.

19.  The Premises shall not be used for lodging or manufacturing, cooking or food preparation.

20.  Lessee shall comply with all safety, fire protection and evacuation regulations established by Lessor or any applicable governmental agency.

21.  Lessor reserves the right to waive any one of these rules or regulations, and/or as to any particular Lessee, and any such waiver shall not constitute a waiver of any other rule or regulation or any subsequent application thereof to such Lessee.

22.  Lessee assumes all risks from theft or vandalism and agrees to keep its Premises locked as may be required.

23.  Lessor reserves the right to make such other reasonable rules and regulations as it may from time to time deem necessary for the appropriate operation and safety of the Project and its occupants. Lessee agrees to abide by these and such rules and regulations.

PARKING RULES

        1.    Parking areas shall be used only for parking by vehicles no longer than full size, passenger automobiles herein called “Permitted Size Vehicles.” Vehicles other than Permitted Size Vehicles are herein referred to as “Oversized Vehicles.”

        2.     Lessee shall not permit or allow any vehicles that belong to or are controlled by Lessee or Lessee’s employees, suppliers, shippers, customers, or invitees to be loaded, unloaded, or parked in areas other than these designated by Lessor for such activities,

        3.    Parking stickers or identification devices shall be the property of Lessor and be returned to Lessor by the holder thereof upon termination of the holder’s parking privileges. Lessee will pay such replacement charge as is reasonably established by Lessor for the lose of such devices.

        4.    Lessor reserves the right to refuse the sale of monthly identification devices to any person or entity that willfully refuses to comply with the applicable rules, regulations, laws and/or agreements.

        5.    Lessor reserves the right to relocate all or a part of parking spaces from floor to floor, within one floor, and/or to reasonably adjacent offsite location(s), and to reasonably allocate them between compact and standard size spaces, as long as the same complies with applicable laws, ordinances and regulations.

        6.    Users of the parking area will obey all posted signs and park only in the areas designated for vehicle parking.

        7.    Unless otherwise instructed, every person using the parking area is required to park and lock his own vehicle. Lessor will not be responsible for any damage to vehicles, injury to persons or lose of property, all of which risks are assumed by the party using the parking area.

        8.    Validation, if established, will be permissible only by such method or methods as Lessor and/or its licences may establish at rates generally applicable to visitor parking.

        9.    The maintenance, washing, waxing or cleaning of vehicles in the parking structure or Common Areas is prohibited.

        10.    Lessee shall be responsible for seeing that all of its employees, agents and invitees comply with the applicable parking rules, regulations, laws and agreements.

        11.    Lesser reserves the right to modify these rules and/or adopt such other reasonable and non-discriminatory rules and regulations as it may deem necessary for the proper operation of the parking area.

        12.    Such parking use as is herein provided is intended merely as a license only and no bailment is intended or shall be created hereby.

NOTICE: These forms are often modified to meet changing requirements of law and industry needs. Always write or call to make sure you are utilizing the most current form: AIR Commercial Real Estate Association, 500 N Brand Blvd, Suite 900, Glendale, CA 91203.

Telephone No. (213) 687-8777. Fax No.: (213) 687-8616.

 

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LOGO

ARBITRATION AGREEMENT

Standard Lease Addendum

 

Dated          October 5, 2015
By and Between (Lessor)    

1007 Clay Street Properties LLC

   
(Lessee)    

J. A. Cosmetics US, Inc. a Delaware Corporation

   
Address of Premises:    

570 10th Street, Suite 202

 

Oakland, CA 94607

Paragraph 52        

 

A.

ARBITRATION OF DISPUTES:

Except as provided in Paragraph B below, the Parties agree to resolve any and all claims, disputes or disagreements arising under this Lease, including, but not limited to any matter relating to Lessor’s failure to approve an assignment, sublease or other transfer of Lessee’s interest in the Lease under Paragraph 12 of this Lease, any other defaults by Lessor, or any defaults by Lessee by and through arbitration as provided below and irrevocably waive any and all rights to the contrary. The Parties agree to at all times conduct themselves in strict, full, complete and timely accordance with the terms hereof and that any attempt to circumvent the terms of this Arbitration Agreement shall be absolutely null and void and of no force or effect whatsoever.

 

B.

DISPUTES EXCLUDED FROM ARBITRATION:

The following claims, disputes or disagreements under this Lease are expressly excluded from the arbitration procedures set forth herein: 1. Disputes for which a different resolution determination is specifically set forth in this Lease, 2. All claims by either party which (a) seek anything other than enforcement or determination of rights under this Lease, or (b) are primarily founded upon matters of fraud, willful misconduct, bad faith or any other allegations of tortious action, and seek the award of punitive or exemplary damages, 3. Claims relating to (a) Lessor’s exercise of any unlawful detainer rights pursuant to applicable law or (b) rights or remedies used by Lessor to gain possession of the Premises or terminate Lessee’s right of possession to the Premises, all of which disputes shall be resolved by suit filed in the applicable court of jurisdiction, the decision of which court shall be subject to appeal pursuant to applicable law 4. Any claim or dispute that is within the jurisdiction of the Small Claims Court and 5. All claims arising under Paragraph 39 of this Lease.

 

C.

APPOINTMENT OF AN ARBITRATOR:

All disputes subject to this Arbitration Agreement, shall be determined by binding arbitration before: ¨ a retired judge of the applicable court of jurisdiction (e.g., the Superior Court of the State of California) affiliated with Judicial Arbitration & Mediation Services, Inc. (“JAMS”), þ   the American Arbitration Association (“AAA”) under its commercial arbitration rules, ¨                                                                                                                                                                                                                                                                                                                                                                                  , or as may be otherwise mutually agreed by Lessor and Lessee (the “Arbitrator”). In the event that the parties elect to use an arbitrator other than one affiliated with JAMS or AAA then such arbitrator shall be obligated to comply with the Code of Ethics for Arbitrators in Commercial Disputes (see: http://www.adr.org/aaa/ShowProperty?nodeld=/UCM/ADRSTG 003867 ). Such arbitration shall be initiated by the Parties, or either of them, within ten (10) days after either party sends written notice (the “Arbitration Notice”) of a demand to arbitrate by registered or certified mail to the other party and to the Arbitrator. The Arbitration Notice shall contain a description of the subject matter of the arbitration, the dispute with respect thereto, the amount involved, if any, and the remedy or determination sought. If the Parties have agreed to use JAMS they may agree on a retired judge from the JAMS panel. If they are unable to agree within ten days, JAMS will provide a list of three available judges and each party may strike one. The remaining judge (or if there are two, the one selected by JAMS) will serve as the Arbitrator. If the Parties have elected to utilize AAA or some other organization, the Arbitrator shall be selected in accordance with said organization’s rules. In the event the Arbitrator is not selected as provided for above for any reason, the party initiating arbitration shall apply to the appropriate Court for the appointment of a qualified retired judge to act as the Arbitrator.

 

D.

ARBITRATION PROCEDURE:

1.             PRE-HEARING ACTIONS. The Arbitrator shall schedule a pre-hearing conference to resolve procedural matters, arrange for the exchange of information, obtain stipulations, and narrow the issues. The Parties will submit proposed discovery schedules to the Arbitrator at the pre-hearing conference. The scope and duration of discovery will be within the sole discretion of the Arbitrator. The Arbitrator shall have the discretion to order a pre-hearing exchange of Information by the Parties, including, without limitation, production of requested documents, exchange of summaries of testimony of proposed witnesses, and examination by deposition of parties and third-party witnesses. This discretion shall be exercised in favor of discovery reasonable under the circumstances. The Arbitrator shall issue subpoenas and subpoenas duces tecum as provided for in the applicable statutory or case law (e.g., in California Code of Civil Procedure Section 1282.6).

2.             THE DECISION . The arbitration shall be conducted in the city or county within which the Premises are located at a reasonably convenient site. Any Party may be represented by counsel or other authorized representative. In rendering a decision(s), the Arbitrator shall determine the rights and obligations of the Parties according to the substantive laws and the terms and previsions of this Lease. The Arbitrator’s decision shall be based on the evidence introduced at the hearing, including all logical and reasonable inferences therefrom. The Arbitrator may make any determination and/or grant any remedy or relief that is just and equitable. The decision must be based on, and accompanied by, a written statement of decision explaining the factual and legal basis for the decision as to each of the principal controverted issues. The decision shall be conclusive and binding, and it may thereafter be confirmed as a judgment by the court of applicable jurisdiction, subject only to challenge on the grounds set forth in the applicable statutory or case law (e.g., in California Code of Civil Procedure Section 1286.2). The validity and enforceability of the Arbitrator’s decision is to be determined exclusively by the court of appropriate jurisdiction pursuant to the provisions of this Lease. The Arbitrator may award costs, including without limitation, Arbitrator’s fees and costs, attorneys’ fees, and expert and witness costs, to the prevailing party, if any, as determined by the Arbitrator in his discretion.

Whenever a matter which has been submitted to arbitration involves a dispute as to whether or not a particular act or omission (other than a failure to pay money) constitutes a Default, the time to commence or cease such action shall be tolled from the date that the Notice of Arbitration is served through and until the date the Arbitrator renders his or her decision. Provided, however, that this provision shall NOT apply in the event that the Arbitrator determines that the Arbitration Notice was prepared in bad faith.

 

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Whenever a dispute arises between the Parties concerning whether or not the failure to make a payment of money constitutes a default, the service of an Arbitration Notice shall NOT toll the time period in which to pay the money. The Party allegedly obligated to pay the money may, however, elect to pay the money “under protest” by accompanying said payment with a written statement setting forth the reasons for such protest. If thereafter, the Arbitrator determines that the Party who received said money was not entitled to such payment, said money shall be promptly returned to the Party who paid such money under protest together with Interest thereon as defined in Paragraph 13.5. If a Party makes a payment “under protest” but no Notice of Arbitration is filed within thirty days, then such protest shall be deemed waived. (See also Paragraph 42 or 43)

NOTICE: These forms are often modified to meet changing requirements of law and industry needs. Always write or call to make sure you are utilizing the most current form: AIR Commercial Real Estate Association, 500 N Brand Blvd, Suite 900, Glendale, CA 91203.

Telephone No. (213) 687-8777. Fax No.: (213) 687-8616.

 

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LOGO

OPTION(S) TO EXTEND

STANDARD LEASE ADDENDUM

Dated                                                                   October 5, 2015                                          

By and Between (Lessor) 1007 Clay Street Properties LLC                                                    

 

                                                                                                          

By and Between (Lessee) J.A. Cosmetics US, Inc., a Delaware                                        

corporation                                                                                      

Address of Premises: 570 10th Street, Suite 202                                                              

Oakland, CA                                                                                              

Paragraph 53        

A.     OPTION(S) TO EXTEND:

Lessor hereby grants to Lessee the option to extend the term of this Lease for One (1)                  additional Forty Four (44) month period(s) commencing when the prior term expires upon each and all of the following terms and conditions:

(i)     In order to exercise an option to extend, Lessee must give written notice of such election to Lessor and Lessor must receive the same at least      9      but not more than      12      months prior to the date that the option period would commence, time being of the essence. If proper notification of the exercise of an option is not given and/or received, such option shall automatically expire. Options (if there are more than one) may only be exercised consecutively.

(ii)     The provisions of paragraph 39, including those relating to Lessee’s Default set forth in paragraph 39.4 of this Lease, are conditions of this Option.

(iii)    Except for the provisions of this Lease granting an option or options to extend the term, all of the terms and conditions of this Lease except where specifically modified by this option shall apply.

(iv)     This Option is personal to the original Lessee, and cannot be assigned or exercised by anyone other than said original Lessee and only while the original Lessee is in full possession of the Premises and without the intention of thereafter assigning or subletting.

(v)     The monthly rent for each month of the option period shall be calculated as follows, using the method(s) indicated below: (Check Method(s) to be Used and Fill in Appropriately)

 

¨

I.     Cost of Living Adjustment(s) (COLA)

a.     On (Fill in COLA Dates):                                                                                                                                                                                         

 

 

the Base Rent shall be adjusted by the change, if any, from the Base Month specified below, in the Consumer Price Index of the Bureau of Labor Statistics of the U.S. Department of Labor for (select one): ¨ CPI W (Urban Wage Earners and Clerical Workers) or ¨ CPI U (All Urban Consumers), for (Fill in Urban Area):

 

 

All Items (1982-1984 = 100), herein referred to as “CPI”.

b.     The monthly Base Rent payable in accordance with paragraph A.I.a. of this Addendum shall be calculated as follows: the Base Rent set forth in paragraph 1.5 of the attached Lease, shall be multiplied by a fraction the numerator of which shall be the CPI of the calendar month 2 months prior to the month(s) specified in paragraph A.l.a. above during which the adjustment is to take effect, and the denominator of which shall be the CPI of the calendar month which is 2 months prior to (select one): ¨ the first month of the term of this Lease as set forth in paragraph 1.3 (“Base Month”) or ¨ (Fill in Other “Base Month”):

 

 

The sum so calculated shall constitute the new monthly Base Rent hereunder, but in no event, shall any such new monthly Base Rent be less than the Base Rent payable for the month immediately preceding the rent adjustment.

c.     In the event the compilation and/or publication of the CPI shall be transferred to any other governmental department or bureau or agency or shall be discontinued, then the index most nearly the same as the CPI shall be used to make such calculation. In the event that the Parties cannot agree on such alternative index, then the matter shall be submitted for decision to the American Arbitration Association in accordance with the then rules of said Association and the decision of the arbitrators shall be binding upon the parties. The cost of said Arbitration shall be paid equally by the Parties.

 

þ

II.     Market Rental Value Adjustment(s) (MRV)

a.     On (Fill in MRV Adjustment Date(s)) The date is the first of the month following Sixty-Two (62) months from the Commencement date.                                           the Base Rent shall be adjusted to the “Market Rental Value” of the property as follows:

1) Four months prior to each Market Rental Value Adjustment Date described above, the Parties shall attempt to agree upon what the new MRV will be on the adjustment date. If agreement cannot be reached, within thirty days, then:

(a) Lessor and Lessee shall immediately appoint a mutually acceptable appraiser or broker to establish the new MRV within the next 30 days. Any associated costs will be split equally between the Parties, or

 

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(b) Both Lessor and Lessee shall each immediately make a reasonable determination of the MRV and submit such determination, in writing, to arbitration in accordance with the following provisions:

(i) Within 15 days thereafter, Lessor and Lessee shall each select an ¨ appraiser or ¨ broker (“ Consultant ” - check one) of their choice to act as an arbitrator. The two arbitrators so appointed shall immediately select a third mutually acceptable Consultant to act as a third arbitrator.

(ii) The 3 arbitrators shall within 30 days of the appointment of the third arbitrator reach a decision as to what the actual MRV for the Premises is, and whether Lessor’s or Lessee’s submitted MRV is the closest thereto. The decision of a majority of the arbitrators shall be binding on the Parties. The submitted MRV which is determined to be the closest to the actual MRV shall thereafter be used by the Parties.

(iii) If either of the Parties fails to appoint an arbitrator within the specified 15 days, the arbitrator timely appointed by one of them shall reach a decision on his or her own, and said decision shall be binding on the Parties.

(iv) The entire cost of such arbitration shall be paid by the party whose submitted MRV is not selected, ie. the one that is NOT the closest to the actual MRV.

2) When determining MRV, the Lessor, Lessee and Consultants shall consider the terms of comparable market transactions which shall include, but not limited to, rent, rental adjustments, abated rent, lease term and financial condition of tenants.

                 3) Notwithstanding the foregoing, the new Base Rent shall not be less than the rent payable for the month immediately preceding the rent adjustment.

 

  b.

Upon the establishment of each New Market Rental Value:

1) the new MRV will become the new “Base Rent” for the purpose of calculating any further Adjustments, and

2) the first month of each Market Rental Value term shall become the new “Base Month” for the purpose of calculating any further Adjustments.

 

¨

III.     Fixed Rental Adjustment(s) (FRA)

The Base Rent shall be increased to the following amounts on the dates set forth below:

 

On (Fill in FRA Adjustment Date(s)):         The New Base Rent shall be:
         
         
         
         
         
         
         
         
         
         

 

¨

IV.     Initial Term Adjustments.

The formula used to calculate adjustments to the Base Rate during the original Term of the Lease shall continue to be used during the extended term.

 

B.

NOTICE:

Unless specified otherwise herein, notice of any rental adjustments, other than Fixed Rental Adjustments, shall be made as specified in paragraph 23 of the Lease.

C.     BROKER’S FEE:

                    The Brokers shall be paid a Brokerage Fee for each adjustment specified above in accordance with paragraph 15 of the Lease or if applicable, paragraph 9 of the Sublease.

NOTICE: These forms are often modified to meet changing requirements of law and industry needs. Always write or call to make sure you are utilizing the most current form: AIR Commercial Real Estate Association, 500 N Brand Blvd, Suite 900, Glendale, CA 91203.

Telephone No. (213) 687-8777. Fax No.: (213) 687-8616.

 

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Exhibit 10.4

Addendum to Standard Multi-Tenant Office Lease - Gross

This Addendum to Standard Multi-Tenant Office Lease - Gross (this “ Addendum ”) is made and entered into by and between 1007 Clay Street Properties LLC, a California limited liability company (“ Lessor ”) and J.A. Cosmetics US, Inc., a Delaware corporation (“ Lessee ”), and is dated as of the date set forth on the first page of the Standard Multi-Tenant Office Lease - Gross between Lessor and Lessee (the “ Base Lease ”) to which this Addendum is attached. The Lease covers certain premises located at 570 10th Street in Oakland, California as described in more particularity in the Base Lease (the “ Premises ”). The promises, covenants, agreements and declarations made and set forth herein are intended to and shall have the same force and effect as if set forth at length in the body of the Base Lease. To the extent that the provisions of this Addendum are inconsistent with the terms and conditions of the Base Lease, the terms and conditions of this Addendum shall control. Capitalized terms used herein and not otherwise defined shall have the meanings given those terms in the Base Lease. As used in this Addendum, the term “ Lease ” means the Base Lease as modified by this Addendum.

1. Term . Notwithstanding anything in Paragraph 1.3 of the Base Lease to the contrary, the “Commencement Date” of the Term of the Lease shall occur on the date on which (a) the Lease has been executed and delivered by Lessee and Lessor and (b) Lessor has delivered possession of the Premises to Lessee in the condition described in Paragraph 2.2 of the Base Lease, and the “Expiration Date” shall be the date that is sixty-two months thereafter. Lessor agrees to use its best commercially reasonable efforts to deliver possession of the Premises to Lessee upon mutual execution and delivery of the Lease. If, despite said efforts, Lessor is unable to deliver the Premises on such date, Lessor shall not be subject to any liability therefor, nor shall such failure affect the validity of this Lease; provided, however, that if Lessor has not delivered possession of the Premises to Lessee on or prior to the date that is ninety (90) days following the mutual execution and delivery of the Lease, Lessee shall have the right to terminate the Lease by written notice to Lessor given within ten (10) days of the expiration of such 90-day period, upon which Lessor shall promptly refund to Lessee any prepaid rent or other amounts deposited with Lessor under the terms of the Lease.

2. Rent . Notwithstanding anything to the contrary contained in the Base Lease, Lessee’s obligation to pay Rent under the Lease shall commence January 1, 2016 (the “ Rent Commencement Date ”). Commencing on the Rent Commencement Date, Lessee shall pay Base Rent as set forth below:

 

Months

   Monthly Base Rent  

Rent Commencement Date (i.e. Month 3) – Month 12

   $ 8,921.80   

Months 13 - 24

   $ 9,189.45   

Months 25 - 36

   $ 9,465.14   

Months 37 - 48

   $ 9,749.09   

Months 49 - 60

   $ 10,041.57   

Months 61 - 62

   $ 10,342.81   

 

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Lessor and Lessee acknowledge and agree that no Rent shall be due during the period commencing on the Commencement Date and ending on the date immediately prior to the Rent Commencement Date.

3. Common Area Changes and Controls . Notwithstanding anything in Paragraph 2.10 of the Lease to the contrary, Lessor shall not unreasonably interfere with Lessee’s ability to use the Premises in the exercise of Lessor’s control over the Common Areas, and shall not make any changes or take any actions that materially adversely impact Lessee’s access to the Premises, or otherwise materially adversely affect Lessee’s use of the Premises.

4. Operating Expenses . Notwithstanding anything in the Lease to the contrary, in particular Paragraph 4.2 thereof, the parties agree as follows:

(a) Exclusions . “Operating Expenses” shall expressly exclude the following: (1) any costs associated with Lessor’s maintenance and repair responsibilities that Lessor and Lessee have expressly agreed are Lessor’s sole responsibility under the Lease; (2) the cost of Lessee improvements made for new tenant(s) of the Building or Project; (3) financing or refinancing costs, including interest, principal, points and fees on debts or amortization on any mortgage or mortgages or any other debt instrument encumbering the Building or Project; (4) salaries and fringe benefits for officers, employees (above the position of Building manager) and executives; (5) any management or administrative fee in excess of amounts customarily charged by owners of comparable projects in the Oakland, California market area; (6) any ground lease rental or charges; (7) any (i) estate, inheritance, income or transfer taxes, (ii) the cost of any challenge to taxes unless such challenge results in a verifiable tax savings to Lessee, or (iii) any tax penalties assessed due to any action or inaction by Lessor or its employees, agents or contractors; (8) rentals for items (except when needed in connection with normal repairs and maintenance of permanent systems) which if purchased, rather than rented, would constitute a capital repair, replacement, improvement or equipment under generally accepted accounting principles consistently applied or otherwise; (9) costs incurred by Lessor that Lessor is or should be reimbursed for by insurance proceeds, other occupants of the Building or Project, or other third parties; (10) depreciation, amortization or interest payments; (11) marketing costs, including without limitation, leasing commissions, attorneys’ fees and other costs and expenses incurred in connection with lease, sublease and/or assignment negotiations and transactions with Lessee or present or prospective tenants or other occupants of the Building or Project; (12) costs incurred by Lessor due to the violation by Lessor or any other tenant of the terms and conditions of any lease of space in the Building or Project or costs incurred by Lessor due to a violation of laws or recorded covenants by Lessor or its employees, agents or contractors, or by any other Lessee, occupant or user of the Building or Project; (13) any cost or expenses could be classified as a capital expenses under generally accepted accounting principals consistently applied unless such cost is expressly permitted under the terms of the Lease and is amortized over the useful life thereof on a staightline basis in accordance with generally accepted accounting principals in which case Operating Expenses for a particular month shall only include the monthly amortized portion of such cost or expenses allocable to such month; (14) overhead and profit increment paid to Lessor or to subsidiaries or affiliates of Lessor for goods and/or services in or to the Building or Project to the extent the same exceeds the costs of such goods and/or services rendered by unaffiliated third parties on a competitive basis; (15) any costs incurred in connection with remedying any violations of any recorded covenants or life, fire and safety

 

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codes, ordinances, statutes or other laws, including, without limitation, the ADA (including without limitation any penalties or damages incurred due to such non compliance) which violations existed as of the Start Date; (16) costs arising from the negligence or willful misconduct of Lessor or its employees, agents, contractors or any vendors or providers of materials or services selected, hired or engaged by Lessor or its agents; (17) any and all costs arising from the presence of Hazardous Substances in or about the Premises, Building, or the Project, not placed in such by Lessee or its employees, agents or contractors, including without limitation costs incurred in connection with any environmental investigation, clean-up, response action, or remediation, and costs and expenses associated with the defense, administration, settlement, monitoring or management thereof; (18) costs (including in connection therewith all attorneys’ fees and costs of settlement judgments and payments in lieu thereof) arising from claims, disputes or potential disputes in connection with potential or actual claims litigation or arbitrations pertaining to Lessor and/or the Building or Project; (19) costs associated with the operation of the business of the partnership or entity which constitutes Lessor, including general corporate overhead, accounting and legal matters, the costs of selling, syndicating, financing, mortgaging or hypothecating any of Lessor’s interest in the Building or Project, any “in-house” legal and/or accounting fees, costs of any disputes between Lessor and its employees, agents, contractors or other third parties, or fees paid in connection with disputes with other tenants; (20) costs or expenses of utilities directly metered to tenants of the Project or Building and paid separately by such tenants; (21) any “non-standard” cleaning, including, but not limited to construction cleanup or special cleanings associated with parties/events and specific tenant requirements in excess of service provided to Lessee, including related trash collection, removal, hauling and dumping; (22) reserves of any kind; and (23) any other expenses which, in accordance with generally accepted accounting principles, consistently applied, would not normally and customarily charged as common area maintenance expenses by owners of comparable buildings in the Oakland, California market area.

(b) Determination of Operating Expenses . In determining the amount of Operating Expenses for any year (including the Base Year), if less than 95% of the rentable area of the Building or Project is occupied by tenants at any time during any such year, Operating Expenses shall be determined for such year to be an amount equal to the like expenses which would normally be expected to be incurred had such occupancy been 95% throughout the year. Furthermore, in the event that any new category of expense is added to Operating Expenses after the Base Year (for example, if Lessor did not carry earthquake insurance during the Base Year but thereafter elects to carry the same), Operating Expenses for the Base Year shall be increased by the reasonable costs of such new category of expenses had Lessor incurred such category of expense during the Base Year.

(c) Audit Right . Lessee shall have the right, at its expense and upon written notice given to Lessor no later than one hundred twenty (120) days after receipt of the annual statement showing Lessee’s share of actual Common Area Operating Expenses for the preceding year, to make an audit of all of Lessor’s bills, records, receipts, insurance certificates and policies relating to Operating Expenses for the immediately preceding calendar year. Upon such written request of Lessee, Lessor shall make available to Lessee, during normal business hours, at the location where Lessor’s books and records are kept, such information as Lessee shall reasonably request. Lessor shall cooperate with Lessee in its explanation of its bills and records. Lessee reserves the right to retain the services of an independent certified public accountant for such

 

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audit, which accountant shall not be paid by a contingent or percentage based fee. Lessee shall diligently complete any such audit of Operating Expenses and shall deliver to Lessor the written results of such audit within fifteen (15) business days after Lessee receives the same. If such audit discloses an overpayment by Lessee, Lessor shall pay such amount to Lessee within thirty (30) days. If such audit discloses a discrepancy in excess of five percent (5%), Lessor shall reimburse Lessee for the reasonable costs of the audit. If such audit discloses additional amounts due from Lessee, Lessee shall pay such amounts within fifteen (15) business days of completion of such audit. Should Lessor disagree with the results of Lessee’s audit, Lessor and Lessee shall refer the matter to a mutually acceptable independent certified public accountant, who shall work in good faith with Lessor and Lessee to resolve the discrepancy. The fees and costs of such independent accountant to which such dispute is referred shall be borne by the unsuccessful party and shall be shared pro rata to the extent each party is unsuccessful as determined by such independent certified public account, whose decision shall be final and binding.

5. Intentionally Omitted

6. Hazardous Substances . Notwithstanding anything in the Lease to the contrary, in particular Paragraph 6.2 thereof, the parties agree as follows:

(a) The term “Reportable Use” shall not include the use by Lessee of any Hazardous Substance in the ordinary course of Lessee’s business so long as such Hazardous Substances are at all times, used, handled, stored, transported and deposited in accordance with all Applicable Requirements.

(b) Lessor agrees to release Lessee from any and all claims, damages, fines, judgments, penalties, costs, liabilities, or losses (including, without limitation, any and all sums paid for settlement of claims, attorneys’ fees, consultant and expert fees) arising during or after the Lease Term from or in connection with the presence or suspected presence of Hazardous Substances or environmental damage in or on the Premises unless the Hazardous Substances are present as a result of the acts of Lessee, Lessee’s agents, employees, contractors, or invitees (the “ Lessee Parties ”). Without limitation of the foregoing this release shall include any and all costs incurred due to any investigation of the site or any cleanup, removal, or restoration mandated by a federal, state, or local agency or political subdivision, and shall specifically include any and all costs due to Hazardous Substances that flow, leach, diffuse, migrate, or percolate into, onto, or under the Premises after the Term commences. The provisions of this paragraph will survive the expiration or earlier termination of this Lease.

7. Alterations . Notwithstanding anything to the contrary contained in the Lease, including, without limitation, Paragraph 7.4(b) thereof, Lessee shall not be required to remove any Lessee Owned Alterations and/or Utility Installations unless the same were installed by Lessee during the Term and Lessor notifies Lessee that it will require removal of the same at the time Lessor consents to the same or within ten (10) days after Lessee’s notice thereof to Lessor for Lessee Owned Alterations and/or Utility Installations not requiring Lessor’s consent. Notwithstanding the foregoing or anything to the contrary in the Lease, Lessee shall not be obligated to remove any improvements.

 

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8. Indemnity and Release .

(a) Lessee’s Indemnity . Notwithstanding anything to the contrary contained in the Base Lease (including, without limitation, Paragraph 8.7 thereof), Lessee shall not be required to indemnify Lessor for any claims, damages, loss, expense, etc., arising as a result of the gross negligence or willful misconduct of Lessor or its employees, agents or contractors or Lessor’s failure to perform its Lease obligations.

(b) Lessor’s Indemnity . Except to the extent due to the negligence or willful misconduct of Lessee or its employees, agents or contractors, or Lessee’s failure to perform its obligations hereunder, Lessor agrees to protect, defend, indemnify, and hold Lessee harmless from and against any and all liabilities, claims, expenses, losses and damages (including reasonable attorney fees and costs), arising as a result of the negligent acts or omissions of Lessor or its employees, agents or contractors in on or about the Premises, or Lessor’s failure to perform its Lease obligations. The provisions of this paragraph will survive the expiration or earlier termination of this Lease.

9. Casualty . If Lessor delivers notice to Lessee that a casualty is not a Premises Total Destruction, then regardless of whether such casualty results in an Insured Loss, if the damage caused by such casualty is not fully repaired and full use of the Premises restored to Lessee within ninety (90) days of the date of the casualty, then Lessee may elect to terminate this Lease with written notice to Lessor at any time thereafter prior to the completion of such repairs and such restoration to Lessee.

10. Real Property Taxes and Exclusions . The term “Real Property Taxes” shall not include, and Lessee shall not be responsible for any (i) estate, inheritance, income or documentary transfer taxes, or (ii) any tax penalties assessed due to any action or inaction by Lessor or its employees, agents or contractors.

11. Permitted Transfers . Notwithstanding anything to the contrary in this Lease, Lessee shall have the right, without Lessor’s consent, to assign this Lease or sublet all of the Premises to (i) any person or entity who controls, is controlled by, or is under common control with the Lessee, (ii) any successor to Lessee by merger, stock purchase, consolidation or other operation of law, (iii) any entity acquiring all or substantially all of the assets of Lessee, or (iv) any person purchasing the business which Lessee conducts at the Premises (each such transfer is referred to herein as a “ Permitted Transfer ”, and the successor entity a “ Permitted Transferee ”). Lessee shall endeavor to provide Lessor with written notice of any Permitted Transfer within ten (10) days prior to the effective date thereof, together with copies of all documents evidencing such transfer, including without limitation all formation documents of the Permitted Transferee and any other documents reasonably requested by Lessor. Notwithstanding anything to the contrary contained in the Lease (including, without limitation, Paragraph 39 and the Option to Extend – Standard Lease Addendum), Lessee shall have the right to transfer to any Permitted Transferee all renewal options and other preferential rights set forth in this Lease.

12. Interruption in Use . Notwithstanding any other provision of this Lease, if the Premises (or any material portion thereof) shall be rendered untenantable or unfit for Lessee’s customary business operations as a result of (i) any defect in the Building or Project, (ii) Lessor’s failure to

 

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make any repair or perform any work that it is required to make or perform under this Lease, (iii) any interruptions in utilities or services provided to the Premises caused by the negligence or intentional acts of Lessor or its agents, employees or contractors, (iv) Lessor’s performance of any work that it is required to provide under this Lease, or (v) any other breach of, or default under, this Lease by Lessor, then in any case that such untenantability or unfitness shall continue for a period of two (2) consecutive business days, all base rent and additional rent shall abate for the period that the Prem i ses remain untenantable or unfit for Lessee’s use in a customary manner (or, in the event that only a portion of the Premises are rendered untenantable or unfit for Lessee’s use in a customary manner, base rent and additional rent shall abate for such period with respect to the portion of the Premises that are rendered untenantable or unfit).

13. Notices . Copies of any notices to Lessee under the Lease shall be simultaneously sent to the address below:

J.A. Cosmetics US, Inc.

10 West 33 rd Street, Suite 802

New York, New York 10001

Attn: General Counsel

14. Right of First Refusal . Intentionally Omitted

15. Utilities and Services . Lessee shall be responsible for janitorial services within the premises and payment directly to the applicable services providers for all separately metered utilities serving the Premises (including, without limitation, gas and electric).

16. Financial Statements . Notwithstanding anything to the contrary contained elsewhere in the Lease, within fifteen (15) days from Lessor’s written request therefore, which request shall not be given more than one (1) time during any twelve (12) month period, Lessee shall provide Lessor with copies of its most recent set of financial statements (to the extent available).

17. Work Letter . Intentionally Omitted

18. Confidentiality . Lessee and Lessor shall at all times keep any documents and information received from each other confidential, including, without limitation, any financial statements delivered pursuant to Section 16 above, except to the extent necessary to (a) comply with applicable law and regulations or court order or (b) carry out the obligations set forth in this Lease. Any such disclosure to third parties shall indicate that the information is confidential and should be so treated by the third party.

19. Right to Terminate . Provided Lessee is not in default of the Lease, Lessee shall have the one time right to terminate the Lease effective August 31, 2019 upon written notice to Lessor no later than February 28, 2019 and payment of a termination fee equal to the last six months of scheduled Base Rent payments ($60,851.90) payable as follows: 50% shall be due and payable with the termination notice and 50% shall be due and payable on August 31, 2019.

 

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20. Additional Changes to the Base Lease : The parties agree that the Base Lease is further modified as set forth below:

(a) Paragraph 2.9 . In the second sentence, “best efforts ” is deleted and replaced with “commercially reasonable efforts ”.

(b) Paragraph 4.2(f) . In the second sentence of this paragraph, the phrase “ written request (but not more than once each year)” is hereby deleted and replaced with “the end of each calendar year”.

(c) Paragraph 4.3 . The second sentence of this paragraph is hereby deleted.

(d) Paragraph 6.2(c), 6.2(d). and 7.4(c) . Where it occurs in such paragraphs, the phrase “or any third party” is deleted and replaced with “or any Lessee Parties”.

(e) Paragraph 7.3(b) . In the first sentence, the phrase “and the cumulative cost thereof during this Lease as extended does not exceed $2000” is deleted and replaced with “ and the cost thereof does not exceed $20,000 per any given project and $75,000 on a cumulative bases for all projects during the term of the Lease, as it may be extended . Furthermore, the last sentence of this paragraph is hereby deleted.

(f) Paragraph 8.2(a) . The phrase “ $2,000,000.00 per occurrence ” in the second sentence of this paragraph is replaced with the phrase “$5, 000,000.00 per occurrence . The phrase “ $3,000,000.00 ” in the second sentence of this paragraph is replaced with the phrase “ $5,000,000.00 ”. The phrase “ which amounts may be satisfied in part through an umbrella policy of insurance ” is added to the end of the second sentence of this paragraph.

(g) Paragraph 8.4(a) . The phrase “ a deductible not to exceed $1000 per occurrence” is deleted and replaced with “a deductible not to exceed $15,000 per occurrence .

(h) Paragraph 8.9 . This entire paragraph is deleted and replaced with the following: Failure to Provide Insurance. In the event that Lessee does not maintain the required insurance and/or does not provide Lessor with the required certificates evidencing the existence of the required insurance, then, subject to any applicable notice and cure periods provided in Section 13.1 of the Lease, Lessor may, but shall not be obligated to, obtain the minimum insurance required to be carried by Lessee under the Lease and Lessee shall, within ten (10) days of receipt of a reasonably detailed invoice therefor, reimburse Lessor for the actual premiums paid by Lessor for such insurance.

(i) Paragraph 9.2 . At the end of the first sentence, the phrase provided, however, that Lessee shall… for that purpose is deleted.

(j) Paragraph 9.5 . In the first sentence, the phrase “ Lessor may terminate” is deleted and replaced with “ Lessor and Lessee may terminate” and the contemplated notice shall be delivered to the Lessor or Lessee, as applicable.

(k) Paragraph 9.6(a) . At the end of the first sentence, the phrase “ but not to exceed the proceeds received from the Rental Value Insurance” is deleted.

 

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(l) Paragraphs 12.1(b) and 12.1(c) . These paragraphs are deleted.

(m) Paragraph 12.3(e) . This entire paragraph is deleted.

(n) Paragraph 13.3 . The phrase “ Upon Breach of this Lease by Lessee ” in the second sentence of this paragraph is hereby deleted and replaced with the phrase “ Upon termination of this Lease as a result of a Breach by Lessee hereunder .

(o) Paragraph 13.4 . In the third sentence of this paragraph, the phrase “ 10% ” is deleted and replaced with “ 5% .

(p) Paragraph 15.2 . This entire paragraph is deleted.

(q) Paragraph 16(b) . The third, fourth, fifth and sixth sentences in this paragraph are deleted and replaced with the following: “ Should the Lessee fail to execute and/or deliver a requested Estoppel Certificate within such ten (10)-day period, then for each day after such ten (10)-day period during which such failure continues, Lessee shall pay to Lessor a per diem penalty of $100.

(r) Paragraph 16(c) . This entire paragraph is deleted.

(s) Paragraph 25 . This entire paragraph is deleted.

(t) Paragraph 36 . The phrase “ provided such amounts shall not exceed $1,500 per request without the prior written consent of Lessee ” is added to the end of the second sentence.

(u) Paragraph 41(b) . This entire paragraph is deleted.

(v) Paragraphs 49 and 51 . These paragraphs are deleted.

Remainder of page intentionally left blank.

Signatures on following page.

 

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IN WITNESS WHEREOF, the parties have this Addendum on the respective dates set forth below.

 

LESSOR:

1007 Clay Street Properties LLC,

a California limited liability company

By:  

/s/ B. Reid Settlemier

Name:   B. Reid Settlemier
Its:   Managing Member
Date:  

10-19-15

LESSEE:

J.A. Cosmetics US, Inc.,

a Delaware corporation

By:  

/s/ Tarang P. Amin

Name:   Tarang P. Amin
Its:   Chairman & CEO
Date:  

10-22-15

 

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Exhibit 10.5

AIR COMMERCIAL REAL ESTATE ASSOCIATION

STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT LEASE - NET

1. Basic Provisions (“Basic Provisions”) .

1.1 Parties: This Lease (“Lease”) , dated for reference purposes only December 9, 2015 , is made by and between JURUPA GATEWAY LLC, a Delaware limited liability company ( “Lessor” ) and J.A. COSMETICS US, INC., a Delaware corporation, ( “Lessee” ), (collectively the “Parties” , or individually a “Party” ).

1.2 (a) Premises: That certain portion of the Project (as defined below), including all improvements therein or to be provided by Lessor under the terms of this Lease, commonly known by the street address of 5685 Jurupa Street , located in the City of Ontario , County of San Bernardino , State of California , with zip code                      , as outlined on Exhibit A attached hereto (“Premises”) and generally described as (describe briefly the nature of the Premises): an approximately 212,668 square foot portion of an approximately 615,640 square foot concrete tilt-up building .

In addition to Lessee’s rights to use and occupy the Premises as hereinafter specified, Lessee shall have non-exclusive rights to any utility raceways of the building containing the Premises (“ Building ”) and to the common Areas (as defined in Paragraph 2.7 below), but shall not have any rights to the roof or exterior walls of the Building or to any other buildings in the Project. The Premises, the Building, the Common Areas, the land upon which they are located, along with all other buildings and improvements thereon, are herein collectively referred to as the “Project.” (See also Paragraph 2)

1.2 (b) Parking: See Paragraph 2.6 unreserved vehicle parking spaces. (See also Paragraph 2.6)

1.3 Term: Five (5)  years and three (3)  months (“Original Term”) commencing March 1, 2016 (“Commencement Date”) and ending May 31, 2021 (“Expiration Date”) . (See also Paragraph 3)

1.4 Early Possession: SEE PARAGRAPH 52. If the Premises are available Lessee may have non-exclusive possession of the Premises commencing                     (“Early Possession Date”) . (See also Paragraphs 3.2 and 3.3)

1.5 Base Rent: $ 88,257.22  per month (“Base Rent”) , payable on the first day of each month commencing June 1, 2016 . (See also Paragraph 4)

x If this box is checked, there are provisions in this Lease for the Base Rent to be adjusted. See Paragraph 50

1.6 Lessee’s Share of Common Area Operating Expenses: 34.55 percent (                     %)  (“Lessee’s Share”) . In the event that the size of the Premises and/or the Project are modified during the term of this Lease, Lessor shall recalculate Lessee’s Share to reflect such modification.

1.7 Base Rent and Other Monies Paid Upon Execution:

(a) Base Rent: $ 88,257.22 for the period June 1, 2016 — June 30, 2016 .

(b) Common Area Operating Expenses: $ 22,545.78 for the period 3/1/16 –- 3/31/16 .

(c) Security Deposit:                                  (“Security Deposit”) . (See also Paragraph 5)

(d) Other: $         for

                                                                                                                                                                                                                            

(e) Total Due Upon Execution of this Lease: $ 110,803.00 .

1.8 Agreed Use: warehouse, distribution, assembly, showroom and general office uses . (See also Paragraph 6)

1.9 Insuring Party . Lessor is the “Insuring Party” . (See also Paragraph 8)

1.10 Real Estate Brokers: (See also Paragraph 15 and 25)

(a) Representation: The following real estate brokers (the “Brokers” ) and brokerage relationships exist in this transaction (check applicable boxes):

x Colliers International represents Lessor exclusively ( “Lessor’s Broker” );

x Cushman & Wakefield represents Lessee exclusively ( “Lessee’s Broker” ); or

¨ represents both Lessor and Lessee ( “Dual Agency” ).

(b) Payment to Brokers: Upon execution and delivery of this Lease by both Parties, Lessor shall pay to the Brokers the brokerage fee agreed to in a separate written agreement ( or if there is no such agreement, the sum of                      or                     %                     of     the total Base Rent) for the brokerage services rendered by the Brokers.

 

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1.11 Guarantor . The obligations of the Lessee under this Lease are to be guaranteed by (“Guarantor”) . (See also Paragraph 37)

1.12 Attachments . Attached hereto are the following, all of which constitute a part of this Lease:

x an Addendum consisting of Paragraphs 52 through 58;

x a site plan depicting the Premises;

¨ a site plan depicting the Project;

¨ a current set of the Rules and Regulations for the Project;

¨ a current set of the Rules and Regulations adopted by the owners’ association;

¨ a Work Letter;

x other (specify); Rent Adjustment Addendum (Paragraph 50); Option to Extend Addendum (Paragraph 51); Energy Disclosure Addendum .

2. Premises .

2.1 Letting . Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Premises, for the term, at the rental, and upon all of the terms, covenants and conditions set forth in this Lease. While the approximate square footage of the Premises may have been used in the marketing of the Premises for purposes of comparison, the Base Rent stated herein is NOT tied to square footage and is not subject to adjustment should the actual size be determined to be different. NOTE: Lessee is advised to verify the actual size prior to executing this Lease.

2.2 Condition . Lessor shall deliver that portion of the Premises contained within the Building (‘Unit”) to Lessee broom clean and free of debris on the Commencement Date or the Early Possession Date, whichever first occurs (“Start Date”) , warrants that, except for damages caused by Lessee or its agents or contractors, the existing electrical, plumbing, fire sprinkler, lighting, heating, ventilating and air conditioning systems (“HVAC”) , loading doors, sump pumps, if any, and all other such elements in the Unit, other than those constructed by Lessee, shall be in good operating condition on the Commencement Date said date, that the structural elements of the roof, bearing walls and foundation of the Unit shall be free of material defects, and that the Unit does not contain hazardous levels of any mold or fungi defined as toxic under applicable state or federal law.

If a non-compliance with such warranty exists as of the Start Date, or if one of such systems or elements should malfunction or fail within the appropriate warranty period, Lessor shall, as Lessor’s sole obligation with respect to such matter, except as otherwise provided in this Lease, promptly after receipt of written notice from Lessee setting forth with specificity the nature and extent of such non-compliance, malfunction or failure, rectify same at Lessor’s expense. The warranty periods shall be 6 months as to the HVAC systems and the remaining systems and other elements of the Unit. If Lessee does not give Lessor the required notice within the appropriate warranty period, correction of any such non-compliance, malfunction or failure shall be the obligation of Lessee at Lessee’s sole cost and expense (except for the repairs to the fire sprinkler systems, roof, foundations, and/or bearing walls - see Paragraph 7). Lessor also warrants, that unless otherwise specified in writing, Lessor is unaware of (i) any recorded Notices of Default affecting the Premise; (ii) any delinquent amounts due under any loan secured by the Premises; and (iii) any bankruptcy proceeding affecting the Premises.

2.3 Compliance . Lessor warrants that to the best of its knowledge the improvements on the Premises will comply with the building codes, applicable laws, covenants or restrictions of record, regulations, and ordinances ( “Applicable Requirements” ) that were in effect on the Commencement Date at the time that each improvement, or portion thereof, was constructed . Said warranty does not apply to the specific and unique use to which Lessee will put the Premises, modifications which may be required by the Americans with Disabilities Act or any similar laws as a result of Lessee’s specific and unique use (see Paragraph 49), or to any Alterations or Utility Installations (as defined in Paragraph 7.3(a)) made or to be made by Lessee. NOTE: Lessee is responsible for determining whether or not the Applicable Requirements and especially the zoning are appropriate for Lessee’s intended use, and acknowledges that past uses of the Premises may no longer be allowed. If the Premises do not comply with said warranty, Lessor shall, except as otherwise provided, promptly after receipt of written notice from Lessee setting forth with specificity the nature and extent of such non-compliance, rectify the same at Lessor’s expense. If Lessee does not give Lessor written notice of a non-compliance with this warranty within 12 months following the Start Date, correction of that non-compliance shall be the obligation of Lessee at Lessee’s sole cost and expense. If the Applicable Requirements are hereafter changed so as to require during the term of this Lease the construction of an addition to or an alteration of the Unit, Premises and/or Building, the remediation of any Hazardous Substance, or the reinforcement or other physical modification of the Unit, Premises and/or Building ( “Capital Expenditure” ), Lessor and Lessee shall allocate the cost of such work as follows:

(a) Subject to Paragraph 2.3(c) below, if such Capital Expenditures are required as a result of the specific and unique use of the Premises by Lessee as compared with uses by tenants in general, Lessee shall be fully responsible for the cost thereof, provided, however that if such Capital Expenditure is required during the last 2 years of this Lease and the cost thereof exceeds 2 months’ Base Rent, Lessee may instead terminate this Lease unless Lessor notifies Lessee, in writing, within 10 days after receipt of Lessee’s termination notice that Lessor has elected to pay the difference between the actual cost thereof and the amount equal to 2 months’ Base Rent. If Lessee elects termination, Lessee shall cease the use of the Premises which requires such Capital Expenditure and deliver to Lessor written notice specifying a termination date at least 90 days thereafter. Such termination date shall, however, in no event be earlier than the last day that Lessee could reasonably utilize the Premises without commencing such Capital Expenditure.

 

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(b) If such Capital Expenditure is not the result of the specific and unique use of the Premises by Lessee (such as, governmentally mandated seismic modifications), then Lessor shall pay for such Capital Expenditure and Lessee shall only be obligated to pay, each month during the remainder of the term of this Lease or any extension thereof, on the date that on which the Base Rent is due, an amount equal to 1/144th of the portion of such costs reasonably attributable to the Premises. Lessee shall pay Interest on the balance but may prepay its obligation at any time. If, however, such Capital Expenditure is required during the last 2 years of this Lease Lessor shall have the option to terminate this Lease upon 90 days prior written notice to Lessee unless Lessee notifies Lessor, in writing, within 10 days after receipt of Lessor’s termination notice that Lessee will pay for such Capital Expenditure. If Lessor does not elect to terminate, and fails to tender its share of any such Capital Expenditure, Lessee may advance such funds and deduct same, with Interest, from Rent until Lessor’s share of such costs have been fully paid. If Lessee is unable to finance Lessor’s share, or if the balance of the Rent due and payable for the remainder of this Lease is not sufficient to fully reimburse Lessee on an offset basis, Lessee shall have the right to terminate this Lease upon 30 days written notice to Lessor.

(c) Notwithstanding the above, the provisions concerning Capital Expenditures are intended to apply only to non-voluntary, unexpected, and new Applicable Requirements. If the Capital Expenditures are instead triggered by Lessee as a result of an actual or proposed change in use, change in intensity of use, or modification to the Premises then, and in that event, Lessee shall either: (i) immediately cease such changed use or intensity of use and/or take such other steps as may be necessary to eliminate the requirement for such Capital Expenditure, or (ii) complete such Capital Expenditure at its own expense. Lessee shall not have any right to terminate this Lease.

2.4 Acknowledgements . Lessee acknowledges that: (a) it has been given an opportunity to inspect and measure the Premises, (b) it has been advised by Lessor and/or Brokers to satisfy itself with respect to the size and condition of the Premises (including but not limited to the electrical, HVAC and fire sprinkler systems, security, environmental aspects, and compliance with Applicable Requirements and the Americans with Disabilities Act), and their suitability for Lessee’s intended use, (c) Lessee has made such investigation as it deems necessary with reference to such matters and assumes all responsibility therefor as the same relate to its occupancy of the Premises, (d) it is not relying on any representation as to the size of the Premises made by Brokers or Lessor, (e) the square footage of the Premises was not material to Lessee’s decision to lease the Premises and pay the Rent stated herein, and (f) neither Lessor, Lessor’s agents, nor Brokers have made any oral or written representations or warranties with respect to said matters other than as set forth in this Lease. In addition, Lessor acknowledges that: (i) Brokers have made no representations, promises or warranties concerning Lessee’s ability to honor the Lease or suitability to occupy the Premises, and (ii) it is Lessor’s sole responsibility to investigate the financial capability and/or suitability of all proposed tenants.

2.5 Lessee as Prior Owner/Occupant . The warranties made by Lessor in Paragraph 2 shall be of no force or effect if immediately prior to the Start Date Lessee was the owner or occupant of the Premises. In such event, Lessee shall be responsible for any necessary corrective work.

2.6 Vehicle Parking . Lessee shall be entitled to use Lessee’s Share of both (i) the Permitted Size Vehicle parking spaces and (ii) the trailer parking spaces specified in Paragraph 1.2(b) on those portions of the Common Areas designated from time to time by Lessor for parking, as shown on Exhibit A attached hereto. Lessee shall not use more parking spaces than said number. Except for any trailer parking positions, Said parking spaces shall be used for parking by vehicles no larger than full-size passenger automobiles or pick-up trucks, herein called “Permitted Size Vehicles.” Lessor may regulate the loading and unloading of vehicles by adopting Rules and Regulations as provided in Paragraph 2.9. Except for trailer parking in designated trailer parking positions, No vehicles other than Permitted Size Vehicles may be parked in the Common Area without the prior written permission of Lessor. In addition:

(a) Lessee shall not permit or allow any vehicles that belong to or are controlled by Lessee or Lessee’s employees, suppliers, shippers, customers, contractors or invitees to be loaded, unloaded, or parked in areas other than those designated by Lessor for such activities.

(b) Lessee shall not service or store any vehicles in the Common Areas.

(c) If Lessee permits or allows any of the prohibited activities described in this Paragraph 2.6, then Lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove or tow away the vehicle involved and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lessor.

2.7 Common Areas - Definition . The term “Common Areas” is defined as all areas and facilities outside the Premises and within the exterior boundary line of the Project and interior utility raceways and installations within the Unit that are provided and designated by the Lessor from time to time for the general non-exclusive use of Lessor, Lessee and other tenants of the Project and their respective employees, suppliers, shippers, customers, contractors and invitees, including parking areas, loading and unloading areas, trash areas, roadways, walkways, driveways and landscaped areas.

        2.8 Common Areas - Lessee’s Rights . Lessor grants to Lessee, for the benefit of Lessee and its employees, suppliers, shippers, contractors, customers and invitees, during the term of this Lease, the non-exclusive right to use, in common with others entitled to such use, the Common Areas as they exist from time to time, subject to any rights, powers, and privileges reserved by Lessor under the terms hereof or under the terms of any rules and regulations or restrictions governing the use of the Project. Under no circumstances shall the right herein granted to use the Common Areas be deemed to include the right to store any property, temporarily or permanently, in the Common Areas. Any such storage shall be permitted only by the prior written consent of Lessor or Lessor’s designated agent, which consent may be revoked at any time. In the event that any unauthorized storage shall occur then Lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lessor.

 

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2.9 Common Areas - Rules and Regulations . Lessor or such other person(s) as Lessor may appoint shall have the exclusive control and management of the Common Areas and shall have the right, from time to time, to establish, modify, amend and enforce reasonable rules and regulations (“Rules and Regulations”) for the management, safety, care, and cleanliness of the grounds, the parking and unloading of vehicles and the preservation of good order, as well as for the convenience of other occupants or tenants of the Building and the Project and their invitees. Lessee agrees to abide by and conform to all such Rules and Regulations (provided such Rules and Regulations are enforced in a non-discriminatory manner), and shall use reasonable efforts to cause its employees, suppliers, shippers, customers, contractors and invitees to so abide and conform. Lessor shall not be responsible to Lessee for the non-compliance with said Rules and Regulations by other tenants of the Project.

Lessor shall not make any changes to the Rules and Regulations that would materially and adversely affect Lessee’s use of or access to the Premises. In the event there is any inconsistency between the Lease and the Rules and Regulations, the Lease shall control.

2.10 Common Areas - Changes . Subject to Paragraph 2.9, Lessor shall have the right, in Lessor’s sole discretion, from time to time:

(a) To make changes to the Common Areas, including, without limitation, changes in the location, size, shape and number of driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas, walkways and utility raceways;

(b) To close temporarily any of the Common Areas for maintenance purposes so long as reasonable access to the Premises remains available;

(c) To designate other land outside the boundaries of the Project to be a part of the Common Areas;

(d) To add additional buildings and improvements to the Common Areas;

(e) To use the Common Areas while engaged in making additional improvements, repairs or alterations to the Project, or any portion thereof; and

(f) To do and perform such other acts and make such other changes in, to or with respect to the Common Areas and Project as Lessor may, in the exercise of sound business judgment, deem to be appropriate.

Notwithstanding anything to the contrary contained herein, Lessor’s exercise of its rights pursuant to this Paragraph 2.10, shall not materially interfere with Lessee’s use of the Premises or Lessee’s access to the Premises.

3. Term .

3.1 Term . The Commencement Date, Expiration Date and Original Term of this Lease are as specified in Paragraph 1.3.

3.2 Early Possession . Any provision herein granting Lessee Early Possession of the Premises is subject to and conditioned upon the Premises being available for such possession prior to the Commencement Date. Any grant of Early Possession only conveys a non-exclusive right to occupy the Premises. If Lessee totally or partially occupies the Premises prior to the Commencement Date, the obligation to pay Base Rent shall be abated for the period of such Early Possession. All other terms of this Lease (including but not limited to the obligations to pay Lessee’s Share of Common Area Operating Expenses, Real Property Taxes and insurance premiums and to maintain the Premises) shall be in effect during such period. Any such Early Possession shall not affect the Expiration Date. (See also Paragraph 52)

3.3 Delay In Possession . Lessor agrees to use its best commercially reasonable efforts to deliver exclusive possession of the Premises to Lessee by the Commencement Date. If, despite said efforts, Lessor is unable to deliver exclusive possession by such date, Lessor shall not be subject to any liability therefor (except as provided herein), nor shall such failure affect the validity of this Lease, but the Expiration Date shall be delayed one day for each day that Lessor delays in delivering possession of the Premises to Lessee. Lessee shall not, however, be obligated to pay Rent or perform its other obligations until Lessor delivers exclusive possession of the Premises and any period of rent abatement that Lessee would otherwise have enjoyed shall run from the date of delivery of possession and continue for a period equal to what Lessee would otherwise have enjoyed under the terms hereof, but minus any days of delay caused by the acts or omissions of Lessee. If exclusive possession is not delivered within 60 days after the Commencement Date, Lessee may, at its option, by notice in writing within 30 days after the end of such 60 day period (but prior delivery of exclusive possession of the Premises), cancel this Lease, in which event the Parties shall be discharged from all obligations hereunder, and Lessor shall reimburse Lessee for all of Lessee’s costs incurred in connection with this Lease. If such written notice is not received by Lessor within said 30 day period, Lessee’s right to cancel shall terminate. If, for reasons outside of Lessor’s control, exclusive possession of the Premises is not delivered within 365 days after the Commencement Date, this Lease shall terminate unless other agreements are reached between Lessor and Lessee, in writing. Notwithstanding anything herein to the contrary, except as otherwise set forth in Paragraph 53, Lessor shall not be required to complete the Improvements (as defined in Paragraph 53) prior to the Commencement Date, and “exclusive” possession of the Premises within the meaning of this Paragraph 3.3 shall not be construed to mean possession with such Improvements completed. (See also Paragraph 53).

3.4 Lessee Compliance . Lessor shall not be required to tender possession of the Premises to Lessee until Lessee complies with its obligation to provide evidence of insurance (Paragraph 8.5) and pays the amount set forth in Paragraph 1.7(e).

4. Rent .

4.1 Rent Defined . All monetary obligations of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are deemed to be rent (“Rent”) .

4.2 Common Area Operating Expenses . Lessee shall pay to Lessor during the term hereof, in addition to the Base Rent, Lessee’s Share (as specified in Paragraph 1.6) of all Common Area Operating Expenses, as hereinafter defined, during each calendar year of the term of this Lease, in accordance with the following provisions:

(a) “Common Area Operating Expenses” are defined, for purposes of this Lease, as all costs incurred by Lessor relating

 

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to the ownership and operation of the Project, including, but not limited to, the following:

(i) The operation, repair and maintenance, in neat, clean, good order and condition, and if necessary the replacement, of the following:

(aa) The Common Areas and Common Area improvements, including parking areas, loading and unloading areas, trash areas, roadways, parkways, walkways, driveways, landscaped areas, bumpers, irrigation systems, Common Area lighting facilities, fences and gates, elevators, roof membrane, building systems, and floor slabs (excluding the structural elements of the roof and the foundation, footings and exterior bearing walls of the Building, all of which shall be Lessor’s sole responsibility as further set forth in Paragraph 7.2) roofs, exterior walls of the buildings, building systems and roof drainage systems.

(bb) Exterior signs and any tenant directories.

(cc) Any fire sprinkler systems.

(dd) All other areas and improvements that are within the exterior boundaries of the Project but outside of the Premises and/or any other space occupied by a tenant.

 

(ii) The cost of water, gas, electricity and telephone to service the Common Areas and any utilities not separately metered.

 

(iii) The cost of trash disposal, pest control services, property management (which shall not exceed 2% of Base Rent), security services, owners’ association dues and fees, the cost to repaint the exterior of any structures and the cost of any environmental inspections.

 

(iv) Reserves, if any, set aside for maintenance, repair and replacement of Common Area improvements and equipment.

 

(v) Real Property Taxes (as defined in Paragraph 10).

 

(vi) The cost of the premiums for the insurance maintained by Lessor pursuant to Paragraph 8.

 

(vii) Any deductible portion of an insured loss concerning the Building or the Common Areas.

 

(viii) Auditors’, accountants’ and attorneys’ fees and costs related to the operation, maintenance, repair and, if necessary, the replacement of the Project.

 

(ix) The cost of any capital improvement to the Building or the Project not covered under the provisions of Paragraph 2.3 provided; however, that Lessor shall allocate the cost of any such capital improvement over a 12 year period and Lessee shall not be required to pay more than Lessee’s Share of 1/144th of the cost of such capital improvement in any given month.

 

(x) The cost of any other services to be provided by Lessor that are stated elsewhere in this Lease to be a Common Area Operating Expense.

(b) Any Common Area Operating Expenses and Real Property Taxes that are specifically attributable to the Unit, the Building or to any other building in the Project or to the operation, repair and maintenance thereof, shall be allocated entirely to such Unit, Building, or other building. However, any Common Area Operating Expenses and Real Property Taxes that are not specifically attributable to the Building or to any other building or to the operation, repair and maintenance thereof, shall be equitably allocated by Lessor to all buildings in the Project.

(c) The inclusion of the improvements, facilities and services set forth in Subparagraph 4.2(a) shall not be deemed to impose an obligation upon Lessor to either have said improvements or facilities or to provide those services unless the Project already has the same, Lessor already provides the services, or Lessor has agreed elsewhere in this Lease to provide the same or some of them.

                (d) Lessee’s Share of Common Area Operating Expenses is payable monthly on the same day as the Base Rent is due hereunder. The amount of such payments shall be based on Lessor’s estimate of the annual Common Area Operating Expenses. Within 60 days after the end of each year, Lessor shall deliver to Lessee a reasonably detailed statement showing Lessee’s Share of the actual Common Area Operating Expenses for the preceding year. If Lessee’s payments during such year exceed Lessee’s Share, Lessor shall credit the amount of such over-payment against Lessee’s future payments. If Lessee’s payments during such year were less than Lessee’s Share, Lessee shall pay to Lessor the amount of the deficiency within 30 days after delivery by Lessor to Lessee of the statement. (See also Paragraph 54). So long as no Breach is existing under this Lease, Lessee or Lessee’s independent certified public accountant (which accountant shall not be compensated in whole or in part on a contingency basis) shall have to the right, at Lessee’s expense, to audit Lessor’s books and records relating to the prior year’s Common Area Operating Expenses, not more than once per calendar year, at a mutually convenient time within ten (10) business days after Lessee’s request, at Lessor’s local office, if one exists, or if none exists, at Lessor’s main offices. If such inspection, review or audit reasonably demonstrates that Lessor has overcharged Lessee for Common Area Operating Expenses, then within thirty (30) days after notice to Lessor, Lessor shall reimburse Lessee for the amount of the overcharge. If such inspection, review or audit reasonably demonstrates that Lessor has undercharged Lessee for Common Area Operating Expenses, then within thirty (30) days after notice to Lessor, Lessee shall pay Lessor the amount of the undercharge. Lessee and Lessee’s accountant shall keep the results of any such audit confidential as to all parties other than Lessor (except to the extent reasonably necessary to (a) comply with applicable law, regulations, court or administrative orders, (b) to prosecute or defend any claim or suit by litigation or otherwise under the Lease, or (c) obtain legal and financial advice from attorneys, accountants and financial advisors), and shall enter into a written confidentiality agreement prior to conducting such audit at Lessor’s request. In addition, if such audit reveals that Lessor overcharged Lessee by five percent (5%) or more of the amount actually due, Lessor shall also reimburse Lessee for Lessee’s audit costs. Lessee agrees to provide to Lessor copies of any and all reports, summaries, conclusions, and other results of such audit upon Lessor’s reasonable request.

(e) Common Area Operating Expenses shall not include any expenses paid by any tenant directly to third parties, or as to which Lessor is otherwise reimbursed by any third party, other tenant, or insurance proceeds.

4.3 Payment . Lessee shall cause payment of Rent to be received by Lessor in lawful money of the United States, without offset or deduction (except as specifically permitted in this Lease), on or before the day on which it is due. In the event that any invoice prepared by Lessor is inaccurate such inaccuracy shall not constitute a waiver and Lessee shall be obligated to pay the amount set forth in this Lease. Rent for any period

 

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during the term hereof which is for less than one full calendar month shall be prorated based upon the actual number of days of said month. Payment of Rent shall be made to Lessor at its address stated herein or to such other persons or place as Lessor may from time to time designate in writing. Acceptance of a payment which is less than the amount then due shall not be a waiver of Lessor’s rights to the balance of such Rent, regardless of Lessor’s endorsement of any check so stating. In the event that any check, draft, or other instrument of payment given by Lessee to Lessor is dishonored for any reason, Lessee agrees to pay to Lessor the sum of $25 in addition to any Late Charge. Payments will be applied first to accrued late charges and attorney’s fees, second to accrued interest, then to Base Rent and Common Area Operating Expenses, and any remaining amount to any other outstanding charges or costs.

5. Security Deposit. Lessee shall deposit with Lessor not less than nine (9) months prior to the expiration of the Original Term (as such Original Term may be extended pursuant to Paragraph 51 hereof), a security deposit in the amount of $110,803.00 (the “ Security Deposit ”) as security for Lessee’s faithful performance of its obligations under this Lease, including its surrender and restoration obligations set forth herein. If Lessee fails to pay Rent, or otherwise Defaults under this Lease, Lessor may use, apply or retain all or any portion of said Security Deposit for the payment of any amount already due Lessor, for Rents which will be due in the future, and/ or to reimburse or compensate Lessor for any liability, expense, loss or damage which Lessor may suffer or incur by reason thereof. If Lessor uses or applies all or any portion of the Security Deposit, Lessee shall within 10 days after written request therefor deposit monies with Lessor sufficient to restore said Security Deposit to the full amount required by this Lease. Lessor shall not be required to keep the Security Deposit separate from its general accounts. Within 90 days after the expiration or termination of this Lease, Lessor shall return that portion of the Security Deposit not used or applied by Lessor. No part of the Security Deposit shall be considered to be held in trust, to bear interest or to be prepayment for any monies to be paid by Lessee under this Lease.

6. Use .

6.1 Use . Lessee shall use and occupy the Premises only for the Agreed Use, or any other legal use which is reasonably comparable thereto, and for no other purpose. Lessee shall not use or permit the use of the Premises in a manner that is unlawful, creates damage, waste or a nuisance, or that disturbs occupants of or causes damage to neighboring premises or properties. Other than guide, signal and seeing eye dogs, Lessee shall not keep or allow in the Premises any pets, animals, birds, fish, or reptiles. Lessor shall not unreasonably withhold or delay its consent to any written request for a modification of the Agreed Use, so long as the same will not impair the structural integrity of the Building or the mechanical or electrical systems therein, and/or is not significantly more burdensome to the Project. If Lessor elects to withhold consent, Lessor shall within 7 days after such request give written notification of same, which notice shall include an explanation of Lessor’s objections to the change in the Agreed Use.

6.2 Hazardous Substances .

(a) Reportable Uses Require Consent . The term “Hazardous Substance” as used in this Lease shall mean any product, substance, or waste whose presence, use, manufacture, disposal, transportation, or release, either by itself or in combination with other materials expected to be on the Premises, is either: (i) potentially injurious to the public health, safety or welfare, the environment or the Premises, (ii) regulated or monitored by any governmental authority, or (iii) a basis for potential liability of either party to any governmental agency or third party under any applicable statute or common law theory. Hazardous Substances shall include, but not be limited to, hydrocarbons, petroleum, gasoline, and/or crude oil or any products, by-products or fractions thereof. Neither party shall engage in any activity in or on the Premises which constitutes a Reportable Use of Hazardous Substances without the express prior written consent of the other party and timely compliance (at such party’s expense) with all Applicable Requirements. “Reportable Use” shall mean (i) the installation or use of any above or below ground storage tank, (ii) the generation, possession, storage, use, transportation, or disposal of a Hazardous Substance that requires a permit from, or with respect to which a report, notice, registration or business plan is required to be filed with, any governmental authority, and/or (iii) the presence at the Premises of a Hazardous Substance with respect to which any Applicable Requirements requires that a notice be given to persons entering or occupying the Premises or neighboring properties. Notwithstanding the foregoing, Lessee may use any ordinary and customary materials reasonably required to be used in the normal course of the Agreed Use, ordinary office supplies (copier toner, liquid paper, glue, etc.) and common household cleaning materials, so long as such use is in compliance with all Applicable Requirements, is not a Reportable Use, and does not expose the Premises or neighboring property to any meaningful risk of contamination or damage or expose Lessor to any liability therefor. In addition, Lessor may condition its consent to any Reportable Use upon receiving such additional assurances as Lessor reasonably deems necessary to protect itself, the public, the Premises and/or the environment against damage, contamination, injury and/or liability, including, but not limited to, the installation (and removal on or before Lease expiration or termination) of protective modifications (such as concrete encasements) and/or increasing the Security Deposit.

(b) Duty to Inform Lessor . If Lessee knows, or has reasonable cause to believe, that a Hazardous Substance has come to be located in, on, under or about the Premises, other than as previously consented to by Lessor, Lessee shall immediately give written notice of such fact to Lessor, and provide Lessor with a copy of any report, notice, claim or other documentation which it has concerning the presence of such Hazardous Substance.

                (c) Lessee Remediation . Lessee shall not cause or permit any Hazardous Substance to be spilled or released in, on, under, or about the Premises (including through the plumbing or sanitary sewer system) and shall promptly, at Lessee’s expense, comply with all Applicable Requirements and take all investigatory and/or remedial action reasonably recommended, whether or not formally ordered or required, for the cleanup of any contamination of, and for the maintenance, security and/or monitoring of the Premises or neighboring properties, that was caused or materially contributed to by Lessee, or pertaining to or involving any Hazardous Substance brought onto the Premises during the term of this Lease, by or for Lessee or any third party (other than Lessor’s agents, employees, or contractors or any other tenant in the Project or their agents, employees or contractors).

 

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(d) Lessee Indemnification . Except to the extent arising out of Lessor’s negligence or willful misconduct, Lessee shall indemnify, defend and hold Lessor, its agents, employees, lenders and ground lessor, if any, harmless from and against any and all loss of rents and/or damages, liabilities, judgments, claims, expenses, penalties, and attorneys’ and consultants’ fees arising out of or involving any Hazardous Substance brought onto the Premises by or for Lessee or any third party (other than Lessor’s agents, employees, or contractors or any other tenant in the Project or their agents, employees or contractors) (provided, however, that Lessee shall have no liability under this Lease with respect to underground migration of any Hazardous Substance under the Premises from areas outside of the Project not caused or contributed to by Lessee). Lessee’s obligations shall include, but not be limited to, the effects of any contamination or injury to person, property or the environment created or suffered by Lessee, and the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or termination of this Lease.

(e) Lessor Indemnification . Except to the extent arising out of Lessee’s negligence or willful misconduct, Lessor and its successors and assigns shall indemnify, defend, reimburse and hold Lessee, its employees and lenders, harmless from and against any and all damages, liabilities, judgments, claims, expenses, penalties, and attorneys’ and consultants’ fees, including the cost of remediation, which are suffered as a direct result of Hazardous Substances on the Premises prior to Lessee taking possession or which are caused by the negligence or willful misconduct of Lessor, its agents or employees. Lessor’s obligations, as and when required by the Applicable Requirements, shall include, but not be limited to, the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or termination of this Lease.

(f) Investigations and Remediations . Lessor shall retain the responsibility and pay for any investigations or remediation measures required by governmental entities having jurisdiction with respect to the existence of Hazardous Substances on the Premises prior to the Lessee taking possession, unless such remediation measure is required as a result of Lessee’s specific and unique use (including “Alterations”, as defined in paragraph 7.3(a) below) of the Premises, in which event Lessee shall be responsible for such payment. Lessee shall cooperate fully in any such activities at the request of Lessor, including allowing Lessor and Lessor’s agents to have reasonable access to the Premises at reasonable times in order to carry out Lessor’s investigative and remedial responsibilities.

(g) Lessor Termination Option . If a Hazardous Substance Condition (see Paragraph 9.1(e)) occurs during the term of this Lease, unless Lessee is legally responsible therefor (in which case Lessee shall make the investigation and remediation thereof required by the Applicable Requirements and this Lease shall continue in full force and effect, but subject to Lessor’s rights under Paragraph 6.2(d) and Paragraph 13), Lessor may, at Lessor’s option, either (i) investigate and remediate such Hazardous Substance Condition, if required, as soon as reasonably possible at Lessor’s expense, in which event this Lease shall continue in full force and effect, or (ii) if the estimated cost to remediate such condition exceeds 12 times the then monthly Base Rent or $100,000, whichever is greater, give written notice to Lessee, within 30 days after receipt by Lessor of knowledge of the occurrence of such Hazardous Substance Condition, of Lessor’s desire to terminate this Lease as of the date 60 days following the date of such notice. In the event Lessor elects to give a termination notice, Lessee may, within 10 days thereafter, give written notice to Lessor of Lessee’s commitment to pay the amount by which the cost of the remediation of such Hazardous Substance Condition exceeds an amount equal to 12 times the then monthly Base Rent or $100,000, whichever is greater. Lessee shall provide Lessor with said funds or satisfactory assurance thereof within 30 days following such commitment. In such event, this Lease shall continue in full force and effect, and Lessor shall proceed to make such remediation as soon as reasonably possible after the required funds are available. If Lessee does not give such notice and provide the required funds or assurance thereof within the time provided, this Lease shall terminate as of the date specified in Lessor’s notice of termination.

6.3 Lessee’s Compliance with Applicable Requirements . Except as otherwise provided in this Lease, Lessee shall, at Lessee’s sole expense, fully, diligently and in a timely manner, materially comply with all Applicable Requirements, the requirements of any applicable fire insurance underwriter or rating bureau, and the recommendations of Lessor’s engineers and/or consultants which relate in any manner to such Requirements, without regard to whether said Requirements are now in effect or become effective after the Start Date. Lessee shall, within 10 days after receipt of Lessor’s written request, provide Lessor with copies of all permits and other documents, and other information evidencing Lessee’s compliance with any Applicable Requirements specified by Lessor, and shall immediately upon receipt, notify Lessor in writing (with copies of any documents involved) of any threatened or actual claim, notice, citation, warning, complaint or report pertaining to or involving the failure of Lessee or the Premises to comply with any Applicable Requirements. Likewise, Lessee shall immediately give written notice to Lessor of: (i) any water damage to the Premises and any suspected seepage, pooling, dampness or other condition conducive to the production of mold; or (ii) any mustiness or other odors that might indicate the presence of mold in the Premises.

6.4 Inspection; Compliance . Lessor and Lessor’s “ Lender ” (as defined in Paragraph 30) and consultants shall have the right to enter into Premises at any time, in the case of an emergency, and otherwise at reasonable times after not less than 24 hours notice, for the purpose of inspecting the condition of the Premises and for verifying compliance by Lessee with this Lease. The cost of any such inspections shall be paid by Lessor, unless a violation of Applicable Requirements, or a Hazardous Substance Condition caused by Lessee (see Paragraph 9.1) is found to exist or be imminent. In such case, Lessee shall upon request reimburse Lessor for the cost of such inspection, so long as such inspection is reasonably related to the violation or contamination. In addition, Lessee shall provide copies of all relevant material safety data sheets ( MSDS ) to Lessor within 10 days of the receipt of written request therefor.

7. Maintenance; Repairs, Utility Installations; Trade Fixtures and Alterations .

7.1 Lessee’s Obligations .

(a) In General . Subject to the provisions of Paragraph 2.2 (Condition), 2.3 (Compliance), 6.3 (Lessee’s Compliance with Applicable Requirements), 7.2 (Lessor’s Obligations), 9 (Damage or Destruction), and 14 (Condemnation), Lessee shall, at Lessee’s sole expense,

 

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keep the Premises, Utility Installations (intended for Lessee’s exclusive use, no matter where located), and Alterations in good order, condition and repair (whether or not the portion of the Premises requiring repairs, or the means of repairing the same, are reasonably or readily accessible to Lessee, and whether or not the need for such repairs occurs as a result of Lessee’s use, any prior use, the elements or the age of such portion of the Premises), including, but not limited to, all equipment or facilities, such as plumbing, HVAC equipment, electrical, lighting facilities, boilers, pressure vessels, fixtures, interior walls, interior surfaces of exterior walls, ceilings, floors, windows, doors, plate glass, and skylights but excluding any items which are the responsibility of Lessor pursuant to Paragraph 7.2. Lessee, and in keeping the Premises in good order, condition and repair, shall exercise and perform good maintenance practices. Lessee’s obligations shall include restorations, replacements or renewals when necessary to keep the Premises and all improvements thereon or a part thereof in good order, condition and state of repair.

(b) Service Contracts . Lessor shall, subject to reimbursement by Lessee for the cost thereof pursuant to Paragraph 54, procure and maintain contracts, in customary form and substance for, and with contractors specializing and experienced in the maintenance of the following equipment and improvements, if any, if and when installed on the Premises: (i) HVAC equipment, (ii) boiler and pressure vessels, and (iii) clarifiers. All service contracts entered into and maintained by Lessor shall be with unaffiliated third parties. (See also Paragraph 54)

(c) Failure to Perform . If Lessee fails to perform Lessee’s obligations under this Paragraph 7.1, Lessor may enter upon the Premises after 10 days’ prior written notice to Lessee (except in the case of an emergency, in which case no notice shall be required), perform such obligations on Lessee’s behalf, and put the Premises in good order, condition and repair, and Lessee shall promptly pay to Lessor a sum equal to the cost thereof.

(d) Replacement . Subject to Lessee’s indemnification of Lessor as set forth in Paragraph 8.7 below, and without relieving Lessee of liability resulting from Lessee’s failure to exercise and perform good maintenance practices, if an item described in Paragraph 7.1(b) cannot be repaired other than at a cost which is in excess of 50% of the cost of replacing such item, then such item shall be replaced by Lessor, and the cost thereof shall be prorated between the Parties and Lessee shall only be obligated to pay, each month during the remainder of the term of this Lease, on the date on which Base Rent is due, an amount equal to the product of multiplying the cost of such replacement by a fraction, the numerator of which is one, and the denominator of which is 144 (ie. 1/144th of the cost per month). Lessee shall pay Interest on the unamortized balance but may prepay its obligation at any time.

7.2 Lessor’s Obligations. Subject to the provisions of Paragraphs 2.2 (Condition), 2.3 (Compliance), 4.2 (Common Area Operating Expenses), 6 (Use), 7.1 (Lessee’s Obligations), 9 (Damage or Destruction) and 14 (Condemnation), Lessor, at Lessor’s cost but subject to reimbursement pursuant to Paragraph 4.2, shall keep in good order, condition and repair the foundations, exterior walls, structural condition of interior bearing walls, exterior roof, fire sprinkler system, Common Area fire alarm and/or smoke detection systems, fire hydrants, parking lots, walkways, parkways, driveways, landscaping, fences, signs and utility systems serving the Common Areas and all parts thereof, as well as providing the services for which there is a Common Area Operating Expense pursuant to Paragraph 4.2. Lessor shall not be obligated to paint the exterior or interior surfaces of exterior walls nor shall Lessor be obligated to maintain, repair or replace windows, doors or plate glass of the Premises. Lessee expressly waives the benefit of any statute now or hereafter in effect to the extent it is inconsistent with the terms of this Lease. Notwithstanding anything herein to the contrary, except to the extent required due to the negligence or willful misconduct of Lessee, Lessor shall be responsible, at its sole cost and expense, for all maintenance, repairs and replacements of the structural elements of the roof (other than the roof membrane) and the foundation, footings and exterior bearing walls of the Building.

7.3 Utility Installations; Trade Fixtures; Alterations .

(a) Definitions . The term “Utility Installations” refers to all floor and window coverings, air and/or vacuum lines, power panels, electrical distribution, security and fire protection systems, communication cabling, lighting fixtures, HVAC equipment, plumbing, and fencing in or on the Premises. The term “ Trade Fixtures ” shall mean Lessee’s machinery and equipment that can be removed without doing material damage to the Premises. The term “ Alterations ” shall mean any modification of the improvements, other than Utility Installations or Trade Fixtures, whether by addition or deletion. “ Lessee Owned Alterations and/or Utility Installations ” are defined as Alterations and/or Utility Installations made by Lessee that are not yet owned by Lessor pursuant to Paragraph 7.4(a).

                (b) Consent . Lessee shall not make any Alterations or Utility Installations to the Premises without Lessor’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed. Lessee may, however, make non-structural Alterations or Utility Installations to the interior of the Premises (excluding the roof) without such consent but upon notice to Lessor, as long as they are not visible from the outside, do not involve puncturing, relocating or removing the roof or any existing walls, will not affect the electrical, plumbing, HVAC, and/or life safety systems, and the cumulative cost thereof during this Lease as extended does not exceed a sum equal to 2 month’s Base Rent in any one year. Notwithstanding the foregoing, Lessee shall not make or permit any roof penetrations and/or install anything on the roof without the prior written approval of Lessor. Lessor may, as a precondition to granting such approval, require Lessee to utilize a contractor chosen and/or approved by Lessor, provided Lessor’s contractor charges competitive rates and will complete such work within a reasonable period of time. Any Alterations or Utility Installations that Lessee shall desire to make and which require the consent of the Lessor shall be presented to Lessor in written form with detailed plans. Consent shall be deemed conditioned upon Lessee’s: (i) acquiring all applicable governmental permits, (ii) furnishing Lessor with copies of both the permits and the plans and specifications prior to commencement of the work, and (iii) compliance with all conditions of said permits and other Applicable Requirements in a prompt and expeditious manner. Any Alterations or Utility Installations shall be performed in a workmanlike manner with good and sufficient materials. Lessee shall promptly upon completion furnish Lessor with as-built plans and specifications. For work which costs an amount in excess of two month’s Base Rent, Lessor may, in its reasonable discretion, condition its consent upon Lessee providing a lien and completion bond in an amount equal to up to 125% of the estimated cost of such Alteration or Utility Installation and, in the event such work includes Alterations or Utility Installations that are specialized and/or unique to Lessee’s business operations, upon Lessee’s posting an additional Security Deposit with Lessor.

 

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(c) Liens; Bonds . Lessee shall pay, when due, all claims for labor or materials furnished or alleged to have been furnished to or for Lessee at or for use on the Premises, which claims are or may be secured by any mechanic’s or materialman’s lien against the Premises or any interest therein. Lessee shall give Lessor not less than 10 days notice prior to the commencement of any work in, on or about the Premises, and Lessor shall have the right to post notices of non-responsibility. If Lessee shall contest the validity of any such lien, claim or demand, then Lessee shall, at its sole expense defend and protect itself, Lessor and the Premises against the same and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof. If Lessor shall require, Lessee shall furnish a surety bond in an amount equal to 150% OF the amount of such contested lien, claim or demand, indemnifying Lessor against liability for the same.

7.4 Ownership; Removal; Surrender; and Restoration .

(a) Ownership . Subject to Lessor’s right to require removal or elect ownership as hereinafter provided, all Alterations and Utility Installations made by Lessee shall be the property of Lessee, but considered a part of the Premises. Lessor may, at any time, elect in writing to be the owner of all or any specified part of the Lessee Owned Alterations and Utility Installations. Unless otherwise instructed per paragraph 7.4(b) hereof, all Lessee Owned Alterations and Utility Installations shall, at the expiration or termination of this Lease, become the property of Lessor and be surrendered by Lessee with the Premises.

(b) Removal . By delivery to Lessee of written notice from Lessor not earlier than 90 and not later than 30 days prior to the end of the term of this Lease, Lessor may require that any or all Lessee Owned Alterations and/or Utility Installations be removed by the expiration or termination of this Lease, unless Lessor notified Lessee at the time Lessee made such alterations that Lessor would not require such items to be removed at the end of the term of this Lease. Lessor may require the removal at any time of all or any part of any Lessee Owned Alterations or Utility Installations made without the required consent.

(c) Surrender; Restoration . Lessee shall surrender the Premises by the Expiration Date or any earlier termination date, with all of the improvements, parts and surfaces thereof broom clean and free of debris, and in good operating order, condition and state of repair, ordinary wear and tear excepted. “Ordinary wear and tear” shall not include any damage or deterioration that would have been prevented by good maintenance practice. Lessee shall repair any damage occasioned by the installation, maintenance or removal of Trade Fixtures, Lessee owned Alterations and/or Utility Installations, furnishings, and equipment as well as the removal of any storage tank installed by or for Lessee. Lessee shall also remove from the Premises any and all Hazardous Substances brought onto the Premises by or for Lessee or any third party (other than Lessor’s agents, employees, or contractors or any other tenant in the Project or their agents, employees or contractors) (except Hazardous Substances which were deposited via underground migration from areas outside of the Project) to the level specified in Applicable Requirements. Trade Fixtures shall remain the property of Lessee and shall be removed by Lessee. Any personal property of Lessee not removed on or before the Expiration Date or any earlier termination date shall be deemed to have been abandoned by Lessee and may be disposed of or retained by Lessor as Lessor may desire. The failure by Lessee to timely vacate the Premises pursuant to this Paragraph 7.4(c) without the express written consent of Lessor shall constitute a holdover under the provisions of Paragraph 26 below.

8. Insurance; Indemnity .

8.1 Payment of Premiums . The cost of the premiums for the insurance policies required to be carried by Lessor, pursuant to Paragraphs 8.2(b), 8.3(a) and 8.3(b), shall be a Common Area Operating Expense. Premiums for policy periods commencing prior to, or extending beyond, the term of this Lease shall be prorated to coincide with the corresponding Commencement Date or Expiration Date.

8.2 Liability Insurance .

(a) Carried by Lessee . Lessee shall obtain and keep in force a Commercial General Liability policy of insurance protecting Lessee and Lessor as an additional insured against claims for bodily injury, personal injury and property damage based upon or arising out of the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than $1,000,000 per occurrence with an annual aggregate of not less than $2,000,000. Lessee shall add Lessor as an additional insured by means of an endorsement at least as broad as the Insurance Service Organization’s “Additional Insured-Managers or Lessors of Premises” Endorsement. The policy shall not contain any intra-insured exclusions as between insured persons or organizations, but shall include coverage for liability assumed under this Lease as an “ insured contract ” for the performance of Lessee’s indemnity obligations under this Lease. The limits of said insurance shall not, however, limit the liability of Lessee nor relieve Lessee of any obligation hereunder. Lessee shall provide an endorsement on its liability policy(ies) which provides that its insurance shall be primary to and not contributory with any similar insurance carried by Lessor, whose insurance shall be considered excess insurance only.

(b) Carried by Lessor . Lessor shall maintain liability insurance as described in Paragraph 8.2(a), in addition to, and not in lieu of, the insurance required to be maintained by Lessee. Lessee shall not be named as an additional insured therein.

8.3 Property Insurance - Building, Improvements and Rental Value .

(a) Building and Improvements . Lessor shall obtain and keep in force a policy or policies of insurance in the name of Lessor, with loss payable to Lessor, any ground-lessor, and to any Lender insuring loss or damage to the Premises. The amount of such insurance shall be equal to the full insurable replacement cost of the Premises, as the same shall exist from time to time, or the amount required by any Lender, but in no event more than the commercially reasonable and available insurable value thereof. Lessee Owned Alterations and Utility Installations, Trade Fixtures, and Lessee’s personal property shall be insured by Lessee not by Lessor. If the coverage is available and commercially appropriate, such policy or policies shall insure against all risks of direct physical loss or damage (except the perils of flood and/or earthquake unless required by

 

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a Lender), including coverage for debris removal and the enforcement of any Applicable Requirements requiring the upgrading, demolition, reconstruction or replacement of any portion of the Premises as the result of a covered loss. Said policy or policies shall also contain an agreed valuation provision in lieu of any coinsurance clause, waiver of subrogation, and inflation guard protection causing an increase in the annual property insurance coverage amount by a factor of not less than the adjusted U.S. Department of Labor Consumer Price Index for All Urban Consumers for the city nearest to where the Premises are located. If such insurance coverage has a deductible clause, the deductible amount shall not exceed $5,000 per occurrence. If such insurance coverage has a deductible clause, the deductible amount shall be commercially reasonable.

(b) Rental Value . Lessor shall also obtain and keep in force a policy or policies in the name of Lessor with loss payable to Lessor and any Lender, insuring the loss of the full Rent for one year with an extended period of indemnity for an additional 180 days (“ Rental Value Insurance ”). Said insurance shall contain an agreed valuation provision in lieu of any coinsurance clause, and the amount of coverage shall be adjusted annually to reflect the projected Rent otherwise payable by Lessee, for the next 12 month period.

(c) Adjacent Premises . Lessee shall pay for any increase in the premiums for the property insurance of the Building and for the Common Areas or other buildings in the Project if said increase is caused by Lessee’s acts, omissions, use or occupancy of the Premises in a manner that is not in accordance with the terms of this Lease.

(d) Lessee’s Improvements . Since Lessor is the Insuring Party, Lessor shall not be required to insure Lessee Owned Alterations and Utility Installations unless the item in question has become the property of Lessor under the terms of this Lease.

8.4 Lessee’s Property; Business Interruption Insurance; Worker’s Compensation Insurance .

(a) Property Damage . Lessee shall obtain and maintain insurance coverage on all of Lessee’s personal property, Trade Fixtures, and Lessee Owned Alterations and Utility Installations. Such insurance shall be full replacement cost coverage, and any deductible shall be commercially reasonable. The proceeds from any such insurance shall be used by Lessee for the replacement of personal property, Trade Fixtures and Lessee Owned Alterations and Utility Installations.

(b) Business Interruption . Lessee shall obtain and maintain loss of income and extra expense insurance in amounts as will reimburse Lessee, for one year, for direct or indirect loss of earnings attributable to all perils commonly insured against by prudent lessees in the business of Lessee or attributable to prevention of access to the Premises as a result of such perils.

(c) Worker’s Compensation Insurance. Lessee shall obtain and maintain Worker’s Compensation Insurance in such amount as may be required by Applicable Requirements.

(d) No Representation of Adequate Coverage . Lessor makes no representation that the limits or forms of coverage of insurance specified herein are adequate to cover Lessee’s property, business operations or obligations under this Lease.

8.5 Insurance Policies . Insurance required herein shall be by companies maintaining during the policy term a “General Policyholders Rating” of at least A-, VII, as set forth in the most current issue of “Best’s Insurance Guide”, or such other rating as may be required by a Lender. Lessee shall not do or permit to be done anything which invalidates the required insurance policies. Lessee shall, prior to the Start Date, deliver to Lessor certificates with copies of the required endorsements evidencing the existence and amounts of the required insurance. No such policy shall be cancelable except after 10 days prior written notice to Lessor. Lessee shall, at least 10 days prior to the expiration of such policies, furnish Lessor with evidence of renewals or “insurance binders” evidencing renewal thereof, or Lessor may order such insurance and charge the cost thereof to Lessee, which amount shall be payable by Lessee to Lessor upon demand. Such policies shall be for a term of at least one year, or the length of the remaining term of this Lease, whichever is less. If either Party shall fail to procure and maintain the insurance required to be carried by it, the other Party may, but shall not be required to, procure and maintain the same.

8.6 Waiver of Subrogation . Without affecting any other rights or remedies, Lessee and Lessor each hereby release and relieve the other, and waive their entire right to recover damages against the other, for loss of or damage to its property arising out of or incident to the perils required to be insured against herein. The effect of such releases and waivers is not limited by the amount of insurance carried or required, or by any deductibles applicable hereto. The Parties agree to have their respective property damage insurance carriers waive any right to subrogation that such companies may have against Lessor or Lessee, as the case may be, so long as the insurance is not invalidated thereby.

        8.7 Indemnity . Except for Lessor’s negligence or willful misconduct, Lessee shall indemnify, protect, defend and hold harmless the Premises, Lessor and its agents, Lessor’s master or ground lessor, partners and Lenders, from and against any and all claims, loss of rents and/or damages, liens, judgments, penalties, attorneys’ and consultants’ fees, expenses and/or liabilities arising out of, involving, or in connection with, the use and/or occupancy of the Premises by Lessee. If any action or proceeding is brought against Lessor by reason of any of the foregoing matters, Lessee shall upon notice defend the same at Lessee’s expense by counsel reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee in such defense. Lessor need not have first paid any such claim in order to be defended or indemnified. Except as otherwise set forth in Paragraph 8.8, Lessor shall indemnify, protect, defend and hold harmless Lessee and its agents from and against any and all claims, damages, liens, judgments, penalties, attorneys’ and consultants’ fees, expenses and/or liabilities arising due to personal injury or property damage caused by the negligence or willful misconduct of Lessor or its employees, agents or contractors. If any action or proceeding is brought against Lessee by reason of any of the foregoing matters, Lessor shall upon notice defend the same at Lessor’s expense by counsel reasonably satisfactory to Lessee and Lessee shall cooperate with Lessor in such defense. Lessee need not have first paid any such claim in order to be defended or indemnified.

8.8 Exemption of Lessor and its Agents from Liability . Notwithstanding the negligence or breach of this Lease by Lessor or its agents, neither Lessor nor its agents shall be liable to Lessee under any circumstances for: (i) injury or damage to the person or goods, wares, merchandise or other property of Lessee, Lessee’s employees, contractors, invitees, customers, or any other person in or about the Premises, whether

 

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such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain, indoor air quality, the presence of mold or from the breakage, leakage, obstruction or other defects of pipes, fire sprinklers, wires, appliances, plumbing, HVAC or lighting fixtures, or from any other cause, whether the said injury or damage results from conditions arising upon the Premises or upon other portions of the Building, or from other sources or places, (ii) any damages arising from any act or neglect of any other tenant of Lessor or from the failure of Lessor or its agents to enforce the provisions of any other lease in the Project, or (iii) injury to Lessee’s business or for any loss of income or profit therefrom. Instead, it is intended that Lessee’s sole recourse in the event of such damages or injury shall be to file a claim on the insurance policy(ies) that Lessee is required to maintain pursuant to the provisions of paragraph 8.

8.9 Failure to Provide Insurance. Intentionally deleted.

9. Damage or Destruction .

9.1 Definitions .

(a) “Premises Partial Damage” shall mean damage or destruction to the improvements on the Premises, other than Lessee Owned Alterations and Utility Installations, which can reasonably be repaired in 6 months or less from the date of the damage or destruction, and the cost thereof does not exceed a sum equal to 12 month’s Base Rent. Lessor shall notify Lessee in writing within 30 days from the date of the damage or destruction as to whether or not the damage is Partial or Total.

(b) “Premises Total Destruction” shall mean damage or destruction to the improvements on the Premises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which cannot reasonably be repaired in 6 months or less from the date of the damage or destruction and/or the cost thereof exceeds a sum equal to 12 month’s Base Rent. Lessor shall notify Lessee in writing within 30 days from the date of the damage or destruction as to whether or not the damage is Partial or Total.

(c) “Insured Loss” shall mean damage or destruction to improvements on the Premises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which was caused by an event required to be covered by the insurance described in Paragraph 8.3(a), irrespective of any deductible amounts or coverage limits involved.

(d) “Replacement Cost” shall mean the cost to repair or rebuild the improvements owned by Lessor at the time of the occurrence to their condition existing immediately prior thereto, including demolition, debris removal and upgrading required by the operation of Applicable Requirements, and without deduction for depreciation.

(e) “Hazardous Substance Condition” shall mean the occurrence or discovery of a condition involving the presence of, or a contamination by, a Hazardous Substance, in, on, or under the Premises which requires restoration.

9.2 Partial Damage - Insured Loss . If a Premises Partial Damage that is an Insured Loss occurs, then Lessor shall, at Lessor’s expense, repair such damage (but not Lessee’s Trade Fixtures or Lessee Owned Alterations and Utility Installations) as soon as reasonably possible and this Lease shall continue in full force and effect. Notwithstanding the foregoing, if the required insurance was not in force or the insurance proceeds are not sufficient to effect such repair, the Insuring Party shall promptly contribute the shortage in proceeds as and when required to complete said repairs.

9.3 Partial Damage - Uninsured Loss . If a Premises Partial Damage that is not an Insured Loss occurs, Lessor may either: (i) repair such damage as soon as reasonably possible at Lessor’s expense (subject to reimbursement pursuant to Paragraph 4.2), in which event this Lease shall continue in full force and effect, or (ii) terminate this Lease by giving written notice to Lessee within 30 days after receipt by Lessor of knowledge of the occurrence of such damage. Such termination shall be effective 60 days following the date of such notice. In the event Lessor elects to terminate this Lease, Lessee shall have the right within 10 days after receipt of the termination notice to give written notice to Lessor of Lessee’s commitment to pay for the repair of such damage without reimbursement from Lessor. Lessee shall provide Lessor with said funds or satisfactory assurance thereof within 30 days after making such commitment. In such event this Lease shall continue in full force and effect, and Lessor shall proceed to make such repairs as soon as reasonably possible after the required funds are available. If Lessee does not make the required commitment, this Lease shall terminate as of the date specified in the termination notice.

9.4 Total Destruction . Notwithstanding any other provision hereof, if a Premises Total Destruction occurs, this Lease shall terminate, at Lessee’s option, 60 days following such Destruction.

        9.5 Damage Near End of Term . If at any time during the last 6 months of this Lease there is damage for which the cost to repair exceeds one month’s Base Rent, whether or not an Insured Loss, Lessor or Lessee may terminate this Lease effective 60 days following the date of occurrence of such damage by giving a written termination notice to the other party within 30 days after the date of occurrence of such damage.

9.6 Abatement of Rent; Lessee’s Remedies .

                (a) Abatement . In the event of Premises Partial Damage or Premises Total Destruction or a Hazardous Substance Condition for which Lessee is not responsible under this Lease, the Rent payable by Lessee for the period required for the repair, remediation or restoration of such damage shall be abated in proportion to the degree to which Lessee’s use of the Premises is impaired. All other obligations of Lessee hereunder shall be performed by Lessee, and Lessor shall have no liability for any such damage, destruction, remediation, repair or restoration except as provided herein.

(b) Remedies . If Lessor is obligated to repair or restore the Premises and does not commence, in a substantial and meaningful way, such repair or restoration within 30 days after such obligation shall accrue, Lessee may, at any time prior to the commencement of such repair or restoration, give written notice to Lessor and to any Lenders of which Lessee has actual notice, of Lessee’s election to terminate this Lease on a date not less than 60 days following the giving of such notice. If Lessee gives such notice and such repair or restoration is not commenced within 30 days thereafter, this Lease shall terminate as of the date specified in said notice. If the repair or restoration is commenced within such 30 days, this Lease shall continue in full force and effect. “Commence” shall mean either the unconditional authorization of the preparation of the required plans, or the beginning of the actual work on the Premises, whichever first occurs.

 

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9.7 Termination; Advance Payments . Upon termination of this Lease pursuant to Paragraph 6.2(g) or Paragraph 9, an equitable adjustment shall be made concerning advance Base Rent and any other advance payments made by Lessee to Lessor. Lessor shall, in addition, return to Lessee so much of Lessee’s Security Deposit as has not been, or is not then required to be, used by Lessor.

10. Real Property Taxes .

10.1 Definition . As used herein, the term “ Real Property Taxes ” shall include any form of assessment; real estate, general, special, ordinary or extraordinary, or rental levy or tax (other than inheritance, personal income or estate taxes); improvement bond; and/or license fee imposed upon or levied against any legal or equitable interest of Lessor in the Project, Lessor’s right to other income therefrom, and/or Lessor’s business of leasing, by any authority having the direct or indirect power to tax and where the funds are generated with reference to the Project address and where the proceeds so generated are to be applied by the city, county or other local taxing authority of a jurisdiction within which the Project is located. The term “Real Property Taxes” shall also include any tax, fee, levy, assessment or charge, or any increase therein: (i) imposed by reason of events occurring during the term of this Lease, including but not limited to, a change in the ownership of the Project, (ii) imposed by reason of a change in the improvements thereon, and/or (iii) levied or assessed on machinery or equipment provided by Lessor to Lessee pursuant to this Lease. In calculating Real Property Taxes for any calendar year, the Real Property Taxes for any real estate tax year shall be included in the calculation of Real Property Taxes for such calendar year based upon the number of days which such calendar year and tax year have in common.

10.2 Payment of Taxes . Except as otherwise provided in Paragraph 10.3, Lessor shall pay the Real Property Taxes applicable to the Project, and said payments shall be included in the calculation of Common Area Operating Expenses in accordance with the provisions of Paragraph 4.2.

10.3 Additional Improvements . Common Area Operating Expenses shall not include Real Property Taxes specified in the tax assessor’s records and work sheets as being caused by additional improvements placed upon the Project by other lessees or by Lessor for the exclusive enjoyment of such other lessees. Notwithstanding Paragraph 10.2 hereof, Lessee shall, however, pay to Lessor at the time Common Area Operating Expenses are payable under Paragraph 4.2, the entirety of any increase in Real Property Taxes if assessed solely by reason of Alterations, Trade Fixtures or Utility Installations placed upon the Premises by Lessee or at Lessee’s request or by reason of any alterations or improvements to the Premises made by Lessor subsequent to the execution of this Lease by the Parties.

10.4 Joint Assessment . If the Building is not separately assessed, Real Property Taxes allocated to the Building shall be an equitable proportion of the Real Property Taxes for all of the land and improvements included within the tax parcel assessed, such proportion to be determined by Lessor from the respective valuations assigned in the assessor’s work sheets or such other information as may be reasonably available. Lessor’s reasonable determination thereof, in good faith, shall be conclusive.

10.5 Personal Property Taxes . Lessee shall pay prior to delinquency all taxes assessed against and levied upon Lessee Owned Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all personal property of Lessee contained in the Premises. When possible, Lessee shall cause its Lessee Owned Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all other personal property to be assessed and billed separately from the real property of Lessor. If any of Lessee’s said property shall be assessed with Lessor’s real property, Lessee shall pay Lessor the taxes attributable to Lessee’s property within 10 days after receipt of a written statement setting forth the taxes applicable to Lessee’s property.

11. Utilities and Services. Lessee shall pay for all water, gas, heat, light, power, telephone, trash disposal and other utilities and services supplied to the Premises, together with any taxes thereon. Lessor represents that, to the extent available from the applicable utility providers, all utilities supplied to the Premises will be by direct meter. Lessee agrees that Lessor shall have the right to delay such direct meter service for the utilities servicing the Premises until another tenant occupies all or a portion of the unoccupied portion of the Building. In the event such direct metering is unavailable for one or more of the utilities, Lessor shall install, at its sole cost and expense, sub-meters to measure such utilities servicing the Premises. Notwithstanding the provisions of Paragraph 4.2, if one or more utilities are not separately metered for the Premises (and Lessor is unable to sub-meter such utilities) at the time the Building is occupied by one or more tenants other than Lessee, and Lessor at any time reasonably determines in good faith that Lessee is using a disproportionate amount of such commonly metered utilities, then Lessee shall pay to Lessee, within 30 days after receipt of written notice from Lessor, the amount equal to the amount reasonably allocated by Lessor to the Premises for such increased costs. Lessor shall furnish reasonable evidence of such disproportionate usage simultaneously with such written notice. In the event of any interruption of utilities or services to the Premises for more than five (5) consecutive days that is caused by the negligence or willful misconduct of Lessor or Lessor’s agents, employees, or contractors, and such interruption unreasonably interferes with Lessee’s use of the Premises, Lessee’s rent obligations shall be abated until such time as such utilities or services are restored.

12. Assignment and Subletting .

12.1 Lessor’s Consent Required .

(a) Except as otherwise set forth in Paragraph 55, Lessee shall not voluntarily or by operation of law assign, transfer, mortgage or encumber (collectively, “assign or assignment” ) or sublet all or any part of Lessee’s interest in this Lease or in the Premises without Lessor’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed.

(b) Unless Lessee is a corporation and its stock is publicly traded on a national stock exchange, and except as otherwise set forth in Paragraph 55, a change in the control of Lessee shall constitute an assignment requiring consent. The transfer, on a cumulative basis, of 50% or more of the voting control of Lessee shall constitute a change in control for this purpose.

 

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(c) Intentionally deleted.

(d) An assignment or subletting without consent (where such consent was required) shall, at Lessor’s option, be a Default curable after notice per Paragraph 13.1(c), or a noncurable Breach without the necessity of any notice and grace period. If Lessor elects to treat such unapproved assignment or subletting as a noncurable Breach, Lessor may terminate this Lease as set forth in Article 13.

(e) Intentionally deleted

(f) Lessor may reasonably withhold consent to a proposed assignment or subletting if Lessee is in Default at the time consent is requested.

(g) Notwithstanding the foregoing, allowing a de minimis portion of the Premises, ie. 20 square feet or less, to be used by a third party vendor in connection with the installation of a vending machine or payphone shall not constitute a subletting.

12.2 Terms and Conditions Applicable to Assignment and Subletting .

(a) Regardless of Lessor’s consent, no assignment or subletting shall: (i) be effective without the express written assumption by such assignee or sublessee of the obligations of Lessee under this Lease, (ii) release Lessee of any obligations hereunder, or (iii) alter the primary liability of Lessee for the payment of Rent or for the performance of any other obligations to be performed by Lessee.

(b) Lessor may accept Rent or performance of Lessee’s obligations from any person other than Lessee pending approval or disapproval of an assignment. Neither a delay in the approval or disapproval of such assignment nor the acceptance of Rent or performance shall constitute a waiver or estoppel of Lessor’s right to exercise its remedies for Lessee’s Default or Breach.

(c) Lessor’s consent to any assignment or subletting shall not constitute consent to any subsequent assignment or subletting.

(d) In the event of any Default or Breach by Lessee, Lessor may proceed directly against Lessee, any Guarantors or anyone else responsible for the performance of Lessee’s obligations under this Lease, including any assignee or sublessee, without first exhausting Lessor’s remedies against any other person or entity responsible therefore to Lessor, or any security held by Lessor.

(e) Each request for consent to an assignment or subletting shall be in writing, accompanied by information relevant to Lessor’s determination as to the financial and operational responsibility and appropriateness of the proposed assignee or sublessee, including but not limited to the intended use and/or required modification of the Premises, if any, together with a fee of $500 as consideration for Lessor’s considering and processing said request. Lessee agrees to provide Lessor with such other or additional information and/or documentation as may be reasonably requested. (See also Paragraph 36)

(f) Any assignee of, or sublessee under, this Lease shall, by reason of accepting such assignment, entering into such sublease, or entering into possession of the Premises or any portion thereof, be deemed to have assumed and agreed to conform and comply with each and every term, covenant, condition and obligation herein to be observed or performed by Lessee during the term of said assignment or sublease, other than such obligations as are contrary to or inconsistent with provisions of an assignment or sublease to which Lessor has specifically consented to in writing.

12.3 Additional Terms and Conditions Applicable to Subletting . The following terms and conditions shall apply to any subletting by Lessee of all or any part of the Premises and shall be deemed included in all subleases under this Lease whether or not expressly incorporated therein:

(a) Lessee hereby assigns and transfers to Lessor all of Lessee’s interest in all Rent payable on any sublease, and Lessor may collect such Rent and apply same toward Lessee’s obligations under this Lease; provided, however, that until a Breach shall occur in the performance of Lessee’s obligations, Lessee may collect said Rent. In the event that the amount collected by Lessor exceeds Lessee’s then outstanding obligations any such excess shall be refunded to Lessee. Lessor shall not, by reason of the foregoing or any assignment of such sublease, nor by reason of the collection of Rent, be deemed liable to the sublessee for any failure of Lessee to perform and comply with any of Lessee’s obligations to such sublessee. Lessee hereby irrevocably authorizes and directs any such sublessee, upon receipt of a written notice from Lessor stating that a Breach exists in the performance of Lessee’s obligations under this Lease, to pay to Lessor all Rent due and to become due under the sublease. Sublessee shall rely upon any such notice from Lessor and shall pay all Rents to Lessor without any obligation or right to inquire as to whether such Breach exists, notwithstanding any claim from Lessee to the contrary.

(b) In the event of a Breach by Lessee, Lessor may, at its option, require sublessee to attorn to Lessor, in which event Lessor shall undertake the obligations of the sublessor under such sublease from the time of the exercise of said option to the expiration of such sublease; provided, however, Lessor shall not be liable for any prepaid rents or security deposit paid by such sublessee to such sublessor or for any prior Defaults or Breaches of such sublessor.

(c) Any matter requiring the consent of the sublessor under a sublease shall also require the consent of Lessor.

(d) No sublessee shall further assign or sublet all or any part of the Premises without Lessor’s prior written consent.

(e) Lessor shall deliver a copy of any notice of Default or Breach by Lessee to the sublessee, who shall have the right to cure the Default of Lessee within the grace period, if any, specified in such notice. The sublessee shall have a right of reimbursement and offset from and against Lessee for any such Defaults cured by the sublessee.

13. Default; Breach; Remedies .

13.1 Default; Breach . A “Default” is defined as a failure by the Lessee to comply with or perform any of the terms, covenants,

 

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conditions or Rules and Regulations under this Lease. A “Breach” is defined as the occurrence of one or more of the following Defaults, and the failure of Lessee to cure such Default within any applicable grace period:

(a) The abandonment of the Premises, or the vacating of the Premises without providing a commercially reasonable level of security, or where the coverage of the property insurance described in Paragraph 8.3 is jeopardized as a result thereof, or without providing reasonable assurances to minimize potential vandalism.

(b) The failure of Lessee to make any payment of Rent or any Security Deposit required to be made by Lessee hereunder, whether to Lessor or to a third party, when due, to provide reasonable evidence of insurance or surety bond, or to fulfill any obligation under this Lease which endangers or threatens life or property, where such failure continues for a period of 5 business days following written notice to Lessee. THE ACCEPTANCE BY LESSOR OF A PARTIAL PAYMENT OF RENT OR SECURITY DEPOSIT SHALL NOT CONSTITUTE A WAIVER OF ANY OF LESSOR’S RIGHTS, INCLUDING LESSOR’S RIGHT TO RECOVER POSSESSION OF THE PREMISES.

(c) The failure of Lessee to allow Lessor and/or its agents access to the Premises or the commission of waste, act or acts constituting public or private nuisance, and/or an illegal activity on the Premises by Lessee, where such actions continue for a period of 3 business days following written notice to Lessee.

(d) The failure by Lessee to provide (i) reasonable written evidence of compliance with Applicable Requirements, (ii) intentionally deleted, (iii) the rescission of an unauthorized assignment or subletting, (iv) an Estoppel Certificate or financial statements, (v) a requested subordination, (vi) intentionally deleted, (vii) any document requested under Paragraph 41, (viii) material data safety sheets (MSDS), or (ix) any other documentation or information which Lessor may reasonably require of Lessee under the terms of this Lease, where any such failure continues for a period of 10 business days following written notice to Lessee.

(e) A Default by Lessee as to the terms, covenants, conditions or provisions of this Lease, or of the rules adopted under Paragraph 2.9 hereof, other than those described in subparagraphs 13.1(a), (b), (c) or (d), above, where such Default continues for a period of 30 days after written notice; provided, however, that if the nature of Lessee’s Default is such that more than 30 days are reasonably required for its cure, then it shall not be deemed to be a Breach if Lessee commences such cure within said 30 day period and thereafter diligently prosecutes such cure to completion.

(f) The occurrence of any of the following events: (i) the making of any general arrangement or assignment for the benefit of creditors; (ii) becoming a “debtor” as defined in 11 U.S.C. § 101 or any successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within 60 days); (iii) the appointment of a trustee or receiver to take possession of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest in this Lease, where possession is not restored to Lessee within 60 days; or (iv) the attachment, execution or other judicial seizure of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest in this Lease, where such seizure is not discharged within 60 days; provided, however, in the event that any provision of this subparagraph is contrary to any applicable law, such provision shall be of no force or effect, and not affect the validity of the remaining provisions.

(g) The discovery that any financial statement of Lessee or of any Guarantor given to Lessor was materially false.

13.2 Remedies . If Lessee fails to perform any of its affirmative duties or obligations, within 10 days after written notice (or in case of an emergency, without notice), Lessor may, at its option, perform such duty or obligation on Lessee’s behalf, including but not limited to the obtaining of reasonably required bonds, insurance policies, or governmental licenses, permits or approvals. Lessee shall pay to Lessor an amount equal to the costs and expenses incurred by Lessor in such performance upon receipt of an invoice therefor. In the event of a Breach, Lessor may, with or without further notice or demand, and without limiting Lessor in the exercise of any right or remedy which Lessor may have by reason of such Breach:

                (a) Terminate Lessee’s right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession to Lessor. In such event Lessor shall be entitled to recover from Lessee: (i) the unpaid Rent which had been earned at the time of termination; (ii) the worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that the Lessee proves could have been reasonably avoided; (iii) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that the Lessee proves could be reasonably avoided; and (iv) any other amount necessary to compensate Lessor for all the detriment proximately caused by the Lessee’s failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, including but not limited to the cost of recovering possession of the Premises, expenses of reletting, including necessary renovation and alteration of the Premises, reasonable attorneys’ fees, and that portion of any leasing commission paid by Lessor in connection with this Lease applicable to the unexpired term of this Lease. The worth at the time of award of the amount referred to in provision (iii) of the immediately preceding sentence shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of the District within which the Premises are located at the time of award plus one percent. Efforts by Lessor to mitigate damages caused by Lessee’s Breach of this Lease shall not waive Lessor’s right to recover any damages to which Lessor is otherwise entitled. If termination of this Lease is obtained through the provisional remedy of unlawful detainer, Lessor shall have the right to recover in such proceeding any unpaid Rent and damages as are recoverable therein, or Lessor may reserve the right to recover all or any part thereof in a separate suit. If a notice and grace period required under Paragraph 13.1 was not previously given, a notice to pay rent or quit, or to perform or quit given to Lessee under the unlawful detainer statute shall also constitute the notice required by Paragraph 13.1. In such case, the applicable grace period required by Paragraph 13.1 and the unlawful detainer statute shall run concurrently, and the failure of Lessee to cure the Default within the greater of the two such grace periods shall constitute both an unlawful detainer and a Breach of this Lease entitling Lessor to the remedies provided for in this Lease and/or by said statute.

(b) Continue the Lease and Lessee’s right to possession and recover the Rent as it becomes due, in which event Lessee may sublet or assign, subject only to reasonable limitations. Acts of maintenance, efforts to relet, and/or the appointment of a receiver to protect the Lessor’s interests, shall not constitute a termination of the Lessee’s right to possession.

 

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(c) Pursue any other remedy now or hereafter available under the laws or judicial decisions of the state wherein the Premises are located. The expiration or termination of this Lease and/or the termination of Lessee’s right to possession shall not relieve Lessee from liability under any indemnity provisions of this Lease as to matters occurring or accruing during the term hereof or by reason of Lessee’s occupancy of the Premises.

13.3 Inducement Recapture . Intentionally deleted.

13.4 Late Charges . Lessee hereby acknowledges that late payment by Lessee of Rent will cause Lessor to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed upon Lessor by any Lender. Accordingly, if any Rent shall not be received by Lessor within 5 days after such amount shall be due, and such Rent is not paid within three (3) business days after written notice from Lessor following such initial 5 day period, then Lessee shall immediately pay to Lessor a one-time late charge equal to 10% of each such overdue amount or $100, whichever is greater. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Lessor will incur by reason of such late payment. Acceptance of such late charge by Lessor shall in no event constitute a waiver of Lessee’s Default or Breach with respect to such overdue amount, nor prevent the exercise of any of the other rights and remedies granted hereunder. Notwithstanding anything to the contrary contained herein, Lessee shall not be required to pay such late charge the first time in any 12-month period that Lessee fails to pay Rent went due.

13.5 Interest . Any monetary payment due Lessor hereunder, other than late charges, not received by Lessor, when due shall bear interest from the 31st day after it was due. The interest ( “Interest” ) charged shall be computed at the rate of 10% per annum but shall not exceed the maximum rate allowed by law. Interest is payable in addition to the potential late charge provided for in Paragraph 13.4.

13.6 Breach by Lessor .

(a) Notice of Breach . Lessor shall not be deemed in breach of this Lease unless Lessor fails to perform an obligation required to be performed by Lessor within 30 days after receipt by Lessor of written notice specifying wherein such obligation of Lessor has not been performed (unless such failure materially and adversely interferes with Lessee’s use of the Premises, in which case Lessor shall be required to cure such failure within a reasonable time under the circumstances); provided, however, that if the nature of Lessor’s obligation is such that more than 30 days are reasonably required for its performance, then Lessor shall not be in breach if performance is commenced within such 30 day period and thereafter diligently pursued to completion.

(b) Performance by Lessee on Behalf of Lessor . In the event that neither Lessor nor Lender cures said breach within the periods set forth in Paragraph 13.6(a), or if having commenced said cure they do not diligently pursue it to completion, then Lessee may elect to cure said breach at Lessee’s expense and offset from Rent the actual and reasonable cost to perform such cure, provided however, that such offset shall not exceed an amount equal to the greater of one month’s Base Rent or the Security Deposit, reserving Lessee’s right to reimbursement from Lessor for any such expense in excess of such offset. Lessee shall document the cost of said cure and supply said documentation to Lessor.

14. Condemnation . If the Premises or any portion thereof are taken under the power of eminent domain or sold under the threat of the exercise of said power (collectively “Condemnation” ), this Lease shall terminate as to the part taken as of the date the condemning authority takes title or possession, whichever first occurs. If more than 10% of the floor area of the Unit, or more than 25% of the parking spaces is taken by Condemnation, Lessee may, at Lessee’s option, to be exercised in writing within 10 days after Lessor shall have given Lessee written notice of such taking (or in the absence of such notice, within 10 days after the condemning authority shall have taken possession) terminate this Lease as of the date the condemning authority takes such possession. If Lessee does not terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the portion of the Premises remaining, except that the Base Rent shall be reduced in proportion to the reduction in utility of the Premises caused by such Condemnation. Condemnation awards and/or payments shall be the property of Lessor, whether such award shall be made as compensation for diminution in value of the leasehold, the value of the part taken, or for severance damages; provided, however, that Lessee shall be entitled to any compensation paid by the condemnor for Lessee’s relocation expenses, loss of business goodwill and/or Trade Fixtures, without regard to whether or not this Lease is terminated pursuant to the provisions of this Paragraph. All Alterations and Utility Installations made to the Premises by Lessee, for purposes of Condemnation only, shall be considered the property of the Lessee and Lessee shall be entitled to any and all compensation which is payable therefor. In the event that this Lease is not terminated by reason of the Condemnation, Lessor shall repair any damage to the Premises caused by such Condemnation.

15. Brokerage Fees .

15.1 Additional Commission . In addition to the payments owed pursuant to Paragraph 1.10 above, and unless Lessor and the Brokers otherwise agree in writing, Lessor agrees that: (a) if Lessee exercises any Option, (b) if Lessee or anyone affiliated with Lessee acquires from Lessor any rights to the Premises or other premises owned by Lessor and located within the Project, (c) if Lessee remains in possession of the Premises, with the consent of Lessor, after the expiration of this Lease, or (d) if Base Rent is increased, whether by agreement or operation of an escalation clause herein, then, Lessor shall pay Brokers a fee in accordance with the fee schedule of the Brokers in effect at the time the Lease was executed.

15.2 Assumption of Obligations . Any buyer or transferee of Lessor’s interest in this Lease shall be deemed to have assumed Lessor’s obligation hereunder. Brokers shall be third party beneficiaries of the provisions of Paragraphs 1.10, 15, 22 and 31. If Lessor fails to pay to Brokers any amounts due as and for brokerage fees pertaining to this Lease when due, then such amounts shall accrue Interest. In addition, if Lessor fails to pay any amounts to Lessee’s Broker when due, Lessee’s Broker may send written notice to Lessor and Lessee of such failure and if Lessor fails to pay

 

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such amounts within 10 days after said notice, Lessee shall pay said monies to its Broker and offset such amounts against Rent. In addition, Lessee’s Broker shall be deemed to be a third party beneficiary of any commission agreement entered into by and/or between Lessor and Lessor’s Broker for the limited purpose of collecting any brokerage fee owed.

15.3 Representations and Indemnities of Broker Relationships . Lessee and Lessor each represent and warrant to the other that it has had no dealings with any person, firm, broker or finder (other than the Brokers, if any) in connection with this Lease, and that no one other than said named Brokers is entitled to any commission or finder’s fee in connection herewith. Lessee and Lessor do each hereby agree to indemnify, protect, defend and hold the other harmless from and against liability for compensation or charges which may be claimed by any such unnamed broker, finder or other similar party by reason of any dealings or actions of the indemnifying Party, including any costs, expenses, attorneys’ fees reasonably incurred with respect thereto.

16. Estoppel Certificates .

(a) Each Party (as “Responding Party” ) shall within 10 days after written notice from the other Party (the “Requesting Party” ) execute, acknowledge and deliver to the Requesting Party a statement in writing in form similar to the then most current “Estoppel Certificate” form published by the AIR Commercial Real Estate Association, plus such additional information, confirmation and/or statements as may be reasonably requested by the Requesting Party. If Lessor desires to finance, refinance, or sell the Premises, or any part thereof, Lessee shall within 10 days after written notice from Lessor deliver to any potential lender or purchaser designated by Lessor such financial statements as may be reasonably required by such lender or purchaser, including but not limited to Lessee’s financial statements for the past 3 years. All such financial statements shall be received by Lessor and such lender or purchaser in confidence and shall be used only for the purposes herein set forth.

17. Definition of Lessor . The term “Lessor” as used herein shall mean the owner or owners at the time in question of the fee title to the Premises, or, if this is a sublease, of the Lessee’s interest in the prior lease. In the event of a transfer of Lessor’s title or interest in the Premises or this Lease, Lessor shall deliver to the transferee or assignee (in cash or by credit) any unused Security Deposit held by Lessor. Upon such transfer or assignment and delivery of the Security Deposit, as aforesaid, the prior Lessor shall be relieved of all liability with respect to the obligations and/or covenants under this Lease thereafter to be performed by the Lessor, provided successor assumes all obligations. Subject to the foregoing, the obligations and/or covenants in this Lease to be performed by the Lessor shall be binding only upon the Lessor as hereinabove defined.

18. Severability . The invalidity of any provision of this Lease, as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof.

19. Days . Unless otherwise specifically indicated to the contrary, the word “days” as used in this Lease shall mean and refer to calendar days.

20. Limitation on Liability . The obligations of Lessor under this Lease shall not constitute personal obligations of Lessor, or its partners, members, directors, officers or shareholders, and Lessee shall look to Lessor’s interest in the Project, and to no other assets of Lessor, for the satisfaction of any liability of Lessor with respect to this Lease, and shall not seek recourse against Lessor’s partners, members, directors, officers or shareholders, or any of their personal assets for such satisfaction.

21. Time of Essence . Time is of the essence with respect to the performance of all obligations to be performed or observed by the Parties under this Lease.

22. No Prior or Other Agreements . This Lease contains all agreements between the Parties with respect to any matter mentioned herein, and no other prior or contemporaneous agreement or understanding shall be effective.

23. Notices.

23.1 Notice Requirements . All notices required or permitted by this Lease or applicable law shall be in writing and may be delivered in person (by hand or by courier) or may be sent by certified or registered mail or U.S. Postal Service Express Mail, with postage prepaid, or by overnight courier, facsimile or email, and shall be deemed sufficiently given if served in a manner specified in this Paragraph 23. The addresses noted adjacent to a Party’s signature on this Lease shall be that Party’s address for delivery or mailing of notices. Either Party may by written notice to the other specify a different address for notice. A copy of all notices to Lessor shall be concurrently transmitted to such party or parties at such addresses as Lessor may from time to time hereafter designate in writing.

        23.2 Date of Notice . Any notice sent by registered or certified mail, return receipt requested, shall be deemed given on the date of delivery shown on the receipt card, or if no delivery date is shown, the postmark thereon. Notices delivered by United States Express Mail or overnight courier that guarantees next day delivery shall be deemed given 24 hours after delivery of the same to the Postal Service or courier. Notices transmitted by facsimile transmission or by email shall be deemed delivered upon confirmation of receipt (if by fax, a confirmation report from a fax machine is sufficient), provided a copy is also delivered via overnight courier or mail, as permitted in Paragraph 23.1. If notice is received on a Saturday, Sunday or legal holiday, it shall be deemed received on the next business day.

24. Waivers .

(a) No waiver by Lessor of the Default or Breach of any term, covenant or condition hereof by Lessee, shall be deemed a waiver of any other term, covenant or condition hereof, or of any subsequent Default or Breach by Lessee of the same or of any other term, covenant or condition hereof. Lessor’s consent to, or approval of, any act shall not be deemed to render unnecessary the obtaining of Lessor’s consent to, or approval of, any subsequent or similar act by Lessee, or be construed as the basis of an estoppel to enforce the provision or provisions of this Lease requiring such consent.

(b) The acceptance of Rent by Lessor shall not be a waiver of any Default or Breach by Lessee. Any payment by Lessee may be accepted by Lessor on account of moneys or damages due Lessor, notwithstanding any qualifying statements or conditions made by Lessee in connection therewith, which such statements and/or conditions shall be of no force or effect whatsoever unless specifically agreed to in writing by Lessor at or before the time of deposit of such payment.

 

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(c) THE PARTIES AGREE THAT THE TERMS OF THIS LEASE SHALL GOVERN WITH REGARD TO ALL MATTERS RELATED THERETO AND HEREBY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE TO THE EXTENT THAT SUCH STATUTE IS INCONSISTENT WITH THIS LEASE.

25. Disclosures Regarding The Nature of a Real Estate Agency Relationship . Intentionally deleted.

26. No Right To Holdover . Lessee has no right to retain possession of the Premises or any part thereof beyond the expiration or termination of this Lease. In the event that Lessee holds over, then the Base Rent shall be increased to 125% of the Base Rent applicable immediately preceding the expiration or termination for the first month and then increase to 150% of the Base Rent thereafter. Holdover Base Rent shall be calculated on monthly basis. Nothing contained herein shall be construed as consent by Lessor to any holding over by Lessee.

27. Cumulative Remedies . No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.

28. Covenants and Conditions; Construction of Agreement . All provisions of this Lease to be observed or performed by Lessee are both covenants and conditions. In construing this Lease, all headings and titles are for the convenience of the Parties only and shall not be considered a part of this Lease. Whenever required by the context, the singular shall include the plural and vice versa. This Lease shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it.

29. Binding Effect; Choice of Law . This Lease shall be binding upon the parties, their personal representatives, successors and assigns and be governed by the laws of the State in which the Premises are located. Any litigation between the Parties hereto concerning this Lease shall be initiated in the county in which the Premises are located.

30. Subordination; Attornment; Non-Disturbance .

30.1 Subordination . This Lease and any Option granted hereby shall be subject and subordinate to any ground lease, mortgage, deed of trust, or other hypothecation or security device (collectively, “Security Device” ), now or hereafter placed upon the Premises, to any and all advances made on the security thereof, and to all renewals, modifications, and extensions thereof. Lessee agrees that the holders of any such Security Devices (in this Lease together referred to as “Lender” ) shall have no liability or obligation to perform any of the obligations of Lessor under this Lease. Any Lender may elect to have this Lease and/or any Option granted hereby superior to the lien of its Security Device by giving written notice thereof to Lessee, whereupon this Lease and such Options shall be deemed prior to such Security Device, notwithstanding the relative dates of the documentation or recordation thereof.

30.2 Attornment . In the event that Lessor transfers title to the Premises, or the Premises are acquired by another upon the foreclosure or termination of a Security Device to which this Lease is subordinated (i) Lessee shall, subject to the non-disturbance provisions of Paragraph 30.3, attorn to such new owner, and upon request, enter into a new lease, containing all of the terms and provisions of this Lease, with such new owner for the remainder of the term hereof, or, at the election of the new owner, this Lease will automatically become a new lease between Lessee and such new owner, and (ii) Lessor shall thereafter be relieved of any further obligations hereunder and such new owner shall assume all of Lessor’s obligations, except that such new owner shall not: (a) be liable for any act or omission of any prior lessor or with respect to events occurring prior to acquisition of ownership; (b) be subject to any offsets or defenses which Lessee might have against any prior lessor, (c) be bound by prepayment of more than one month’s rent, or (d) be liable for the return of any security deposit paid to any prior lessor which was not paid or credited to such new owner.

30.3 Non-Disturbance . With respect to Security Devices entered into by Lessor after the execution of this Lease, Lessee’s subordination of this Lease shall be subject to receiving a commercially reasonable non-disturbance agreement (a “Non-Disturbance Agreement” ) from the Lender which Non-Disturbance Agreement provides that Lessee’s possession of the Premises, and this Lease, including any options to extend the term hereof, will not be disturbed so long as Lessee is not in Breach hereof and attorns to the record owner of the Premises. Further, within 60 days after the execution of this Lease, Lessor shall use its commercially reasonable efforts to obtain a Non-Disturbance Agreement from the holder of any pre-existing Security Device which is secured by the Premises. In the event that Lessor is unable to provide the Non-Disturbance Agreement within said 60 days, then Lessee may, at Lessee’s option, directly contact Lender and attempt to negotiate for the execution and delivery of a Non-Disturbance Agreement.

30.4 Self-Executing . The agreements contained in this Paragraph 30 shall be effective without the execution of any further documents; provided, however, that, upon written request from Lessor or a Lender in connection with a sale, financing or refinancing of the Premises, Lessee and Lessor shall execute such further writings as may be reasonably required to separately document any subordination, attornment and/or Non-Disturbance Agreement provided for herein.

31. Attorneys’ Fees . If any Party or Broker brings an action or proceeding involving the Premises whether founded in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys’ fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding is pursued to decision or judgment. The term, “Prevailing Party” shall include, without limitation, a Party or Broker who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the other Party or Broker of its claim or defense. The attorneys’ fees award shall not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse all attorneys’ fees reasonably incurred.

32. Lessor’s Access; Showing Premises; Repairs . Lessor and Lessor’s agents shall have the right to enter the Premises at any time, in the case of an emergency, and otherwise at reasonable times after not less than 24 hours prior notice for the purpose of showing the same to

 

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prospective purchasers, lenders, or tenants (during the last 9 months of the term only), and making such alterations, repairs, improvements or additions to the Premises as Lessor may deem necessary or desirable and the erecting, using and maintaining of utilities, services, pipes and conduits through the Premises and/or other premises as long as there is no material adverse effect on Lessee’s use of the Premises. All such activities shall be without abatement of rent or liability to Lessee.

33. Auctions . Lessee shall not conduct, nor permit to be conducted, any auction upon the Premises without Lessor’s prior written consent. Lessor shall not be obligated to exercise any standard of reasonableness in determining whether to permit an auction.

34. Signs . Lessor may place on the Premises ordinary “For Sale” signs at any time and ordinary “For Lease” signs during the last 6 months of the term hereof. Except for ordinary “For Sublease” signs which may be placed only on the Premises, Lessee shall not place any sign upon the Project without Lessor’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed. All signs must comply with all Applicable Requirements. Notwithstanding the foregoing, subject to Lessor’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, Lessee shall have the right to place signs with company name and address on and around the Project’s driveways and trucking vestibules to provide guidance and direction to freight transportation providers.

35. Termination; Merger . Unless specifically stated otherwise in writing by Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual termination or cancellation hereof, or a termination hereof by Lessor for Breach by Lessee, shall automatically terminate any sublease or lesser estate in the Premises; provided, however, that Lessor may elect to continue any one or all existing subtenancies. Lessor’s failure within 10 days following any such event to elect to the contrary by written notice to the holder of any such lesser interest, shall constitute Lessor’s election to have such event constitute the termination of such interest.

36. Consents . Except as otherwise provided herein, wherever in this Lease the consent of a Party is required to an act by or for the other Party, such consent shall not be unreasonably withheld or delayed. Lessor’s consent to any act, assignment or subletting shall not constitute an acknowledgment that no Default or Breach by Lessee of this Lease exists, nor shall such consent be deemed a waiver of any then existing Default or Breach, except as may be otherwise specifically stated in writing by Lessor at the time of such consent. The failure to specify herein any particular condition to Lessor’s consent shall not preclude the imposition by Lessor at the time of consent of such further or other conditions as are then reasonable with reference to the particular matter for which consent is being given. In the event that either Party disagrees with any determination made by the other hereunder and reasonably requests the reasons for such determination, the determining party shall furnish its reasons in writing and in reasonable detail within 10 business days following such request.

37. Guarantor .

37.1 Execution . The Guarantors, if any, shall each execute a guaranty in the form most recently published by the AIR Commercial Real Estate Association.

37.2 Default . It shall constitute a Default of the Lessee if any Guarantor fails or refuses, upon request to provide: (a) evidence of the execution of the guaranty, including the authority of the party signing on Guarantor’s behalf to obligate Guarantor, and in the case of a corporate Guarantor, a certified copy of a resolution of its board of directors authorizing the making of such guaranty, (b) current financial statements, (c) an Estoppel Certificate, or (d) written confirmation that the guaranty is still in effect.

38. Quiet Possession . Subject to payment by Lessee of the Rent and performance of all of the covenants, conditions and provisions on Lessee’s part to be observed and performed under this Lease, Lessee shall have quiet possession and quiet enjoyment of the Premises during the term hereof.

39. Options . See Paragraph 51. If Lessee is granted any option, as defined below, then the following provisions shall apply.

39.1 Definition . “Option” shall mean: (a) the right to extend or reduce the term of or renew this Lease or to extend or reduce the term of or renew any lease that Lessee has on other property of Lessor; (b) the right of first refusal or first offer to lease either the Premises or other property of Lessor; (c) the right to purchase, the right of first offer to purchase or the right of first refusal to purchase the Premises or other property of Lessor.

39.2 Options Personal To Original Lessee . Intentionally deleted.

39.3 Multiple Options . In the event that Lessee has any multiple Options to extend or renew this Lease, a later Option cannot be exercised unless the prior Options have been validly exercised.

39.4 Effect of Default on Options .

(a) Lessee shall have no right to exercise an Option: (i) during the period commencing with the giving of any notice of Default and continuing until said Default is cured, (ii) during the period of time any Rent is unpaid (without regard to whether notice thereof is given Lessee), or (iii) during the time Lessee is in Breach of this Lease.

(b) The period of time within which an Option may be exercised shall not be extended or enlarged by reason of Lessee’s inability to exercise an Option because of the provisions of Paragraph 39.4(a).

                (c) An Option shall terminate and be of no further force or effect, notwithstanding Lessee’s due and timely exercise of the Option, if, after such exercise and prior to the commencement of the extended term or completion of the purchase, (i) Lessee fails to pay Rent for a period of 30 days after such Rent becomes due (without any necessity of Lessor to give notice thereof),or (ii) if Lessee commits a Breach of this Lease.

40. Security Measures . Lessee hereby acknowledges that the Rent payable to Lessor hereunder does not include the cost of guard service or other security measures, and that Lessor shall have no obligation whatsoever to provide same. Lessee assumes all responsibility for the protection of the Premises, Lessee, its agents and invitees and their property from the acts of third parties.

41. Reservations . Lessor reserves the right: (i) to grant, without the consent or joinder of Lessee, such easements, rights and dedications that

 

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Lessor deems necessary, (ii) to cause the recordation of parcel maps and restrictions, and (iii) to create and/or install new utility raceways, so long as such easements, rights, dedications, maps, restrictions, and utility raceways do not unreasonably interfere with the use of the Premises by Lessee. Lessee agrees to sign any documents reasonably requested by Lessor to effectuate such rights.

42. Performance Under Protest . If at any time a dispute shall arise as to any amount or sum of money to be paid by one Party to the other under the provisions hereof, the Party against whom the obligation to pay the money is asserted shall have the right to make payment “under protest” and such payment shall not be regarded as a voluntary payment and there shall survive the right on the part of said Party to institute suit for recovery of such sum. If it shall be adjudged that there was no legal obligation on the part of said Party to pay such sum or any part thereof, said Party shall be entitled to recover such sum or so much thereof as it was not legally required to pay. A Party who does not initiate suit for the recovery of sums paid “under protest” within 6 months shall be deemed to have waived its right to protest such payment.

43. Authority; Multiple Parties; Execution .

(a) If either Party hereto is a corporation, trust, limited liability company, partnership, or similar entity, each individual executing this Lease on behalf of such entity represents and warrants that he or she is duly authorized to execute and deliver this Lease on its behalf. Each Party shall, within 30 days after request, deliver to the other Party satisfactory evidence of such authority.

(b) If this Lease is executed by more than one person or entity as “Lessee”, each such person or entity shall be jointly and severally liable hereunder. It is agreed that any one of the named Lessees shall be empowered to execute any amendment to this Lease, or other document ancillary thereto and bind all of the named Lessees, and Lessor may rely on the same as if all of the named Lessees had executed such document.

(c) This Lease may be executed by the Parties in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.

44. Conflict . Any conflict between the printed provisions of this Lease and the typewritten or handwritten provisions shall be controlled by the typewritten or handwritten provisions.

45. Offer . Preparation of this Lease by either party or their agent and submission of same to the other Party shall not be deemed an offer to lease to the other Party. This Lease is not intended to be binding until executed and delivered by all Parties hereto.

46. Amendments . This Lease may be modified only in writing, signed by the Parties in interest at the time of the modification. As long as they do not materially change Lessee’s obligations hereunder, Lessee agrees to make such reasonable non-monetary modifications to this Lease as may be reasonably required by a Lender in connection with the obtaining of normal financing or refinancing of the Premises.

47. Waiver of Jury Trial . THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING INVOLVING THE PROPERTY OR ARISING OUT OF THIS AGREEMENT .

48. Arbitration of Disputes . An Addendum requiring the Arbitration of all disputes between the Parties and/or Brokers arising out of this Lease ¨ is x is not attached to this Lease.

49. Accessibility; Americans with Disabilities Act .

(a) The Premises: x have not undergone an inspection by a Certified Access Specialist (CASp). ¨ have undergone an inspection by a Certified Access Specialist (CASp) and it was determined that the Premises met all applicable construction-related accessibility standards pursuant to California Civil Code §55.51 et seq. ¨ have undergone an inspection by a Certified Access Specialist (CASp) and it was determined that the Premises did not meet all applicable construction-related accessibility standards pursuant to California Civil Code §55.51 et seq.

(b) Since compliance with the Americans with Disabilities Act (ADA) is dependent upon Lessee’s specific use of the Premises, Lessor makes no warranty or representation as to whether or not the Premises comply with ADA or any similar legislation. In the event that Lessee’s specific and unique use of the Premises requires modifications or additions to the Premises in order to be in ADA compliance, Lessee agrees to make any such necessary modifications and/or additions at Lessee’s expense.

LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.

ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AIR COMMERCIAL REAL ESTATE ASSOCIATION OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:

1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.

2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PREMISES, THE STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT AND THE SUITABILITY OF THE PREMISES FOR LESSEE’S INTENDED USE.

WARNING: IF THE PREMISES ARE LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN PROVISIONS OF THE LEASE MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OF THE STATE IN WHICH THE PREMISES ARE LOCATED.

 

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The parties hereto have executed this Lease at the place and on the dates specified above their respective signatures.

 

Executed at:     Executed at:
On:       On:  
By LESSOR:     By LESSEE:
JURUPA GATEWAY LLC     J.A. COSMETICS US, INC.
By:  

Alere Property Group LLC, sole member

     
By:  

/s/ Daniel L. Webb

    By:  

/s/ Tarang P. Amin

Name Printed: Daniel L. Webb     Name Printed: Tarang P. Amin
Title:   Vice President     Title:   Chairman and CEO
By:       By:  
Name Printed:     Name Printed:
Title:       Title:  
Address:  

###

    Address:  

###

Telephone:  

###

    Telephone:  

###

Facsimile:  

###

    Facsimile:   (                                                                                   
Email:       Email:  
Email:       Email:  
Federal ID No.     Federal ID No.

 

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BROKER:       BROKER:  
COLLIERS INTERNATIONAL     CUSHMAN & WAKEFIELD
Attn:       Attn:  
Title:       Title:  
Address:       Address:  
Telephone:   (                    )     Telephone:   (                    )
Facsimile:   (                                                                                        Facsimile:   (                                                                                   
Email:       Email:  
Federal ID No.     Federal ID No.
Broker/Agent BRE License #:     Broker/Agent BRE License #:

NOTICE: These forms are often modified to meet changing requirements of law and industry needs. Always write or call to make sure you are utilizing the most current form: AIR Commercial Real Estate Association, 500 N Brand Blvd, Suite 900, Glendale, CA 91203.

Telephone No. (213) 687-8777. Fax No.: (213) 687-8616.

© Copyright 1999 By AIR Commercial Real Estate Association.

All rights reserved. No part of these works may be reproduced in any form without permission in writing.

 

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RENT

ADJUSTMENT(S)

STANDARD LEASE ADDENDUM

 

Dated    December 9, 2015
By and Between (Lessor)   

JURUPA GATEWAY LLC

(Lessee)   

J.A. COSMETICS US, INC.

Address of Premises:   

5685 Jurupa Street

  

Ontario, California

Paragraph 50

 

A. RENT ADJUSTMENTS:

The monthly rent for each month of the adjustment period(s) specified below shall be increased using the method(s) indicated below:

Fixed Rental Adjustment(s) (FRA)

The monthly Base Rent shall be increased equal to the following amounts on the dates during the periods set forth below:

 

PERIOD: On (Fill in FRA Adjustment Date(s)):   The  New   monthly Base Rent shall be:  

3/1/16 — 5/31/16

  $ 0.00   

6/1/16 — 2/28/17

  $ 88,257.22   

3/1/17 — 2/28/18

  $ 90,904.94   

3/1/18 — 2/28/19

  $ 93,632.08   

3/1/19 — 2/29/20

  $ 96,441.05   

3/1/20 — 2/28/21

  $ 99,334.28   

3/1/21 — 5/31/21

  $ 102,314.31   

 

B. NOTICE :

Unless specified otherwise herein, notice of any such adjustments, other than Fixed Rental Adjustments, shall be made as specified in paragraph 23 of the Lease.

 

C. BROKER’S FEE :

The Brokers shall be paid a Brokerage Fee for each adjustment specified above in accordance with paragraph 15 of the Lease or if applicable, paragraph 9 of the Sublease.

NOTICE: These forms are often modified to meet changing requirements of law and industry needs. Always write or call to make sure you are utilizing the most current form: AIR Commercial Real Estate Association, 500 N Brand Blvd, Suite 900, Glendale, CA 91203.

Telephone No. (213) 687-8777. Fax No.: (213) 687-8616.

 

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OPTION(S) TO EXTEND

STANDARD LEASE ADDENDUM

 

Dated    December 9, 2015
By and Between (Lessor)   

JURUPA GATEWAY LLC

By and Between (Lessee)   

J.A. COSMETICS US, INC.

Address of Premises:   

5685 Jurupa Street

  

Ontario, California

Paragraph 51

 

A. OPTION(S) TO EXTEND:

Lessor hereby grants to Lessee the option to extend the term of this Lease for two (2)  additional sixty (60) month period(s) commencing when the prior term expires upon each and all of the following terms and conditions:

(i) In order to exercise an option to extend, Lessee must give written notice of such election to Lessor and Lessor must receive the same at least 9 but not more than 12 months prior to the date that the option period would commence, time being of the essence. If proper notification of the exercise of an option is not given and/or received, such option shall automatically expire. Options (if there are more than one) may only be exercised consecutively.

(ii) The provisions of paragraph 39, including those relating to Lessee’s Default set forth in paragraph 39.4 of this Lease, are conditions of this Option.

(iii) Except for the provisions of this Lease granting an option or options to extend the term, all of the terms and conditions of this Lease except where specifically modified by this option shall apply.

(iv) Intentionally deleted.

(v) The monthly rent for each month of the option period shall be calculated as follows, using the method(s) indicated below:

Market Rental Value Adjustment(s) (MRV)

a. On (Fill in MRV Adjustment Date(s)) the first day of each extension period the Base Rent shall be adjusted to the “Market Rental Value” of the property as follows:

1) Four months prior to each Market Rental Value Adjustment Date described above, the Parties shall attempt to agree upon what the new MRV will be on the adjustment date. If agreement cannot be reached, within thirty days, then:

(a) Lessor and Lessee shall immediately appoint a mutually acceptable appraiser or broker to establish the new MRV within the next 30 days. Any associated costs will be split equally between the Parties, or

(b) Both Lessor and Lessee shall each immediately make a reasonable determination of the MRV and submit such determination, in writing, to arbitration in accordance with the following provisions:

(i) Within 15 days thereafter, Lessor and Lessee shall each select an ¨ appraiser or x broker ( “Consultant” - check one) of their choice to act as an arbitrator. The two arbitrators so appointed shall immediately select a third mutually acceptable Consultant to act as a third arbitrator.

(ii) The 3 arbitrators shall within 30 days of the appointment of the third arbitrator reach a decision as to what the actual MRV for the Premises is, and whether Lessor’s or Lessee’s submitted MRV is the closest thereto. The decision of a majority of the arbitrators shall be binding on the Parties. The submitted MRV which is determined to be the closest to the actual MRV shall thereafter be used by the Parties.

(iii) If either of the Parties fails to appoint an arbitrator within the specified 15 days, the arbitrator timely appointed by one of them shall reach a decision on his or her own, and said decision shall be binding on the Parties.

(iv) The entire cost of such arbitration shall be paid by the party whose submitted MRV is not selected, ie. the one that is NOT the closest to the actual MRV.

2) When determining MRV, the Lessor, Lessee and Consultants shall consider the terms of comparable market transactions which shall include, but no limited to, rent, rental adjustments, abated rent, lease term and financial condition of tenants.

 

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3) Notwithstanding the foregoing, the new Base Rent shall not be less than the rent payable for the month immediately preceding the rent adjustment.

b. Upon the establishment of each New Market Rental Value:

1) the new MRV will become the new “Base Rent” for the purpose of calculating any further Adjustments, and

2) the first month of each Market Rental Value term shall become the new “Base Month” for the purpose of calculating any further Adjustments.

 

B. NOTICE:

Unless specified otherwise herein, notice of any rental adjustments, other than Fixed Rental Adjustments, shall be made as specified in paragraph 23 of the Lease.

 

C. BROKER’S FEE:

The Brokers shall be paid a Brokerage Fee for each adjustment specified above in accordance with paragraph 15 of the Lease or if applicable, paragraph 9 of the Sublease.

NOTICE: These forms are often modified to meet changing requirements of law and industry needs. Always write or call to make sure you are utilizing the most current form: AIR Commercial Real Estate Association, 500 N Brand Blvd, Suite 900, Glendale, CA 91203.

Telephone No. (213) 687-8777. Fax No.: (213) 687-8616.

 

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ADDENDUM

 

Date:    December 9, 2015
By and Between   

(Lessor): Jurupa Gateway LLC

(Lessee): J.A. Cosmetics US, Inc.

Address of Premises:    5685 Jurupa Street, Ontario, California

52.    Early Occupancy

   Subject to Paragraphs 3.2 and 3.4, Lessee shall be permitted to enter the Premises at any time after mutual execution of this Lease (the “ Early Possession Date ”) and continuing until the Commencement Date, with no obligation to pay Rent, for the purpose of installing furniture, fixtures, racking and equipment, and otherwise preparing the Premises for Lessee’s occupancy as long as (a) Lessee’s activities do not materially interfere with any work being performed by Lessor and/or its contractors at the Building and are conducted in compliance with Applicable Requirements and (b) Lessee does not commence business operations at the Premises prior to the Commencement Date. Lessor shall be responsible for all utility charges applicable to the Premises during any such period of early occupancy. For the avoidance of doubt, Lessee’s activities to stock the Premises with finished goods in preparation for business operations shall not be deemed commencement of business operations during period of early occupancy.

53.    Lessee Allowance

   (a) Lessor shall provide a tenant improvement allowance to Lessee in the amount of $638,088 (the “ Improvement Allowance ”) to be used for general purpose tenant improvements (excluding tenant improvements that are specific and/or unique to Lessee or its business operations) to the Premises to be performed by (and that are reasonably acceptable to) Lessor, including, without limitation, construction of an employee break room, employee restrooms, a separate trucker entrance with a vestibule and restroom, and installation of additional dock levelers, upgraded lighting, air circulation fans, electrical wiring for fork lift chargers and distributed electrical service from the main panel (the “ Improvements ”).
   (b) As soon as reasonably possible after execution of this Lease, Lessor and Lessee shall meet to discuss the nature and extent of all improvements that Lessee desires in the Premises. On or before the date that is three (3) business days after such meeting, Lessor shall deliver to Lessee a space plan depicting the Improvements (the “ Space Plans ”). Lessee shall notify Lessor whether it approves of the submitted Space Plans within three (3) business days after Lessor’s submission thereof. If Lessee disapproves of such Space Plans, then Lessee shall notify Lessor thereof specifying in reasonable detail the reasons for such disapproval, in which case Lessor shall, within three (3) business days after such notice, revise such Space Plans in accordance with Lessee’s objections, to the extent such modifications are acceptable to Lessor, and submit the same to Lessee for its review and approval. Lessee shall notify Lessor in writing whether it approves of the resubmitted Space Plans within one (1) business day after its receipt thereof. This process shall be repeated until the Space Plans have been finally approved by Lessee.

 

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   (c) Lessor shall obtain all required approvals and permits for the Improvements, and thereafter Lessor shall cause its contractor to construct the Improvements substantially in accordance with the final, approved Space Plans, all Applicable Requirements, and in a good and workmanlike manner. Lessor’s contract with its contractor for the Improvements and any material modifications to such contract shall be subject to Lessee’s reasonable approval.
   (d) Within three (3) business days after the Improvements are substantially complete, Lessor and Lessee shall conduct a walk-through of the Premises and identify any necessary touch-up work, repairs and minor completion items that are necessary for final completion of the Improvements (“punch-list”). Lessor shall cause its contractor to complete all punch-list items promptly after such walk-through.
   (e) Lessee must pre-approve any construction costs exceeding the Improvement Allowance (“ Excess Costs ”). Lessee shall pay any pre-approved Excess Costs to Lessor within ten (10) days after Lessor’s written request (which shall include reasonable evidence of the Excess Costs) and such Excess Costs shall be deemed additional Rent under the Lease.
   (f) Subject to Paragraph 53(h) below, it is understood that some or all of the Improvements may be constructed during Lessee’s occupancy of the Premises and after the Commencement Date. Lessor and Lessee shall agree upon a timeline for construction, and a methodology of construction in an effort to minimize disruption to Lessee’s business operations at the Premises.
   (g) Except as otherwise provided herein, in no event shall the commencement or completion of the Improvements affect the Commencement Date. All Improvements shall be subject to the terms and conditions of the Lease. Lessor shall pay for the costs of the Improvements, together with all engineer, architect and consultant fees and expenses (including plan preparation costs) and all permit and approval fees and expenses incurred by Lessor in connection with the Improvements (collectively, the “ Improvement Costs ”), in an amount up to, but not exceeding the Improvement Allowance.
   (h) Notwithstanding anything to the contrary contained herein, Lessor shall Substantially Complete the Improvements on or before the date that is eight-five (85) days after Lessor and Lessee have both executed this Lease and approved the Space Plans (the “ Substantial Completion Date ”); provided, however, if the performance of Lessor’s Work is delayed due to any Lessee Delays (as defined below) or other force majeure events beyond the reasonable control of Lessor, the Substantial Completion Date shall be extended by the period(s) of such delays. If Lessor fails to Substantially Complete the Improvements on or before the Substantial Completion Date (as such date may be extended due to delays described in the preceding sentence), the Base Rent abatement provided for the period from the Commencement Date through May 31, 2016 shall be extended by one (1) day for each day after the Substantial Completion Date (as such date may be extended due to delays described in the preceding sentence) until the Improvements are Substantially Complete. For the purposes of this Lease, “ Substantial Completion ” shall mean completion of the Improvements in accordance with the

 

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   Space Plans, subject to only minor punch list items that do not materially interfere with Lessee’s use of the Premises. For purposes of this Lease, “ Lessee Delays ” shall mean any interruptions or delays in the progress of the installation of the Improvements which is the result of any act or omission of Lessee or any of its employees, agents or contractors, including any modifications to the Space Plans requested by Lessee or any failure to approve the contract for the Improvements or any modifications thereto within three (3) business days after Lessor’s request. Lessee Delays shall also include the failure of Lessee to execute this Lease on or before December 4, 2015, and the Substantial Completion Date shall be automatically extended by the number of days after December 4, 2015 on which this Lease is executed by Lessee.
   (i) Notwithstanding anything in this Lease to the contrary, if Lessee commences business operations at the Premises prior to the Commencement Date and fails to cease such business operations within three (3) business days after written notice from Lessor, then Lessee shall not be entitled to any additional abatement of Base Rent pursuant to Paragraph 53(h) if Lessor fails to complete the Improvements by the Substantial Completion Date, and Lessor’s sole obligation with respect to the timing of completion of the Improvements shall be to complete the Improvements as soon as reasonably possible after execution of this Lease.

54.    Operating Expenses

   Notwithstanding the terms of Paragraph 7.1(b) of the Lease, Lessor intends to procure and maintain the service contracts described in Paragraph 7.1(b) of the Lease, and Lessor may perform other Lessee obligations under Paragraph 7.1(a) of the Lease as further outlined in Paragraph 7.1(c). Lessee shall pay Lessor for the costs incurred by Lessor in connection with Lessor’s performance of any of Lessee’s obligations pursuant to Paragraph 7.1(c) of the Lease, together with all other Common Area Operating Expenses required to be paid by Lessee pursuant to the terms of the Lease (the “ Operating Expenses ”). Lessor shall list and estimate the Operating Expenses required to be paid by Lessee for the Premises for each calendar year during the Term of this Lease and shall deliver such estimate (the “ Operating Expense Estimate ”) to Lessee on or before November 1st of each year (the “ Estimate Date ”) for the following calendar year. The current Operating Expense Estimate (including costs for the service contracts) for 2016 for the Premises is $22,545.78 per month. Lessee shall pay to Lessor, on the first day of each month during the Term of this Lease, commencing on the Commencement Date, the Operating Expenses set forth in the Operating Expense Estimate.

55.    Permitted Assignments

   Notwithstanding anything to the contrary in Paragraph 12 of the Lease, Lessor’s consent shall not be required for (a) an assignment or sublease of this Lease to any entity (i) resulting from a merger or consolidation with Lessee, (ii) acquiring all or substantially all of the assets, stock or membership interests of Lessee, or (iii) controlling Lessee, controlled by Lessee or under common control with Lessee (collectively, an “ Affiliate ”); or (b) a merger, a consolidation or the acquisition of Lessee by any entity. Lessee shall provide prior written notice to Lessor of any such assignment or sublease of this Lease and, if applicable, the assumption by the assignee or subtenant of all of Lessee’s obligations hereunder, together with copies of all documents governing such assignment and assumption. In no event shall the original

 

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   Lessee (J.A. Cosmetics US, Inc.) be released from its obligations under this Lease in connection with an assignment or subletting of the Lease made in accordance with this Paragraph 55.

56.    Consequential Damages

   Notwithstanding anything in this Lease to the contrary, Lessor hereby waives its right to recover consequential damages from Lessee.

57.    Declaration of California Assistance

   Lessee represents that this transaction would not have been financially viable without the incentives provided by California Competes.

58.    Controlling Provisions

   In the event of any conflict or inconsistency between the terms of this Addendum and the Lease to which it is attached, the terms of this Addendum shall control, it being the express intent of the parties that the terms of the Addendum shall be primary and controlling. Unless otherwise defined herein, capitalized terms used in this Addendum have the meanings ascribed thereto in the Lease.

 

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Exhibit A

Site Plan / Premises

 

LOGO

 

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ENERGY DISCLOSURE LEASE ADDENDUM

(For California Only)

 

Date:   

December 9, 2015

By and Between (Lessor)   

JURUPA GATEWAY LLC

(Lessee)   

J.A. COSMETICS US, INC.

Address of Premises:   

5685 Jurupa Street

  

Ontario, California

PREFACE:

AB 1103, which first went into effect on January 1, 2014, requires the disclosure of energy consumption information for leases involving certain types and sizes of non-residential buildings. These new rules apply only where the lease in question is for the entire building. Buildings containing less than 5000 square feet are exempt as are buildings being utilized for certain uses. In this regard it is the use specified in the certificate of occupancy or the equivalent of the current or previous tenant/occupant that is important. While the use classifications are defined under the statewide California Building Code, the local municipality selects the use classification for a particular building when it issues the occupancy permit. Consequently, local interpretations and applications of the use classifications can vary. In the case of industrial buildings utilized for manufacturing, assembly or fabrication activities (Group F), the exemption will clearly apply. However, warehouses, depots and distribution centers are likely to be classified as Group S and, therefore, subject to the regulations. The occupancy permit documentation is the best means of determining whether AB 1103 applies.

Besides F and S there are a number of other use classifications – some of which are exempt and some are not. We recommend that you familiarize yourself with the types of businesses that fall under each use classification since AB 1103 encompasses retail, office, institutional, hospitality and other commercial uses as well. For your reference, the following use classifications that are NOT exempt:

 

  i. Assembly (A) (for example: restaurants, theaters, and lecture halls)

 

  ii. Business (B)

 

  iii. Education (E)

 

  iv. Institutional - Assisted Living (I-1, R-2)

 

  v. Institutional - Nonambulatory (I-2)

 

  vi. Mercantile (M) (ie. retail)

 

  vii. Residential - Transient (R-1) (for example, a hotel)

 

  viii. Storage (S)

 

  ix. Utility - Parking Garage (U)

Please see the International Code Council website that lists the various use classifications with links to the types of businesses that are included in each classification. http://publicecodes.cyberregs.com/st/ca/st/b200v10/st_ca_st_b200v10_3_sec001.htm

 

  A. ACKNOWLEGEMENTS:

To the extent waivable, Lessee waives any obligation of Lessor to deliver to Lessee the energy consumption and benchmarking disclosure documents for the Premises pursuant to Public Resources Code Section 25402.10, and Lessee expressly waives any and all claims against Lessor, its agents and representatives relating to such disclosures or otherwise in connection with the applicable requirements of Public Resources Code Section 25402.10.

 

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  B. UTILITIES:

If any of the services or utilities listed in paragraph 11 of the Lease are separately billed or metered to Lessee, then, to the extent required in order for Lessor to comply with Public Resources Code Section 25402.10, Lessee hereby authorizes the release by such utility service providers to Lessor of any and all energy usage data and other information related to the disclosure requirements under Public Resources Code Section 25402.10 and shall promptly execute any authorizations, consents or other documentation required by any such utility service provider for the release to Lessor of such information. In addition, Lessee shall promptly deliver to Lessor copies of any utility bills requested by Lessor to the extent required in order for Lessor to comply with Public Resources Code Section 25402.10.

 

Tenant Name:   J.A. COSMETICS US, INC.
By:  

/s/ Daniel L. Webb

NOTICE: These forms are often modified to meet changing requirements of law and industry needs. Always write or call to make sure you are utilizing the most current form: AIR Commercial Real Estate Association, 500 N Brand Blvd, Suite 900, Glendale, CA 91203.

Telephone No. (213) 687-8777. Fax No.: (213) 687-8616.

© Copyright 2014 By AIR Commercial Real Estate Association.

All rights reserved. No part of these works may be reproduced in any form without permission in writing.

 

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Exhibit 10.6(a)

 

 

 

CREDIT AGREEMENT

Dated as of January 31, 2014

among

J.A. COSMETICS HOLDINGS, INC. , as Initial Borrower,

and each other Person that becomes a Borrower hereunder by execution of a Joinder Agreement,

as the Borrowers,

THE OTHER PERSONS PARTY HERETO THAT ARE DESIGNATED AS LOAN

PARTIES ,

as Guarantors,

CERTAIN FINANCIAL INSTITUTIONS,

a s Lenders,

BANK OF MONTREAL,

as Administrative Agent, Swing Line Lender and an L/C Issuer,

ALLY COMMERCIAL FINANCE LLC, as Syndication Agent,

and

BANK OF MONTREAL, ACTING UNDER ITS TRADE NAME

BMO CAPITAL MARKETS,

as Arranger and Bookrunner

 

 

 


TABLE OF CONTENTS

 

ARTICLE I DEFINITIONS AND ACCOUNTING TERMS

     1   

1.01.

   Defined Terms      1   

1.02.

   Other Interpretive Provisions      40   

1.03.

   Accounting Terms      41   

1.04.

   Uniform Commercial Code      42   

1.05.

   Reserved      42   

1.06.

   Foreign Currency      43   

1.07.

   Times of Day      43   

ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS

     43   

2.01.

   Loan Commitments      43   

2.02.

   Borrowings, Conversions and Continuations of Loans      43   

2.03.

   Letters of Credit      45   

2.04.

   Swing Line Loans      52   

2.05.

   Repayment of Loans      55   

2.06.

   Prepayments      56   

2.07.

   Termination or Reduction of Commitments      60   

2.08.

   Interest      60   

2.09.

   Fees      61   

2.10.

   Computation of Interest and Fees      62   

2.11.

   Evidence of Debt      62   

2.12.

   Payments Generally; Administrative Agent’s Clawback      63   

2.13.

   Sharing of Payments by Lenders      64   

2.14.

   Settlement Among Lenders      65   

2.15.

   Nature and Extent of Each Borrower’s Liability      66   

2.16.

   Cash Collateral      67   

2.17.

   Defaulting Lenders      68   

2.18.

   Increase in Revolving Credit Commitments or Term Loan Facility      70   

2.19.

   Prepayments Below Par      74   

ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY

     77   

3.01.

   Taxes      77   

3.02.

   Illegality      81   

3.03.

   Inability to Determine Rates      81   

3.04.

   Increased Costs; Reserves on Eurodollar Rate Loans      82   

3.05.

   Compensation for Losses      84   

3.06.

   Reimbursement      84   

3.07.

   Mitigation Obligations      84   

3.08.

   Survival      85   

ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

     85   

4.01.

   Conditions of Initial Credit Extension      85   

4.02.

   Conditions to all Credit Extensions      88   

 

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ARTICLE V REPRESENTATIONS AND WARRANTIES

     89   

5.01.

   Existence, Qualification and Power      89   

5.02.

   Authorization; No Contravention; Consents      89   

5.03.

   Binding Effect      90   

5.04.

   Financial Statements; No Material Adverse Effect      90   

5.05.

   Litigation      90   

5.06.

   No Default      90   

5.07.

   Ownership of Property; Liens      90   

5.08.

   Environmental Compliance      91   

5.09.

   Insurance and Casualty      92   

5.10.

   Taxes      92   

5.11.

   ERISA Compliance      92   

5.12.

   Subsidiaries; Equity Interests; Capitalization      93   

5.13.

   Margin Regulations; Investment Company Act      93   

5.14.

   Disclosure      93   

5.15.

   Compliance with Laws; Anti-Terrorism Laws and Foreign Asset Control Regulations      94   

5.16.

   Labor Matters      94   

5.17.

   Brokers      95   

5.18.

   Intellectual Property      95   

5.19.

   Senior Indebtedness      95   

ARTICLE VI AFFIRMATIVE COVENANTS

     95   

6.01.

   Financial Statements      95   

6.02.

   Other Information      97   

6.03.

   Notices      98   

6.04.

   Payment of Taxes and Assessments      99   

6.05.

   Preservation of Existence, Etc.      99   

6.06.

   Maintenance of Properties      99   

6.07.

   Maintenance of Insurance; Business Interruption Proceeds      99   

6.08.

   Compliance with Laws Generally; Environmental Laws      100   

6.09.

   Books and Records      100   

6.10.

   Inspection Rights; Meetings with Administrative Agent      100   

6.11.

   Compliance with ERISA      101   

6.12.

   Further Assurances      101   

6.13.

   Use of Proceeds      102   

6.14.

   Control Agreements      103   

6.15.

   Collateral Access Agreements      103   

6.16.

   Joinder Agreement      104   

6.17.

   [Reserved]      104   

6.18.

   [Reserved]      104   

6.19.

   Amendments to Certain Agreements      104   

 

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ARTICLE VII NEGATIVE COVENANTS

     104   

7.01.

   Indebtedness      104   

7.02.

   Liens      108   

7.03.

   Investments      111   

7.04.

   Mergers, Dissolutions, Etc.      114   

7.05.

   Dispositions      115   

7.06.

   Restricted Payments      116   

7.07.

   Change in Nature of Business      119   

7.08.

   Transactions with Affiliates      119   

7.09.

   Inconsistent Agreements      120   

7.10.

   Reserved      120   

7.11.

   Prepayment of Indebtedness; Amendment to Subordinated Indebtedness   
   Documents; Amendment to Organization Documents; Amendment to   
   Management Agreement; Payment of Earnouts and Other Deferred   
   Purchase Price Obligations      120   

7.12.

   Financial Covenants      122   

7.13.

   Anti-Terrorism Laws and Foreign Asset Control Regulations      123   

7.14.

   Fiscal Year      123   

7.15.

   Holdings Covenant      123   

ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES

     124   

8.01.

   Events of Default      124   

8.02.

   Remedies Upon Event of Default      126   

8.03.

   Application of Funds      127   

8.04.

   Equity Cure Right      128   

ARTICLE IX ADMINISTRATIVE AGENT

     129   

9.01.

   Appointment and Authority; Limitations on Lenders      129   

9.02.

   Rights as a Lender      130   

9.03.

   Exculpatory Provisions      130   

9.04.

   Reliance by Administrative Agent      131   

9.05.

   Delegation of Duties      131   

9.06.

   Resignation of Administrative Agent      132   

9.07.

   Non-Reliance on Administrative Agent and Other Lenders      133   

9.08.

   No Other Duties, Etc.      133   

9.09.

   Administrative Agent May File Proofs of Claim; Credit Bidding      133   

9.10.

   Collateral Matters      134   

9.11.

   Other Collateral Matters      135   

9.12.

   Right to Perform, Preserve and Protect      135   

9.13.

   Credit Product Providers and Credit Product Arrangements      135   

9.14.

   Designation of Additional Agents      136   

9.15.

   Authorization to Enter into Intercreditor Agreement      136   

 

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ARTICLE X MISCELLANEOUS

     136   

10.01.

   Amendments, Etc.      136   

10.02.

   Notices; Effectiveness; Electronic Communication      140   

10.03.

   No Waiver; Cumulative Remedies      143   

10.04.

   Expenses; Indemnity; Damage Waiver      144   

10.05.

   Marshalling; Payments Set Aside      147   

10.06.

   Successors and Assigns      147   

10.07.

   Treatment of Certain Information; Confidentiality      156   

10.08.

   Right of Setoff      157   

10.09.

   Interest Rate Limitation      157   

10.10.

   Counterparts; Integration; Effectiveness      158   

10.11.

   Survival      158   

10.12.

   Severability      158   

10.13.

   Replacement of Lenders      159   

10.14.

   Governing Law; Jurisdiction; Etc.      160   

10.15.

   Waiver of Jury Trial      161   

10.16.

   USA PATRIOT Act Notice      161   

10.17.

   No Advisory or Fiduciary Responsibility      161   

10.18.

   Attachments      162   

ARTICLE XI CONTINUING GUARANTEE

     162   

11.01.

   Guarantee      162   

11.02.

   Rights of Lenders      162   

11.03.

   Certain Waivers      163   

11.04.

   Obligations Independent      164   

11.05.

   Subrogation      164   

11.06.

   Termination; Reinstatement      165   

11.07.

   Subordination      165   

11.08.

   Condition of Borrowers      165   

11.09.

   Limitation of Liability      165   

 

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SCHEDULES
   2.01    Commitments and Applicable Percentages
   5.05    Litigation
   5.07(b)(1)    Owned Real Estate
   5.07(b)(2)    Leased Real Estate
   5.09    Insurance
   5.11(d)    Pension Plans
   5.11(e)    Foreign Plans
   5.12    Subsidiaries; Capitalization; Other Equity Investments
   5.16    Labor Matters
   7.01    Existing Indebtedness
   7.02    Existing Liens
   7.03    Existing Investments
   7.08    Affiliate Transactions
   10.02    Administrative Agent’s Office (and Account)
EXHIBITS
           Form of
   A    Committed Loan Notice
   B    Swing Line Loan Notice
   C-1    Revolving Loan Note
   C-2    Term Loan Note
   D    Compliance Certificate
   E    Excess Cash Flow Certificate
   F    Assignment and Assumption
   G    Closing Checklist
   H    Form of Joinder to Credit Agreement

 

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CREDIT AGREEMENT

This CREDIT AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “ Agreement ”) is entered into as of January 31, 2014, among J.A. Cosmetics Holdings, Inc., a Delaware corporation (“ Holdings ”), as the initial borrower (the “ Initial Borrower ”; each of the Initial Borrower, and each Domestic Subsidiary of Initial Borrower who hereafter becomes a “Borrower” hereunder pursuant to a Joinder Agreement, may be referred to individually, as a “ Borrower ” and collectively herein, as “ Borrowers ”), the other Persons party hereto that are designated as a “Loan Party”, EACH LENDER FROM TIME TO TIME PARTY HERETO (collectively, the “ Lenders ” and individually, a “ Lender ”), and BANK OF MONTREAL , a Canadian chartered bank acting through its Chicago branch as Administrative Agent, Swing Line Lender, and an L/C Issuer.

PRELIMINARY STATEMENTS

A. Borrowers have requested that Lenders, the Swing Line Lender and the L/C Issuer provide a credit facility to Borrowers to finance their mutual and collective business enterprise.

B. Lenders are willing to provide the credit facility on the terms and conditions set forth in this Agreement.

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

1.01. Defined Terms . As used in this Agreement, the following terms shall have the meanings set forth below:

Acquired EBITDA ” means, with respect to any Acquired Entity or Business for any period, the amount for such period of Adjusted Consolidated EBITDA of such Acquired Entity or Business, as determined on a consolidated basis for such Acquired Entity or Business.

Acquired Entity or Business ” has the meaning specified in the definition of the term “Adjusted Consolidated EBITDA” in the Compliance Certificate.

Acquisition ” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in the acquisition of (a) a majority equity or other ownership interest in another Person (including the purchase of an option, warrant or convertible or similar type security to acquire such a majority interest at the time it becomes exercisable by the holder thereof), or (b) assets of another Person which constitute all or substantially all of the assets of such Person or of a line or lines of business or division conducted by such Person.

Additional Lender ” has the meaning specified in Section 2.18(c) .

 

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Adjusted Consolidated EBITDA ” has the meaning specified in the Compliance Certificate.

Administrative Agent ” means BMO, in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

Administrative Agent’s Office ” means Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 , or such other address or account as Administrative Agent may from time to time notify Borrower Agent and the Lenders.

Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by Administrative Agent.

Affiliate ” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

Affiliated Lender ” has the meaning specified in Section 10.06(a) .

Agent Parties ” has the meaning specified in Section 10.02(c) .

Aggregate Revolving Credit Commitments ” means, as at any date of determination thereof, the sum of all Revolving Credit Commitments of all Lenders at such date.

Agreement ” has the meaning specified in the introductory paragraph hereto.

All-In Yield ” means, as to any Indebtedness, the yield thereon, whether in the form of interest rate, margin, original issue discount (“ OID ”), up-front fees or a Eurodollar Base Rate or Base Rate floor greater than the applicable Existing Floor, in each case, incurred or payable by the Borrowers generally to the lenders of such Indebtedness; provided that OID and up-front fees (which shall be deemed to constitute like amounts of OID) shall be equated to interest rate adjustments, assuming a 4-year life to maturity (or, if less, the stated life to maturity of the applicable Indebtedness at the time of its incurrence); and provided , further , that “All-In Yield” shall not include customary arrangement, structuring, underwriting fees or similar fees paid to BMO, Arranger or their respective Affiliates or one or more arrangers, underwriters or their respective Affiliates of such Indebtedness and not shared by all lenders providing such Indebtedness.

Applicable Indebtedness ” has the meaning specified in the definition of Weighted Average Life to Maturity.

Applicable Margin ” means (a) in the case of a Base Rate Loan, 4.00% per annum, and (b) in the case of a Eurodollar Rate Loan, 5.00% per annum.

Applicable Percentage ” means (a) in respect of the Revolving Credit Facility, with respect to any Revolving Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Credit Facility, represented by the amount of the Revolving Credit Commitment of such Revolving Lender at such time; provided that if the Aggregate

 

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Revolving Credit Commitments have been terminated at such time, then the Applicable Percentage of each Revolving Lender shall be the Applicable Percentage of such Revolving Lender immediately prior to such termination and after giving effect to any subsequent assignments, and (b) in respect of the Term Loan Facility, with respect to any Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Term Loan Facility represented by (i) on or prior to the Closing Date, such Term Lender’s Term Loan Commitment at such time and (ii) thereafter, the Outstanding Amount of such Term Lender’s Term Loans at such time. The initial Applicable Percentage of each Lender with respect to each Facility is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

Approved Fund ” means, with respect to any Lender, any Fund that is administered, advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages such Lender.

Arranger ” means BMO, acting under its trade name BMO Capital Markets.

Assignee Group ” means two or more assignees of Loans or Commitments that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

Assignment and Assumption ” means an assignment and assumption agreement entered into by a Lender and an assignee of Loans or Commitments (with the consent of any party whose consent is required by Section 10.06(b)) (or the Sponsor or its Affiliates in the case of an assignment pursuant to Section 10.06(g)) , and accepted by Administrative Agent, in substantially the form of Exhibit F or any other form reasonably approved by Administrative Agent.

Attributable Indebtedness ” means, on any date, (a) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any synthetic lease or other similar financing lease, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.

Audited Financial Statements ” means the audited consolidated balance sheet of the Target and its Subsidiaries for the Fiscal Year ended December 31, 2013, and the related consolidated statements of income or operations and cash flows for such Fiscal Year, including the notes thereto.

Auditor ” has the meaning specified in Section 6.01(a) .

Auto-Extension Letter of Credit ” has the meaning specified in Section 2.03(b)(iii).

 

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Available Amount ” means, on any date of determination, the sum (but not less than zero for any applicable fiscal year) of (without duplication) (a) an amount equal to the portion of Excess Cash Flow (50%, 75% or 100%, as applicable) for each Fiscal Year ending after the Closing Date for which an Excess Cash Flow Certificate has been delivered, commencing with the Fiscal Year ending December 31, 2014 (calculated for the period commencing on the Closing Date and ending on December 31, 2014), and prior to such date of determination that was not required to be applied to prepay the Obligations pursuant to Section 2.06(b)(i) or prepay the Subordinated Indebtedness pursuant to the terms of the Subordinated Loan Agreement (for the avoidance of doubt, any portion of the Excess Cash Flow prepayment not required to be paid pursuant to Section 2.06(b)(vi) shall not increase the amount in this clause (a)); plus (b) the aggregate amount of Net Cash Proceeds of an issuance by Holdings of or capital contribution (including, without limitation, any capital contribution of marketable securities or other Cash Equivalents) in respect of any of its Equity Interests that are not Disqualified Equity Interests or Permitted Cure Securities and which are not used to make Restricted Payments under Section 7.06(i) received by any of the Borrowers during the period from and including the Business Day immediately following the Closing Date through and including such date of determination; minus (c) the aggregate amount of the Available Amount used to pay dividends and distributions pursuant to Section 7.06(h) during the period from and including the Business Day immediately following the Closing Date through and including such date of determination (without taking account of the intended usage of the Available Amount on such date of determination); minus (d) the aggregate amount of the Available Amount used for Permitted Acquisitions during the period from and including the Business Day immediately following the Closing Date through and including such date of determination (without taking account of the intended usage of the Available Amount on such date of determination); minus (e) the aggregate amount of the Available Amount used to make other investments pursuant to Section 7.03(z) during the period from and including the Business Day immediately following the Closing Date through and including such date of determination (without taking account of the intended usage of the Available Amount on such date of determination); minus (f) the aggregate amount of the Available Amount used to make cash loans and advances to officers, directors and employees pursuant to Section 7.03(x) during the period from and including the Business Day immediately following the Closing Date through and including such date of determination (without taking account of the intended usage of the Available Amount on such date of determination); minus (g) the aggregate amount of the Available Amount used to make payments of Subordinated Indebtedness pursuant to Section 7.11(a)(ii) during the period from and including the Business Day immediately following the Closing Date through and including such date of determination (without taking account of the intended usage of the Available Amount on such date of determination).

Bankruptcy Code ” means Title 11 of the United States Code, as in effect from time to time.

Base Rate ” means, for any day, a fluctuating rate per annum equal to the highest of (a) the rate of interest announced by BMO from time to time as its prime rate, or its equivalent for U.S. Dollar loans to borrowers located in the United States, for such day (whether or not the lowest rate offered by BMO and with any change in such rate announced by BMO taking effect at the opening of business on the day specified in the public announcement of such change); (b) the Federal Funds Rate for such day, plus 0.50%; and (c) the Eurodollar Rate, calculated for such day for an Interest Period of one month (but for the avoidance of doubt, not less than 1.25%) plus 1.00%.

 

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Base Rate Loan ” means a Loan (or segment of a Loan) that bears interest based on the Base Rate.

Base Rate Revolving Loan ” means a Revolving Loan that is a Base Rate Loan.

BMO ” means Bank of Montreal.

Borrower Agent ” has the meaning specified in Section 2.15(d) .

Borrower ” and “ Borrowers ” has the meaning specified in the introductory paragraph hereto.

Borrower Materials ” has the meaning specified in Section 10.02(c) .

Borrowing ” means any of (a) a Revolving Borrowing, (b) a Term Borrowing or (c) a Swing Line Borrowing, as the context may require.

Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where Administrative Agent’s Office is located and, if such day relates to any interest rate settings as to a Eurodollar Rate Loan, any fundings, disbursements, settlements and payments in respect of any such Eurodollar Rate Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such Eurodollar Rate Loan, means any such day that is also a London Banking Day.

Capital Leases ” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases; provided, that, for purposes of this Agreement, the determination of whether a lease is required to be accounted for as a Capital Lease on the balance sheet of such Person shall be made by reference to GAAP as in effect on the Closing Date.

Cash Collateralize ” means to pledge and deposit with or deliver to Administrative Agent, (a) for the benefit of one or more of the L/C Issuer or the Revolving Lenders, as collateral for L/C Obligations or obligations of the Revolving Lenders to fund participations in respect of L/C Obligations, (i) cash or Deposit Account balances in an amount equal to 104% of the L/C Obligations (pursuant to documentation reasonably satisfactory to Administrative Agent and the L/C Issuer), (ii) a standby letter of credit, in form and substance reasonably satisfactory to Administrative Agent and the L/C Issuer, from a commercial bank acceptable to Administrative Agent and the L/C Issuer, in an amount equal to 104% of the L/C Obligations, or (iii) such other credit support or other arrangements with respect thereto reasonably satisfactory to Administrative Agent and the L/C Issuer in their sole discretion shall have been made or (b) for the benefit of the Swing Line Lender, as collateral for Swing Line Loans that have not been refunded by the Revolving Lenders, cash or Deposit Account balances in an amount equal to the principal amount of such Swing Line Loans or, if Administrative Agent shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to Administrative Agent. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral.

 

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Cash Equivalents ” means any of the following types of property, to the extent owned by Holdings or any of its Subsidiaries:

(a) cash, denominated in Dollars or, with respect to a Borrower or any of its Subsidiaries, any other lawful currency and investments of comparable tenor and credit quality to those described in the other clauses in this definition customarily utilized in countries in which Holdings or any of its Subsidiaries operate for cash management purposes;

(b) readily marketable direct obligations of the government of the United States or any agency or instrumentality thereof, or obligations the timely payment of principal and interest on which are fully and unconditionally guaranteed by the government of the United States or any state or municipality thereof, in each case so long as such obligation has an investment grade rating by S&P and Moody’s;

(c) commercial paper maturing no more than 24 months from the date of creation thereof and rated at least P-1 (or the then equivalent grade) by Moody’s and A-1 (or the then equivalent grade) by S&P, or carrying an equivalent rating by a nationally recognized rating agency if at any time neither Moody’s and S&P shall be rating such obligations;

(d) insured certificates of deposit or bankers’ acceptances of, or time deposits with any commercial bank that (i) is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause (c) above, (iii) is organized under the laws of the United States or of any state thereof and (iv) has combined capital and surplus of at least $250,000,000;

(e) readily marketable general obligations of any corporation organized under the laws of any state of the United States, payable in the United States, expressed to mature not later than 24 months following the date of issuance thereof and rated A or better by S&P or A2 or better by Moody’s;

(f) readily marketable shares of investment companies or money market funds that, in each case, invest solely in the foregoing Investments described in clauses (a) through (e) above; and

(g) in the case of a Foreign Subsidiary, Investments of a kind or type similar to Cash Equivalents described above (replacing United States or any state, agency, instrumentality or municipality thereof with the corresponding Governmental Authorities of any foreign jurisdiction and using comparable ratings, if any, customary in the relevant jurisdiction) in any country other than the United States where such Foreign Subsidiary maintains a business location.

Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any Law, (b) any change in any Law or in the administration, interpretation, implementation or application thereof or (c) the making or issuance of any request, rule, guideline, interpretation, or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all

 

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requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued except to the extent required to be complied with on or prior to the date hereof.

Change of Control ” means an event or series of events by which:

(a) at any time prior to a Qualified IPO, the Sponsor shall cease to own, in the aggregate, directly or indirectly, beneficially and of record, in excess of 50% of the aggregate issued and outstanding Voting Equity Interests of Holdings; or

(b) at any time upon or after the consummation of a Qualified IPO, any “person” or “group” (within the meaning of Rules 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) other than Sponsor becomes the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under such Act), directly or indirectly, of Voting Equity Interests representing (x) more than 35% of the Voting Equity Interests of Holdings and (y) a greater percentage of Voting Equity Interests of Holdings than is then beneficially owned, directly or indirectly, in the aggregate by the Sponsor, unless, in the case of either clause (a) or (b) above, the Sponsor has, at such time, the right or the ability by percentage of Voting Equity Interest of Holdings owned, contract or otherwise to elect or designate for election at least a majority of the board of directors of Holdings; or

(c) Holdings shall fail to own (i) directly 100% of the issued and outstanding Equity Interests of J.A. Cosmetics (or any surviving entity of a merger with J.A. Cosmetics permitted under Section 7.04(b) (x) that has assumed all obligations of J.A. Cosmetics under the Loan Documents in accordance with Section 7.04(b) and (y) 100% of the issued and outstanding Equity Interests of which have been pledged by Holdings to Administrative Agent) or (ii) directly or indirectly, 100% of the issued and outstanding Equity Interests of the other Borrowers, except in this clause (ii) where such failure is the result of a transaction permitted under the Loan Documents provided that, with respect to any such transaction permitted under Section 7.04(b), 100% of the issued and outstanding Equity Interests of any surviving entity of such other Borrower shall have been pledged to Administrative Agent; or

(d) any “change of control” or similar event under the Subordinated Indebtedness Documents or other material Indebtedness.

Closing Date ” means January 31, 2014.

Closing Date Acquisition Documents ” means the Purchase Agreement and all other material documents executed between or among the Loan Parties and the Seller in connection with the Closing Date Acquisition.

Closing Date Acquisition ” means the acquisition provided for in the Purchase Agreement.

Code ” means the U.S. Internal Revenue Code of 1986, as amended from time to time, and any successor statute, and regulations promulgated thereunder.

 

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Collateral ” means, collectively, certain personal property of the Loan Parties or any other Person in which Administrative Agent or any Lender Party is granted a Lien under any Security Instrument as security for all or any portion of the Secured Obligations or any other obligation arising under any Loan Document.

Commitment ” means a Term Loan Commitment or a Revolving Credit Commitment, as the context may require.

Committed Loan Notice ” means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, which, if in writing, shall be substantially in the form of Exhibit A .

Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).

Competitor ” means any operating entity competing with the Borrowers or their Subsidiaries in the Borrowers’ and Subsidiaries’ operating businesses.

Compliance Certificate ” means a certificate substantially in the form of Exhibit D .

Consolidated ” means the consolidation, in accordance with GAAP, of the financial condition or operating results of such Person and its Subsidiaries.

Consolidated Interest Coverage Ratio ” has the meaning specified in the Compliance Certificate.

Consolidated Senior Net Debt ” has the meaning specified in the Compliance Certificate.

Consolidated Senior Net Leverage Ratio ” has the meaning specified in the Compliance Certificate.

Consolidated Total Net Funded Debt ” has the meaning specified in the Compliance Certificate.

Consolidated Total Net Leverage Ratio ” has the meaning specified in the Compliance Certificate.

Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, indenture, mortgage, deed of trust, contract or any other instrument or undertaking (other than a Loan Document) to which such Person is a party or by which it or any of its property is bound or to which any of its property is subject.

Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.

 

-8-


Control Agreement ” means, with respect to any Deposit Account, any Securities Account, Commodity Account, securities entitlement or Commodity Contract, an agreement, in form and substance reasonably satisfactory to Administrative Agent, among Administrative Agent, the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and the Loan Party maintaining such account, effective to grant “control” (as defined under the applicable UCC governing such account) over such account to Administrative Agent.

Controlled Account Bank ” means each bank with whom Deposit Accounts are maintained in which any funds of any of the Loan Parties are maintained and with whom a Control Agreement has been, or is required to be, executed in accordance with the terms hereof.

Controlled Investment Affiliates ” means, as to any Person, any other Person that (a) directly or indirectly, is in Control of, is Controlled by, or is under common Control with, such Person and (b) is organized by such Person primarily for the purpose of making equity or debt investments in one or more companies.

Core Business ” means any material line of business conducted by the Borrowers and their Subsidiaries (after giving effect to the Closing Date Acquisition) as of the Closing Date and any business reasonably related, complementary, supplemental or ancillary thereto.

Credit Extension ” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

Credit Product Arrangements ” means, collectively, (a) Swap Contracts between any Loan Party and any Credit Product Provider and (b) Treasury Management and Other Services between any Loan Party and any Credit Product Provider.

Credit Product Indemnitee ” has the meaning specified in Section 9.13(a).

Credit Product Obligations ” means Indebtedness and other obligations of any Loan Party or any Subsidiary of a Loan Party arising under Credit Product Arrangements and owing to any Credit Product Provider; provided, that Credit Product Obligations shall not include Excluded Swap Obligations.

Credit Product Provider ” means (a) BMO or any of its Affiliates, (b) any other Person who was a Lender, Administrative Agent, or an Affiliate of a Lender or Administrative Agent at the time of entry into the applicable Credit Product Arrangement, so long as such provider with the Borrowers’ consent, delivers written notice to Administrative Agent, in form and substance reasonably satisfactory to Administrative Agent, by the later of the Closing Date or the entering into of the applicable Credit Product Arrangement, (i) describing the Credit Product Arrangement and (ii) agreeing to be bound by Section 9.13 and (c) the counterparty to the Designated FX Swap so long as such counterparty delivers written notice to Administrative Agent, in form and substance reasonably satisfactory to Administrative Agent, by the Closing Date agreeing to be bound by Section 9.13 .

Cure Amount ” has the meaning specified in Section 8.04 .

 

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Cure Right ” has the meaning specified in Section 8.04 .

Debt Fund Affiliate ” means any Affiliate of the Sponsor (other than any natural person, Holdings, the Borrowers or any of their Affiliates): (i) that is primarily engaged in the making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit or debt securities in the ordinary course of business and (ii) with respect to which investment vehicles managed or advised by TPG Capital, L.P. that are not engaged primarily in making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit or debt securities in the ordinary course do not make investment decisions for such entity.

Debtor Relief Laws ” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

Default ” means any event or condition that, with the giving of any notice, the passage of time, or both, would unless cured or waived be an Event of Default.

Default Rate ” means (a) an interest rate equal to the rate of interest otherwise applicable hereunder plus 2% per annum, and (b) with respect to Letter of Credit Fees, the Letter of Credit Fee then in effect plus 2% per annum, in each case to the fullest extent permitted by applicable Laws.

Defaulting Lender ” means, subject to Section 2.17(b) , any Lender that (a) has failed to fund all or any portion of its Loans or otherwise pay to Administrative Agent, the L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder, in any case within two Business Days of the date such Loans were required to be funded or amounts required to be paid hereunder unless due to such Lender’s good faith determination that the conditions set forth in Section 4.02 have not been met, (b) has notified any Borrower, Administrative Agent, the L/C Issuer or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect, unless due to such Lender’s good faith determination that the conditions set forth in Section 4.02 have not been met, (c) has failed, within three Business Days after written request by Administrative Agent or Borrower Agent, to confirm in writing to Administrative Agent and Borrower Agent that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent and Borrower Agent), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets; provided , that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its

 

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assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error.

Designated FX Swap ” means those certain foreign exchange transactions between J.A. Cosmetics and U.S. Bank National Association identified in writing by U.S. Bank National Association to Administrative Agent on January 29, 2013 at 5:16 p.m. (Eastern Time).

Disposed EBITDA ” means, with respect to any Sold Entity or Business for any period, the amount of Adjusted Consolidated EBITDA of such Sold Entity or Business for such period, all as determined on a consolidated basis for such Sold Entity or Business.

Disposition ” or “ Dispose ” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property (including any Equity Interest), or part thereof, by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith; provided that “ Dispose ” shall not be deemed to include any issuance by Holdings of any of its Equity Interests.

Disqualified Equity Interest ” means any Equity Interest that (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control, initial public offering or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control, initial public offering or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments and all outstanding Letters of Credit), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) is convertible into or exchangeable for debt securities or other Indebtedness (unless only occurring at the sole option of the issuer thereof) that would constitute Disqualified Equity Interests or (d) provides for the scheduled payments of dividends in cash (other than in respect of taxes), in each case, prior to the date that is 91 days after the later of (x) the Revolving Credit Maturity Date and (y) the Term Loan Maturity Date; provided that if such Equity Interests are issued pursuant to a plan for the benefit of employees of Holdings or its Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by Holdings or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations as a result of such employee’s termination, death, invalidity or disability; provided , further , that if such Equity Interests are issued by (x) any direct or indirect Subsidiary of the Borrowers to a Loan Party or (y) any direct or indirect Subsidiary of the Borrowers that is not a Loan Party to any other direct or indirect Subsidiary of the Borrowers that is not a Loan Party, such Equity Interests shall not constitute Disqualified Equity Interests.

Disqualified Institutions ” means (a) those banks, financial institutions and other institutional lenders and Persons (or related funds of such Persons), (b) any Competitor and (c) any Subsidiary or Affiliate (other than their financial investors that are not operating companies or Affiliates of operating companies and other than any Affiliate that is a bona fide diversified debt fund) of the foregoing, in the case of clauses (a), (b) and (c) above, identified in writing by

 

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the Borrowers or the Sponsor to Administrative Agent on December 23, 2013; provided, that upon reasonable notice to the Administrative Agent, the Borrowers shall be permitted to supplement in writing the list of Competitors that are Disqualified Lenders after the date hereof, but which supplement shall not apply to assignments and participations entered into prior to such supplement.

Dollar ” and “ $ ” mean lawful money of the United States.

Domestic Subsidiary ” means any Subsidiary that is organized under the laws of any state of the United States or the District of Columbia (but excluding any territory or possession thereof).

Environmental Laws ” means any and all applicable Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, licenses, legally-binding agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any Hazardous Materials into the environment, including those related to air emissions and other discharges of Hazardous Materials to waste or public systems.

Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of a Loan Party or any of its Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract or agreement to the extent liability is assumed or imposed with respect to any of the foregoing.

Equity Interests ” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in, including partnership, member or trust interests) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, and all of the other ownership or profit interests in such Person.

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto.

ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control with any Loan Party or a Subsidiary thereof within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Sections 412 and 430 through 436 of the Code and Section 302 through 305 and 4007 of ERISA).

ERISA Event means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of any Loan Party, a Subsidiary thereof or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by

 

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any Loan Party, a Subsidiary thereof or any ERISA Affiliate from a Multiemployer Plan or receipt by any Loan Party, a Subsidiary thereof or any ERISA Affiliate of notification that a Multiemployer Plan is in reorganization or that any Multiemployer Plan is insolvent or being terminated; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination, each under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan or Multiemployer Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party, a Subsidiary thereof or any ERISA Affiliate; or (i) any failure by any Pension Plan to satisfy the minimum funding standards (within the meaning of Sections 412 or 430 of the Code or Section 302 of ERISA) applicable to such Pension Plan, whether or not waived.

Eurodollar Rate ” means for any Interest Period with respect to a Eurodollar Rate Loan, a rate per annum determined by Administrative Agent pursuant to the following formula:

 

                       Eurodollar Base Rate
  Eurodollar Rate =                                                                          
       1.00 – Reserve Percentage   

provided herein the Eurodollar Rate shall not be less than 1.25% per annum.

Eurodollar Base Rate ” means, for such Interest Period, the offered rate per annum for deposits of Dollars for the applicable Interest Period that appears on Reuters Screen LIBOR01 Page as of 11:00 A.M. (London, England time) two London Banking Days prior to the first day in such Interest Period; provided that if such rate is not available at such time for any reason, then the “Eurodollar Base Rate” for such Interest Period shall be the rate per annum determined by Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in immediately available funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted and with a term equivalent to such Interest Period would be offered by such other authoritative source (as is selected by Administrative Agent in its sole reasonable discretion) to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London, England time) two London Banking Days prior to the commencement of such Interest Period.

Eurodollar Reserve Percentage ” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding. The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.

Eurodollar Rate Loan ” means a Loan (or segment of a Loan) that bears interest at a rate based on the Eurodollar Rate.

 

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Event of Default ” has the meaning specified in Section 8.01 .

Event of Loss ” means, with respect to any property, any of the following: (a) any loss, destruction or damage of such property or (b) any condemnation, seizure, or taking, by exercise of the power of eminent domain or otherwise, of such property by any Governmental Authority, or confiscation of such property or the requisition of the use of such property by any Governmental Authority.

Exchange Act ” means the Securities Exchange Act of 1934.

Excess Cash Flow ” has the meaning specified in the Excess Cash Flow Certificate.

Excess Cash Flow Certificate ” means a certificate substantially in the form of Exhibit E .

Excluded Domestic Holdco ” means a Domestic Subsidiary the primary assets of which are the Equity Interests of one or more Foreign Subsidiaries and, if applicable, Indebtedness of such Foreign Subsidiaries.

Excluded Domestic Subsidiary ” means any Domestic Subsidiary that is a direct or indirect Subsidiary of (a) a Foreign Subsidiary or (b) an Excluded Domestic Holdco.

Excluded Subsidiary ” means any Subsidiary of the Borrowers (a) that is a Foreign Subsidiary, an Excluded Domestic Subsidiary or an Excluded Domestic Holdco, (b) that is a captive insurance company, (c) that is a not-for-profit Subsidiary, (d) that is a special purpose entity, (e) that is prohibited or restricted by contracts with a Person who is not an Affiliate of a Borrower, applicable law (including any requirement to obtain governmental authority or third party consent (unless such consent has been received)), rule or regulation from providing a guaranty (but only so long as such prohibition or restriction is in effect) and (f) to the extent the Administrative Agent and Borrowers mutually determine the cost and/or burden of obtaining the guaranty from such Subsidiary outweigh the benefits to the Lenders.

Excluded Swap Obligation ” means, with respect to any Loan Party (other than the direct counterparty of such Swap Obligation), any Swap Obligation of a Loan Party (other than the direct counterparty of such Swap Obligation) if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal or unlawful under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time the Guarantee of such Loan Party or the grant of such security interest would otherwise become effective with respect to such Swap Obligation but for such Loan Party’s failure to constitute an “eligible contract participant” at such time. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal or unlawful under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the

 

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application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time the Guarantee of such Loan Party or the grant of such security interest would otherwise have become effective with respect to such Swap Obligation but for such Loan Party’s failure to constitute an “eligible contract participant” at such time.

Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated) and franchise Taxes, in each case, imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof), and any other Taxes imposed by an jurisdiction as a result of a present or former connection of such Recipient with such jurisdiction (other than any such connection arising solely from such Recipient having executed, enforced, delivered, performed its obligations, becomes a party to or received any payment under this Agreement or any other Loan Document), (b) branch profit Taxes imposed by the United States or any similar tax imposed by any other Governmental Authority, (c) U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Recipient pursuant to a law in effect on the date on which such Recipient (i) becomes a party to this Agreement (other than pursuant to an assignment request by Borrower Agent under Section 10.13 ) or (ii) in the case of a Lender, changes its Lending Office, except in each case, in the case of a Lender, to the extent that, pursuant to Section 3.01 amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (d) United States federal withholding Taxes (including backup withholding taxes) that would not have been imposed but for such Recipient’s failure to comply with Section 3.01(e) (except where the failure to comply with Section 3.01(e) was the result of a change in law, ruling, regulation, treaty, directive, or interpretation thereof by a Governmental Authority after the date the Recipient became a party to this Agreement or a Participant, and (e) any U.S. federal withholding Taxes imposed under FATCA.

Executive Order ” has the meaning specified in Section 5.15 .

Existing Floor ” means, (a) with respect to the Eurodollar Base Rate, the rate specified in the definition of “Eurodollar Rate” and (b) with respect to the Base Rate, the rate specified in clause (c) of the definition of “Base Rate”.

Extending Lender ” is defined in Section 10.01 .

Extension Agreement ” means an extension agreement, in a form reasonably satisfactory to the Administrative Agent, among Holdings, the Borrowers and one or more Extending Lenders, effecting one or more Extension Permitted Amendments and such other amendments hereto and to the other Loan Documents as are contemplated by Section 10.01 .

Extension Offer ” is defined in Section 10.01 .

 

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Extension Permitted Amendment ” means an amendment to this Agreement and the other Loan Documents, effected in connection with an Extension Offer pursuant to Section 10.01 , providing for an extension of the Revolving Credit Maturity Date and/or Term Loan Maturity Date applicable to the Extending Lenders’ Loans and/or Commitments of the applicable Extension Request Class (such Loans or Commitments being referred to as the “ Extended Loans ” or “ Extended Commitments ”, as applicable) and, in connection therewith, may also provide for (a) an increase in the rate of interest accruing on such Extended Loans, (b) in the case of Extended Loans that are Term Loans, a modification of the scheduled amortization applicable thereto, provided that the Weighted Average Life to Maturity of such Extended Loans shall be no less than the remaining Weighted Average Life to Maturity (determined at the time of such Extension Offer) of the Term Loans, (c) a modification of voluntary or mandatory prepayments applicable thereto (including amortization payments), provided that voluntary and mandatory prepayments (including amortization payments) applicable to any other Loans shall not be affected by the terms thereof, (d) an increase in the fees payable to, or the inclusion of new fees to be payable to, the Extending Lenders in respect of such Extension Offer or their Extended Loans or Extended Commitments, and/or (e) different covenants and other provisions that apply only to periods after the then latest maturity date.

Extension Request Class ” is defined in Section 10.01 .

FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and, any current or future regulations or official interpretations thereof, any applicable agreement entered into pursuant to Section 1471(b)(1) of the Code, and any applicable intergovernmental agreement with respect thereto.

Facility ” means the Term Loan Facility and/or the Revolving Credit Facility, as the context may require.

Facility Termination Date ” means the date as of which Payment in Full of all Obligations has occurred.

FDA ” means the Federal Food and Drug Administration and any successor thereto.

Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to BMO on such day on such transactions as reasonably determined by Administrative Agent.

Fee Letter ” means the letter agreement, dated as of December 29, 2013 between Initial Borrower and Administrative Agent.

 

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Fiscal Quarter ” means each fiscal quarter of the Borrowers and their Subsidiaries ending on March 31, June 30, September 30 and December 31 of each year.

Fiscal Year ” means each twelve month period of the Borrowers and their Subsidiaries, ending on December 31 of each year.

Foreign Assets Control Regulations ” has the meaning specified in Section 5.15 .

Foreign Lender ” means a Recipient that is not a U.S. Person.

Foreign Subsidiary ” means any Subsidiary that is not a Domestic Subsidiary.

Fraudulent Conveyance ” has the meaning specified in Section 11.09 .

FRB ” means the Board of Governors of the Federal Reserve System of the United States.

Fronting Exposure ” means, at any time there is a Defaulting Lender that is a Revolving Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders.

Fund ” means any Person (other than a natural Person) that is primarily engaged in making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit or debt securities in the ordinary course of its activities.

GAAP ” means generally accepted accounting principles as in effect from time to time in the United States, consistently applied, subject to Sections 1.03(b) and 1.03(c) below.

Governmental Authority ” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

Guarantee ” means, as to any Person, any (a) obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working

 

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capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith; provided, that with respect to clause (b) of the preceding sentence, if the subject Indebtedness or other obligation is non-recourse, then the amount of such Guarantee shall be deemed to be the lower of the amount of such Guarantee determined pursuant to the foregoing terms of this sentence or the fair market value of the property subject to such Lien. The term “Guarantee” as a verb has a corresponding meaning.

Guarantor ” means Holdings (from and after the joinder of J.A. Cosmetics and certain of its Domestic Subsidiaries as “Borrowers” hereunder), each Subsidiary Guarantor and each other Person that becomes a guarantor of all or part of the Obligations after the Closing Date pursuant to Section 6.12 of the Agreement or otherwise.

Hazardous Materials ” means all substances or wastes listed, defined or regulated pursuant to any Environmental Law as explosive, radioactive, hazardous, toxic or as pollutants and petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law due to their hazardous, toxic, dangerous or deleterious properties or characteristics.

Holdings ” has the meaning specified in the introductory paragraph hereto.

Honor Date ” has the meaning specified in Section 2.03(c)(i) .

Increase ” has the meaning specified in Section 2.18(a) .

Increase Effective Date ” has the meaning specified in Section 2.18(d) .

Indebtedness ” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a) all obligations of such Person for borrowed money and all obligations (direct or contingent) of such Person evidenced by or arising under bonds (including, without limitation, surety, customs, reclamation or performance bonds), debentures, notes, loan agreements or other similar instruments;

 

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(b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guarantees and similar instruments;

(c) net obligations of such Person under any Swap Contract;

(d) (i) all obligations of such Person to pay the deferred purchase price of property or services (other than (x) accrued expenses and trade payables incurred in the Ordinary Course of Business, (y) any working capital adjustment or any earnout obligation, deferred compensation, non-compete or similar obligations under employment agreements of such Person and (z) obligations with respect to seller notes), in each case, to the extent due and payable and (ii) all obligations of such Person with respect to seller notes;

(e) indebtedness secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

(f) obligations under Capital Leases and synthetic or other similar financing leases of such Person;

(g) all obligations of such Person with respect to the redemption, repayment or other repurchase or payment in respect of any Disqualified Equity Interest; and

(h) all Guarantees of such Person in respect of any of the foregoing.

For all purposes hereof, the Indebtedness of any Person shall (A) include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, to the extent such Indebtedness is recourse to such Person and only to the extent such Indebtedness would be included in the calculation of Consolidated Total Net Debt and (B) in the case of the Borrowers and their Subsidiaries, exclude all intercompany Indebtedness incurred in the Ordinary Course of Business consistent with past practice (other than for purposes of Section 7.01 hereunder). The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any Capital Lease or synthetic or other similar financing lease as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. The amount of any Indebtedness described in clause (e) above shall be limited to the lesser of the fair market value of any property securing such indebtedness as determined by such Person in good faith and (ii) the aggregate unpaid amount of such Indebtedness.

Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

Indemnitees ” has the meaning specified in Section 10.04(b) .

Information ” has the meaning specified in Section 10.07 .

 

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Initial Borrower ” has the meaning specified in the introductory paragraph hereto.

Intellectual Property ” means all rights, title and interest in intellectual property arising under applicable law, including: trade secrets, trademarks, internet domain names, service marks, trade dress, trade names, brand names, business names, designs, logos, slogans (and all translations, adaptations, derivations and combinations of the foregoing) and other source and/or business identifiers, and the goodwill of the business relating thereto and all registrations or applications for registrations which have heretofore been or may hereafter be issued thereon throughout the world; copyrights (including copyrights for computer programs) and copyright registrations or applications for registrations which have heretofore been or may hereafter be issued throughout the world; patent applications and patents; and industrial design applications and registered industrial designs.

Intercreditor Agreement ” means that certain subordination agreement among Administrative Agent, U.S. Bank National Association, as collateral agent for the holders of Subordinated Indebtedness, the holders of Subordinated Indebtedness and the Loan Parties dated as of the date hereof and in form and substance reasonably acceptable to Administrative Agent.

Interest Payment Date ” means, (a) as to any Eurodollar Rate Loan, (i) the last day of each Interest Period applicable to such Eurodollar Rate Loan; provided that if any Interest Period for a Eurodollar Loan is greater than three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates, (ii) with respect to the portion prepaid or converted, any date that a Term Loan is prepaid or converted, in whole or in part, and with respect to the portion repaid or converted, any date that a Revolving Loan is repaid or converted, in whole or in part, and (iii) the Maturity Date with respect to such Loan; and (b) as to any Base Rate Loan (including a Swing Line Loan), (i) the last day of each Fiscal Quarter with respect to interest accrued through (and including) the last day of such Fiscal Quarter, (ii) with respect to the portion prepaid or converted, any date that a Term Loan is prepaid or converted, in whole or in part, and with respect to the portion repaid or converted, any date that a Revolving Loan is repaid or converted, in whole or in part, and (iii) the Maturity Date with respect to such Loan; provided , further , that interest accruing at the Default Rate shall be payable from time to time upon written demand of Administrative Agent or Required Lenders.

Interest Period ” means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending, in each case, on the date one, two, three or six months thereafter, or if available to each applicable Lender, twelve months thereafter, or such other date (not to exceed twelve months) thereafter as the applicable Lenders may agree, as selected by Borrower Agent in its Committed Loan Notice; provided that:

(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

 

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(b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

(c) no Interest Period shall extend beyond the Maturity Date for the Term Loan or Revolving Loan to which such Interest Period applies.

Investment ” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the ownership, purchase or other acquisition of Equity Interests or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person (excluding loans or advances made in the Ordinary Course of Business (including travel advances and other similar cash advances) to employees and officers), or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, less all returns of principal or equity thereon (and without adjustment by reason of the financial condition of such other Person) and shall, if made by the transfer or exchange of property other than cash, be deemed to have been made in an original principal or capital amount equal to the fair market value of such property at the time of such transfer or exchange.

ISP ” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance of such Letter of Credit).

Issuer Documents ” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and any Borrower (or any other Loan Party) or in favor the L/C Issuer and relating to any such Letter of Credit.

J.A. Cosmetics ” means J.A. Cosmetics US, Inc., a Delaware corporation.

Joinder Agreement ” means a joinder agreement in the form attached hereto as Exhibit H or in a writing in any other form reasonably acceptable to Administrative Agent duly completed executed by a Person joining this Agreement as a Borrower or Guarantor, as the case may be.

Laws ” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

 

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L/C Advance ” means each Revolving Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.

L/C Borrowing ” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed by the Honor Date.

L/C Credit Extension ” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.

L/C Exposure ” means, at any time, for any Lender, such Lender’s Applicable Percentage of the total L/C Obligations at such time.

L/C Issuer ” means BMO and its Affiliates and/or any other Lender that, at the request of Borrowers and with the consent of Administrative Agent, agrees, in such Lender’s sole discretion, to become an L/C Issuer, each in its capacity as an issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder. At any time there is more than one L/C Issuer, all singular references to the L/C Issuer shall mean any L/C Issuer, either L/C Issuer, each L/C Issuer, the L/C Issuer that has issued the applicable Letter of Credit, or both or all L/C Issuers, as the context may require.

L/C Obligations ” means, as at any date of determination, (a) the aggregate undrawn face amount of all outstanding Letters of Credit, plus (b) the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

Lender ” has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the L/C Issuer and the Swing Line Lender.

Lender Party ” means (a) each Lender, (b) each Credit Product Provider to the extent it holds Credit Product Obligations and was a Lender or an Affiliate of a Lender when such Person provided Credit Product Arrangements to the Loan Parties, (c) the Credit Product Provider providing the Designated FX Swap, (d) Administrative Agent, (e) the L/C Issuer, (f) the Swing Line Lender, (g) the Arranger and (h) the successors and permitted assigns of each of the foregoing.

Lender Party Expenses ” has the meaning set forth in Section 10.04(a) .

Lending Office ” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify Borrower Agent and Administrative Agent in writing.

Letter of Credit ” means any standby or documentary letter of credit issued by L/C Issuer for the account of a Borrower or any of its Subsidiaries, or any indemnity, guarantee, exposure transmittal memorandum or similar form of credit support issued by Administrative Agent or L/C Issuer for the benefit of a Borrower or any of its Subsidiaries.

 

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Letter of Credit Application ” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.

Letter of Credit Expiration Date ” means, with respect to any Letter of Credit, the day that is the earlier of (a) the date that is twelve months after the date such Letter of Credit is issued and (b) the date that is five Business Days prior to the Revolving Credit Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day) or, to the extent such Letter of Credit is Cash Collateralized, such later date as may be permitted by Section 2.03(a)(vi) hereof.

Letter of Credit Fees ” means, collectively or individually as the context may indicate, the fees with respect to Letters of Credit described in Section 2.09(b) .

Letter of Credit Sublimit ” means $5,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Credit Commitments.

License ” means any license or agreement under which a Loan Party is granted any license right in or to Intellectual Property.

Lien ” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).

Loan ” means an extension of credit under Article II in the form of a Revolving Loan, a Term Loan or a Swing Line Loan, including any Increases.

Loan Account ” has the meaning specified in Section 2.11(a) .

Loan Documents ” means this Agreement, each Note, each Security Instrument, the Intercreditor Agreement, and the perfection certificate delivered on the Closing Date.

Loan Obligations ” means all Obligations other than amounts (including fees) owing by any Loan Party or any Subsidiary of any Loan Party pursuant to any Credit Product Arrangements.

Loan Parties ” means Borrowers, Holdings and the Subsidiary Guarantors, collectively.

London Banking Day ” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

 

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Management Agreement ” means that certain Management Services Agreement dated as of January 31, 2014 among the Initial Borrower, J.A. Cosmetics and TPG Growth II Management, LLC.

Material Adverse Effect ” means (a) as of the Closing Date, a Material Adverse Effect (as defined in the Purchase Agreement) and (b) thereafter (i) a material adverse change in, or a material adverse effect on, the operation, business, assets, properties or financial condition of the Loan Parties taken as a whole, (ii) a material impairment of the ability of the Loan Parties taken as a whole to perform their payment obligations under the Loan Documents or (iii) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party (other than to the extent a result of the action or inaction of the Administrative Agent, the Lenders, the other Lender Parties under the Loan Documents or their respective Affiliates, officers, employees, agents, attorneys or representatives).

Material License ” has the meaning specified in Section 6.05(d) .

Maturity Date ” means either of the Revolving Credit Maturity Date or the Term Loan Maturity Date.

Maximum Rate ” has the meaning specified in Section 10.09 .

Measurement Period ” means, at any date of determination, the most recently completed consecutive four Fiscal Quarters of Holdings and its Subsidiaries for which financial statements have or should have been delivered in accordance with Section 6.01(b) .

Minimum Collateral Amount ” means, at any time, (a) with respect to Cash Collateral consisting of cash or Deposit Account balances provided to reduce or eliminate Fronting Exposure, an amount equal to 104% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time and (b) with respect to Cash Collateral consisting of cash or Deposit Account balances provided in accordance with the provisions of Section 2.16(a)(i) or 2.16(a)(ii) , an amount equal to 104% of the Outstanding Amount of all L/C Obligations.

Minority Investment ” means any Person (including any joint ventures, limited liability companies or partnerships) other than a Subsidiary in which the Borrowers or any Subsidiary owns any Equity Interests.

Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.

Mortgaged Property ” means the Real Estate of the Loan Parties required from time to time to be subject to a Mortgage pursuant to the terms of the Loan Documents.

Mortgages ” means the mortgages, deeds of trust, or deeds to secure debt executed by a Loan Party on or about the Closing Date, or from time to time thereafter in favor of Administrative Agent, for the benefit of the Lender Parties, by which such Loan Party has granted to Administrative Agent, as security for the Obligations, a Lien upon the Mortgaged Property described therein.

 

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Multiemployer Plan ” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Loan Party makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions or with respect to which any Loan Party has any current or contingent liability as a result of being considered a single employer with any ERISA Affiliate.

Net Cash Proceeds ” means (a) with respect to the Disposition of any asset by any Borrower or any Subsidiary or any Event of Loss, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such Disposition or Event of Loss (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received and, with respect to any Event of Loss, any insurance proceeds or condemnation awards in respect of such Event of Loss actually received by or paid to or for the account of the Borrowers or any Subsidiary but excluding, in any event, any cash and Cash Equivalents received solely as proceeds of business interruption insurance) over (ii) the sum of (A) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness that is secured by the asset subject to such Disposition or Event of Loss and that is required to be repaid in connection with such Disposition or Event of Loss, (B) the out-of-pocket fees and expenses (including attorneys’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees and, with respect to any Event of Loss, costs incurred in connection with the collection of such proceeds, awards or other payments or any settlement of claims with respect thereto) actually incurred by the Borrowers or such Subsidiary in connection with such Disposition or Event of Loss, (C) taxes paid or reasonably estimated to be actually payable in connection therewith, or upon the distribution to a Loan Party of such proceeds from such Disposition or Event of Loss, and (D) any reserve for adjustment in respect of (x) the sale price of such asset or assets established in accordance with GAAP and (y) any liabilities associated with such asset or assets and retained by the Borrowers or any Subsidiary after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or with respect to any indemnification obligations associated with such transaction, and it being understood that “Net Cash Proceeds” shall include (i) any cash or Cash Equivalents received upon the Disposition of any non-cash consideration by the Borrowers or any Subsidiary in any such Disposition and (ii) upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in clause (D) above or if such liabilities have not been satisfied in cash and such reserve is not reversed within 365 days after such Disposition or Event of Loss, the amount of such reserve; and (b) with respect to the incurrence or issuance of any Indebtedness by the Borrowers or any Subsidiary, the excess, if any, of (x) the sum of the cash received in connection with such incurrence or issuance over (y) the sum of (A) the reasonable investment banking fees, underwriting discounts, commissions, costs and other out-of-pocket expenses and other reasonable and customary expenses, incurred by the Borrowers or such Subsidiary in connection with such incurrence or issuance and (B) taxes paid or reasonably estimated to be actually payable in connection therewith, or upon the distribution to a Loan Party of proceeds from such incurrence or issuance.

Non-Consenting Lender ” has the meaning specified in Section 10.01 .

 

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Non-Debt Fund Affiliate ” means any Affiliate of the Sponsor other than (a) Holdings or any of its Subsidiaries, (b) any Debt Fund Affiliate and (c) any natural person.

Non-Defaulting Lender ” means, at any time, each Lender that is not a Defaulting Lender at such time.

Non-Extension Notice Date ” has the meaning specified in Section 2.03(b)(iii).

Note ” means any or all of the Revolving Loan Notes and/or the Term Loan Notes, as applicable.

Obligations ” means all amounts owing by any Loan Party to Administrative Agent, any Lender or any other Lender Party (excluding Persons specified in clause (b) of the definition thereof solely to the extent of any Credit Product Obligations owed to such Persons) pursuant to or in connection with this Agreement or any other Loan Document or otherwise with respect to any Loan or Letter of Credit, including without limitation, all principal, interest (including any interest accruing after the filing of any petition in bankruptcy or the commencement of any proceeding under any Debtor Relief Law relating to any Loan Party, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), all reimbursement obligations, fees, expenses, indemnification and reimbursement payments, costs and expenses (including all fees and expenses of counsel to Administrative Agent incurred and payable by the Loan Parties pursuant to this Agreement or any other Loan Document), whether direct or indirect, absolute or contingent, liquidated or unliquidated, now existing or hereafter arising hereunder or thereunder, together with all renewals, extensions, modifications or refinancings thereof; provided, that Obligations shall not include Excluded Swap Obligations.

OFAC ” has the meaning specified in Section 5.15 .

Offered Loans ” has the meaning specified in Section 2.19(c) .

Ordinary Course of Business ” means the ordinary course of business of the Borrowers and their Subsidiaries and undertaken in good faith.

Organization Documents ” means, as applicable with respect to any Person, its certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); its certificate or articles of formation or organization and operating agreement; or its partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization.

Other Subordinated Indebtedness ” has the meaning specified in Section 7.01(v) .

Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, excluding for the avoidance of doubt, Excluded Taxes.

 

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Outstanding Amount ” means, as applicable, the aggregate outstanding principal amount of Revolving Loans, Swing Line Loans and/or Term Loans on any date after giving effect to any Borrowings, prepayments or repayments thereof occurring on such date, and with respect to any L/C Obligations, the aggregate outstanding amount of such L/C Obligations on any date after giving effect to any L/C Credit Extension or other changes in the aggregate amount of the L/C Obligations occurring on such date.

Outstanding Items ” has the meaning specified in Section 6.18 .

Overnight Rate ” means, for any day, with respect to any amount denominated in Dollars, the greater of (a) the Federal Funds Rate and (b) an overnight rate determined by Administrative Agent, the L/C Issuer, or the Swing Line Lender, as the case may be, in accordance with banking industry rules on interbank compensation.

Participant ” has the meaning specified in clause (d) of Section 10.06 .

Participation Register ” has the meaning specified in clause (d) of Section 10.06 .

Payment in Full ” or “ Payment in Full of the Obligations ” means (a) the payment in full in cash of all Loan Obligations (other than contingent indemnification claims for which no claim has been asserted), together with all accrued and unpaid interest and fees thereon, other than L/C Obligations that have been fully Cash Collateralized, (b) the Commitments shall have terminated or expired, and (c) the obligations and liabilities of each Loan Party under all Credit Product Arrangements constituting Secured Obligations, to the extent such obligations and liabilities are then due and outstanding as of the date clauses (a) and (b) preceding have been satisfied and the amount of such obligations and liabilities has been provided to Administrative Agent and Borrower Agent in writing by the applicable Credit Product Provider on or prior to such date, shall have been paid and satisfied in full or fully Cash Collateralized (other than contingent indemnification claims for which no claim has been asserted). “ Paid in Full ,” “ paid in full ,” “ payment in full ,” and “ payment in full of the Obligations ” have meanings correlative thereto.

PBGC ” means the Pension Benefit Guaranty Corporation or any successor thereto.

Pension Act ” means the Pension Protection Act of 2006.

Pension Funding Rules ” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and Multiemployer Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA, and any sections of the Code or ERISA related thereto that are enacted after the date of this Agreement.

Pension Plan ” means any employee pension benefit plan (other than a Foreign Plan or Multiemployer Plan) that is maintained or is contributed to by any Loan Party, or with respect to which any Loan Party has any current or contingent liability as a result of being considered a single employer with any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.

 

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Permitted Acquisition ” means any Acquisition by a Borrower or a Subsidiary of a Borrower, including in the case of any Permitted Foreign Acquisition, any Foreign Subsidiary, (i) that has been approved by the Required Lenders or (ii) so long as all of the following conditions have been satisfied:

(a) such Acquisition shall be structured as (1) an asset acquisition by such Borrower or Subsidiary, as applicable, of all or substantially all of the assets of the Person whose assets are being acquired (or all or substantially all of a line or lines of business of such Person), (2) a merger of the Person to be acquired with and into such Borrower or Subsidiary, as applicable, with such Borrower or Subsidiary, as applicable, as the surviving corporation in such merger, unless the surviving entity has otherwise assumed all obligations of such Borrower or Subsidiary, as applicable, under the Loan Documents pursuant to documentation reasonably acceptable to Administrative Agent or (3) a purchase of (x) any remaining Equity Interests in a Minority Investment, (y) any remaining Equity Interest of a Subsidiary of Holdings that is not a wholly-owned Subsidiary or (z) no less than a majority of the Equity Interests of the Person to be acquired by such Loan Party;

(b) the Person to be (or whose assets are to be) acquired does not oppose such Acquisition (unless otherwise agreed by the Required Lenders), such Acquisition shall be consummated in accordance with the terms of the agreements and documents related thereto and the line or lines of business of the Person to be acquired constitute Core Businesses;

(c) (i) no Event of Default under Section 8.01(a) or 8.01(f) shall have occurred and be continuing either immediately prior to or immediately after giving effect to such Acquisition and (ii) no Specified Event of Default shall have occurred and be continuing as of the date the acquisition agreement for such Acquisition is entered into and effective;

(d) to the extent such Acquisition involves a Permitted Foreign Acquisition, after giving effect to such Permitted Foreign Acquisition, the Loan Parties shall be in compliance with the applicable provisions in Section 7.03 governing Investments to Foreign Subsidiaries;

(e) after giving pro forma effect to such Acquisition (including the payment of cash and other property given as consideration, any Indebtedness incurred, assumed or acquired by any Borrower or Subsidiary, as applicable, in connection with such Acquisition and all fees expenses and transaction costs incurred in connection therewith), (i) the Loan Parties shall be in compliance on a Pro Forma Basis with the covenants set forth in Section 7.12(a) and (b)  for the Fiscal Quarter most recently ended as to which financial statements were required to be delivered pursuant to this Agreement, (ii) the Loan Parties shall have on a Pro Forma Basis a Consolidated Senior Net Leverage Ratio of not greater than 3.65:1.00 for the Fiscal Quarter most recently ended as to which financial statements were required to be delivered pursuant to this Agreement and (iii) the Loan Parties shall have on a Pro Forma Basis a Consolidated Total Net Leverage Ratio of not greater than 5.05:1.00 for the Fiscal Quarter most recently ended as to which financial statements were required to be delivered pursuant to this Agreement, unless the Consolidated Total Net Leverage Ratio would not, directly or indirectly, increase immediately after consummation of such Acquisition;

 

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(f) Borrower Agent shall have furnished Administrative Agent (i) two (2) Business Days’ (or such shorter period as may be agreed by Administrative Agent) prior to the consummation of such intended Acquisition, a current draft of the acquisition agreement (together with exhibits and schedules thereto and, to the extent required in the acquisition agreement, all required regulatory and third party approvals and copies of environmental assessments, if any) for such intended Acquisition (and final copies thereof as and when executed) and (ii) with respect to any intended Acquisition in which the Permitted Acquisition Consideration exceeds $5,000,000, (w) a description of the proposed Acquisition, (x) pro forma consolidated projections with respect to the intended Acquisition, (y) historical financial statements for the target of the intended Acquisition and (z) such other customary information or documentation regarding the intended Acquisition as Administrative Agent may reasonably request, including, to the extent available, a due diligence package;

(g) Borrower Agent shall have furnished to Administrative Agent at least two (2) Business Days (or such shorter period as may be agreed by Administrative Agent) prior to the date on which any such Acquisition is to be consummated or such shorter time as Administrative Agent may allow, a certificate of a Responsible Officer of Borrower Agent with a reasonably detailed calculation of item (e)(i), (ii) and (iii) above;

(h) to the extent obtained by the Loan Parties or their Affiliates, a quality of earnings report with respect to the target of such Acquisition;

(i) the Permitted Acquisition Consideration for such Acquisition does not exceed $42,500,000 (or $10,000,000 in the case of Permitted Foreign Acquisitions) plus the Available Amount when aggregated with all other Acquisitions consummated during the term of this Agreement; provided, that the limitation provided in this clause (i) shall not apply (a) with respect to that portion of the consideration in the form of Equity Interests of Holdings (or any parent entity thereof) that are not Disqualified Equity Interests and (b) to the extent such Acquisition is financed with the Net Cash Proceeds of issuances by Holdings (or any parent entity thereof) of, or capital contributions to, its Equity Interests that are not Disqualified Equity Interests, Permitted Cure Securities or cash common equity contributions in connection with an Equity Cure pursuant to Section 8.04 (other than issuances of, or contributions to, Equity Interests that are included in the calculation of the Available Amount or the Net Cash Proceeds of which are used to make Restricted Payments under Section 7.06(i)) and solely to the extent the Net Cash Proceeds of such issuances or contributions are contributed by Holdings to a Borrower as cash common equity; and

(j) such Permitted Acquisition shall involve assets, except with respect to a Permitted Foreign Acquisition, principally located in the United States (and, in connection with the acquisition of the Equity Interests of a Person being acquired, such Person shall be organized under the laws of a state within the United States) (any Acquisition that satisfies all of the conditions to satisfy a Permitted Acquisition, other than this clause (j) is referred to herein as a “ Permitted Foreign Acquisition ”).

 

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Permitted Acquisition Consideration ” means the purchase consideration for a Permitted Acquisition and all other payments (but excluding any related acquisition fees, costs and expenses incurred in connection with any Permitted Acquisition), directly or indirectly, by Borrowers or any Subsidiary in exchange for, or as part of, or in connection with, a Permitted Acquisition, whether paid in cash or by exchange of Equity Interests or of any property or incurrence or assumption of Indebtedness or otherwise and whether payable at or prior to the consummation of a Permitted Acquisition or deferred for payment at any future time (including earnouts, seller notes and other deferred purchase price obligations); provided, that any such future payment that is an earnout or other deferred purchase price obligation shall be included in the determination of Permitted Acquisition Consideration as the maximum amount of such earnout or other deferred purchase price obligation; provided, further, that Permitted Acquisition Consideration shall not include (a) the portion of consideration or payment constituting salary payments pursuant to ordinary course employment agreements and salary bonuses payable thereunder to the extent relating to the applicable Permitted Acquisition and (b) the portion of consideration or payment attributable to cash and Cash Equivalents constituting working capital acquired by Borrowers or their Subsidiaries as part of the applicable Permitted Acquisition in excess of the working capital target set forth in the purchase agreement for such Permitted Acquisition.

Permitted Cure Security ” means an Equity Interest other than a Disqualified Equity Interest or other capital consideration the proceeds of which are utilized in connection with a Cure Right pursuant to Section 8.04 .

Permitted Liens ” has the meaning specified in Section 7.02 .

Permitted Refinancing ” means, with respect to any Person, any modification (other than a release of such Person), refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, and as otherwise permitted under Section 7.01 , (b) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 7.01(a) , such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 7.01(e) , at the time thereof, no Event of Default shall have occurred and be continuing, (d) such modified, refinanced, refunded, renewed or extended Indebtedness shall only be guaranteed by Holdings and/or the Subsidiaries of the Borrowers that are otherwise or are required to be guarantors of the Indebtedness being modified, refinanced, refunded, renewed or extended or that are otherwise or are required to be guarantors of the Indebtedness under the Subordinated Indebtedness Documents, in each case, at the time of such modification, refinancing, refund, renewal or extension of Indebtedness occurs, and any other Subsidiaries that are acquired in connection with such refinancing, (e) such modified, refinanced,

 

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refunded, renewed or extended Indebtedness shall not be secured by any property or assets other than the property or assets that were or are required to be collateral (and then only with the same priority) for the Indebtedness being modified, refinanced, refunded, renewed or extended at the time of such modification, refinancing, refunding, renewal or extension, and (f) if such Indebtedness being modified, refinanced, refunded, renewed or extended is Indebtedness permitted pursuant to Section 7.01(b) or (l) , to the extent such Indebtedness being so modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being so modified, refinanced, refunded, renewed or extended or otherwise at least as favorable to the Lenders as those contained in the Indebtedness under the Subordinated Indebtedness Documents (including the Intercreditor Agreement); provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower Agent has determined in good faith that such terms and conditions satisfy the foregoing requirement (which determination shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement.

Permitted Sale Leaseback ” means any Sale Leaseback consummated by a Borrower or any of its Subsidiaries after the Closing Date; provided that any such Sale Leaseback not between (a) a Loan Party and another Loan Party or (b) a Subsidiary that is not a Loan Party and another Subsidiary that is not a Loan Party must be, in each case, consummated for fair value as determined at the time of consummation in good faith by (i) such Borrower or such Subsidiary and (ii) in the case of any Sale Leaseback (or series of related Sales Leasebacks) the aggregate proceeds of which exceed $3,000,000, the board of directors (or equivalent governing body) of such Borrower or such Subsidiary (which such determination may take into account any retained interest or other Investment of such Borrower or such Subsidiary in connection with, and any other material economic terms of, such Sale Leaseback).

Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

Plan ” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan, but other than a Multiemployer Plan and other than a Foreign Plan), maintained for employees of any Loan Party or any such plan to which any Loan Party is required to contribute (including any Pension Plan which any ERISA Affiliate maintains, or is required to contribute to) on behalf of any of its employees.

Platform ” has the meaning specified in Section 10.02(c) .

Post-Acquisition Period ” means, with respect to any Permitted Acquisition, the period beginning on the date such Permitted Acquisition is consummated and ending on the last day of the fourth full consecutive Fiscal Quarter immediately following the date on which such Permitted Acquisition is consummated.

 

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Pro Forma Adjustment ” means, for any Measurement Period that includes all or any part of a Fiscal Quarter included in any Post-Acquisition Period, with respect to the Acquired EBITDA of the applicable Acquired Entity or Business or the Adjusted Consolidated EBITDA of the Loan Parties and their Subsidiaries, (a) the pro forma increase or decrease in such Acquired EBITDA or such Adjusted Consolidated EBITDA, as the case may be, that is factually supportable and is expected to have a continuing impact, and (b) additional good faith pro forma adjustments arising out of cost savings initiatives attributable to such transaction and additional costs associated with the combination of the operations of such Acquired Entity or Business with the operations of the Borrowers and their Subsidiaries, in each case being given pro forma effect that (i) have been realized or (ii) will be implemented following such transaction and are supportable and quantifiable (as determined by the chief financial officer of the Borrower Agent) and expected to be realized within the succeeding 12 months and, in each case, including, but not limited to, (w) reduction in personnel expenses, (x) reduction of costs related to administrative functions, (y) reductions of costs related to leased or owned properties and (z) reductions from the consolidation of operations and streamlining of corporate overhead) taking into account, for purposes of determining such compliance, the historical financial statements of the Acquired Entity or Business and the consolidated financial statements of the Borrowers and their Subsidiaries, assuming such Permitted Acquisition or Disposition, and all other Permitted Acquisitions or Dispositions that have been consummated during the period, and any Indebtedness or other liabilities repaid in connection therewith had been consummated and incurred or repaid at the beginning of such period (and assuming that such Indebtedness to be incurred bears interest during any portion of the applicable measurement period prior to the relevant acquisition at the interest rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination); provided that, so long as such actions are initiated during such Post-Acquisition Period or such costs are incurred during such Post-Acquisition Period, as applicable, for purposes of projecting such pro forma increase or decrease to such Acquired EBITDA or such Adjusted Consolidated EBITDA, as the case may be, it may be assumed that such cost savings will be realizable during the entirety of such Measurement Period, or such additional costs, as applicable, will be incurred during the entirety of such Measurement Period; provided, further, that any increase in Acquired EBITDA or Adjusted Consolidated EBITDA, as the case may be, as a result of such Pro Forma Adjustments shall not, together with all increases in Adjusted Consolidated EBITDA pursuant to Restructuring Charges, Business Optimization Expenses and Reserves (as defined in the Compliance Certificate) and Cost Savings and Synergies (as defined in the Compliance Certificate), exceed 20% (or such greater amount approved by the Administrative Agent) of Adjusted Consolidated EBITDA on a Pro Forma Basis calculated after giving effect to such adjustments and the adjustments resulting from Restructuring Charges, Business Optimization Expenses and Reserves and Costs Savings and Synergies in the aggregate in any Measurement Period.

Pro Forma Basis ” and “ Pro Forma Effect ” mean, with respect to compliance with any test hereunder for an applicable period of measurement, that (A) to the extent applicable, the Pro Forma Adjustment shall have been made and (B) all Specified Transactions and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement (as of the last date in the case of a balance sheet item) in such test: (a) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Transaction, (i) in the case of a Disposition of all or substantially all Equity Interests in any Subsidiary of the Borrowers or any division, product

 

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line, or facility used for operations of the Borrowers or any of their Subsidiaries which represents a contribution to Adjusted Consolidated EBITDA in excess of $500,000, shall be excluded, and (ii) in the case of a Permitted Acquisition or Investment described in the definition of “Specified Transaction”, shall be included, (b) any retirement of Indebtedness, and (c) any Indebtedness incurred or assumed by a Borrower or any of its Subsidiaries in connection therewith and if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination; provided that, without limiting the application of the Pro Forma Adjustment pursuant to (A) above, the foregoing pro forma adjustments may be applied to any such test solely to the extent that such adjustments are consistent with the definition of Adjusted Consolidated EBITDA and give effect to events (including operating expense reductions) that are (as determined by the Borrower Agent in good faith) (i) (x) directly attributable to such transaction, (y) expected to have a continuing impact on the Borrowers and their Subsidiaries and (z) factually supportable or (ii) otherwise consistent with the definition of Pro Forma Adjustment.

Properly Contested ” means with respect to any obligation of a Loan Party or any Subsidiary of a Loan Party, (a) the obligation is being properly contested in good faith by appropriate proceedings; and (b) appropriate reserves have been established in accordance with GAAP.

Purchase Agreement ” means that certain Stock Purchase Agreement dated as of December 29, 2013, between the Initial Borrower, the Target and the Sellers (as defined therein) pursuant to which the Initial Borrower will acquire all of the Equity Interests of Target owned by the Sellers on the Closing Date.

Qualified ECP Guarantor ” means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

Qualified Equity Interests ” means any Equity Interests that are not Disqualified Equity Interests.

Qualified IPO ” means a bona fide underwritten sale to the public of common stock of Holdings or any other direct or indirect parent company of the Borrowers pursuant to a registration statement (other than on Form S-8 or any other form relating to securities issuable under any benefit plan of Holdings or any other direct or indirect parent company of the Borrowers) that is declared effective by the SEC.

Qualifying Lenders ” has the meaning set forth in Section 2.19(e) .

Qualifying Loans ” has the meaning specified in Section 2.19(e) .

 

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Real Estate ” means all land, together with the buildings, structures, parking areas, and other improvements thereon, now or hereafter owned by any Loan Party, including all easements, rights-of-way, and similar rights appurtenant thereto and all leases, tenancies, and occupancies thereof.

Recipient ” means (a) Administrative Agent, (b) any Lender, (c) any L/C Issuer or (d) any other Lender Party.

Register ” has the meaning specified in Section 10.06(c) .

Related Parties ” means, with respect to any Person, such Person’s Affiliates and the directors, officers, employees, agents and controlling Persons of such Person and of such Person’s Affiliates.

Reportable Event ” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.

Request for Credit Extension ” means (a) with respect to a Borrowing, conversion or continuation of Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.

Required Lenders ” means, as of any date of determination, Lenders holding more than 50% of the sum of (a) Total Outstandings and (b) aggregate unused Commitments. The unused Commitments of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be disregarded in determining Required Lenders at any time.

Responsible Officer ” means, with respect to each Loan Party, the chief executive officer, president, chief financial officer, vice president, treasurer or controller of such Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

Restricted Payment ” means (a) any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of Holdings or any Subsidiary, (b) any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to a Loan Party’s or its Subsidiaries’ stockholders, partners or members (or the equivalent Person thereof), or (c) any payment of management, consulting, monitoring, transaction or advisory fees to the Sponsor.

Revolving Credit Commitment ” means, as to each Revolving Lender, its obligation to (a) make Revolving Loans to Borrowers pursuant to Section 2.01(a) , (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Revolving Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

 

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Revolving Credit Facility ” means the facility described in Sections 2.01(a) , 2.03 and 2.04 providing for Revolving Loans, Letters of Credit and Swing Line Loans to or for the benefit of Borrowers by the Revolving Lenders, L/C Issuer and Swing Line Lender, as the case may be, in the maximum aggregate principal amount at any time outstanding of $20,000,000 as adjusted from time to time pursuant to the terms of this Agreement.

Revolving Credit Maturity Date ” means January 31, 2019.

Revolving Credit Outstandings ” means, with respect to any Lender at any time, the sum of the Outstanding Amount of such Lender’s Revolving Loans and its L/C Exposure and Swing Line Exposure at such time.

Revolving Credit Termination Date ” means the earliest of (a) the Revolving Credit Maturity Date, (b) the date of termination of the Aggregate Revolving Credit Commitments pursuant to Section 2.07(a) , and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02 .

Revolving Lender ” means each Lender that has a Revolving Credit Commitment or, following termination of the Revolving Credit Commitments, has Revolving Loans outstanding or participations in outstanding Letters of Credit and/or Swing Line Loans.

Revolving Loan ” means a Base Rate Loan or a Eurodollar Rate Loan made to Borrowers pursuant to Section 2.01(a) or any Increase pursuant to Section 2.18 .

Revolving Loan Note ” means a promissory note made by Borrowers in favor of a Revolving Lender evidencing Revolving Loans made by such Revolving Lender, substantially in the form of Exhibit C-1 .

S&P ” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc. and any successor thereto.

SEC ” means the Securities and Exchange Commission.

Sale Leaseback ” means any transaction or series of related transactions pursuant to which the Borrowers or any of their Subsidiaries (a) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as part of such transaction, thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold, transferred or disposed.

Secured Obligations ” means (a) the Obligations and (b) all Credit Product Obligations; provided, that Secured Obligations shall not include Excluded Swap Obligations.

Security Agreement ” means the Pledge and Security Agreement dated as of the date hereof by the Loan Parties and Administrative Agent for the benefit of the Lender Parties.

 

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Security Instruments ” means, collectively or individually as the context may indicate, the Security Agreement, the Control Agreements, the Mortgages, all security agreements pertaining to Intellectual Property, any landlord lien waiver, warehouseman’s or bailee’s letter or similar agreement and all other agreements, instruments and other documents, whether now existing or hereafter in effect, pursuant to which any Loan Party or other Person shall grant or convey to Administrative Agent or the Lenders a Lien in property as security for all or any portion of the Obligations.

Seller Put Option ” means the right of the Rollover Stockholders (as defined in the Stockholders Agreement) to require Holdings to purchase from the Rollover Stockholders one third (1/3) of each class of shares of the Equity Interests in Holdings held by the Rollover Stockholders pursuant to Section 5A of the Stockholders Agreement, which obligation of Holdings to purchase such shares shall be an unsecured and non-interest bearing obligation.

Settlement Date ” has the meaning provided in Section 2.14(a) .

Sold Entity or Business ” has the meaning specified in the Compliance Certificate.

Solvent ” means, as to any Person on any date of determination, that on such date such Person (a) owns assets whose fair value (on a consolidated and going concern basis) exceeds such Person’s debts and liabilities, subordinated, contingent or otherwise; (b) owns property whose present fair salable value (on a consolidated and going concern basis) is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of such Person’s debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured in the ordinary course of business; (c) is able to pay its debts and liabilities, subordinated, contingent or otherwise, as such liabilities become absolute and matured in the ordinary course of business; and (d) is not engaged in, and is not about to engage in, business contemplated as of the applicable date of determination for which they have unreasonably small capital. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured liability.

Specified Event of Default ” means any Event of Default under Section 8.01(a) , 8.01(b) (solely with respect to Section 6.01 , 6.02(a) or 6.02(b) or Article VII ) or 8.01(f) .

Specified Transaction ” means any Investment, Disposition, incurrence or repayment of Indebtedness, Restricted Payment, or any Increase that by the terms of this Agreement requires, as a condition to consummating such transaction, compliance with the financial covenants to be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect”; provided that any increase in the Revolving Commitment, for purposes of this “Specified Transaction” definition, shall be deemed to be fully drawn.

Sponsor ” means TPG Growth II Advisors and its Controlled Investment Affiliates.

 

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Stockholders Agreement ” means that certain Stockholders Agreement dated as of January 31, 2014 by and among Holdings, TPG elf Holdings, L.P. and each other Person party thereto, as in effect on the date hereof.

Subordinated Indebtedness ” means Indebtedness of any one or more of Loan Parties owing to Subordinated Lenders (and their successors and assigns) in an original principal amount of $40,000,000 (together with interest, fees, costs and other amounts) incurred pursuant to the terms of the Subordinated Indebtedness Documents.

Subordinated Indebtedness Documents ” means the Subordinated Loan Agreement, any notes issued thereunder, any guaranties thereof, any security agreements executed in connection therewith and any other instruments and agreements evidencing the terms of or securing the Subordinated Indebtedness.

Subordinated Lenders ” means each lender from time to time party to the Subordinated Loan Agreement.

Subordinated Lender Agent ” means U.S. Bank National Association, as collateral agent for the Subordinated Lenders under the Subordinated Indebtedness Documents.

Subordinated Loan Agreement ” means the Second Lien Credit Agreement dated as of the Closing Date, among Subordinated Lender Agent, the Loan Parties and Subordinated Lenders.

Subordination Provisions ” has the meaning specified in Section 8.01(k).

Subsidiary ” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity (but not a representative office of such Person) of which a majority of the Voting Equity Interests are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of Holdings or any of its direct or indirect Subsidiaries.

Subsidiary Guarantor ” and “ Subsidiary Guarantors ” means each Subsidiary that becomes a Guarantor of all or a part of the Secured Obligations after the Closing Date pursuant to Section 6.12 of the Agreement or otherwise.

Swap Contract ” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, (b) a “swap agreement” as that term is defined in Section 101(53B)(A) of the Bankruptcy Code, and

 

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(c) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.

Swap Obligation ” means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

Swap Termination Value ” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

Swing Line ” means the revolving credit facility made available by the Swing Line Lender pursuant to Section 2.04 .

Swing Line Borrowing ” means a borrowing of a Swing Line Loan pursuant to Section 2.04 .

Swing Line Exposure ” means, at any time, the Outstanding Amount of all Swing Line Loans outstanding at such time. The Swing Line Exposure of any Lender at any time shall be its Applicable Percentage of the total Swing Line Exposure at such time.

Swing Line Lender ” means BMO in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.

Swing Line Lender’s Quoted Rate ” has the meaning specified in Section 2.04(b) .

Swing Line Loan ” has the meaning specified in Section 2.04(a) .

Swing Line Loan Notice ” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b) , which, if in writing, shall be substantially in the form of Exhibit B .

Swing Line Sublimit ” means an amount equal to $2,000,000. The Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving Credit Commitments.

Target ” means J.A. Cosmetics.

Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

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Term Borrowing ” means a borrowing consisting of simultaneous Term Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period, made by each of the Term Lenders pursuant to Section 2.01(b) .

Term Lender ” means each Lender that has a Term Loan Commitment or, following termination of the Term Loan Commitments, has Term Loans outstanding.

Term Loan ” means a Base Rate Loan or a Eurodollar Rate Loan made to Borrowers pursuant to Section 2.01(b) or any Increase under an incremental term facility pursuant to Section 2.18 .

Term Loan Commitment ” means, as to each Term Lender, its obligation to make Term Loans to Borrowers on the Closing Date pursuant to Section 2.01(b) in an aggregate original principal amount equal to the amount set forth opposite such Term Lender’s name on Schedule 2.01 .

Term Loan Facility ” means the facility described in Section 2.01(b) , providing for Term Loans to Borrowers by the Term Lenders in the original aggregate principal amount of $105,000,000.

Term Loan Maturity Date ” means January 31, 2019.

Term Loan Note ” means a promissory note made by Borrowers in favor of a Term Lender evidencing Term Loans made by such Term Lender, substantially in the form of Exhibit C-2 .

Total Outstandings ” means the Outstanding Amount of all Loans and L/C Obligations.

Total Revolving Credit Outstandings ” means, without duplication, the aggregate Outstanding Amount of all Revolving Loans, Swing Line Loans and L/C Outstandings at such time.

Trading With the Enemy Act ” has the meaning specified in Section 5.15.

Transaction ” means, individually or collectively as the context may indicate, (a) the incurrence of the Subordinated Indebtedness, (b) the Closing Date Acquisition and (c) the entering by Borrowers of the Loan Documents to which they are a party and the funding of the Revolving Credit Facility and the Term Loan Facility.

Treasury Management and Other Services ” means (a) all arrangements for the delivery of treasury management services, (b) all commercial credit card, purchase card and merchant card services; and (c) all other banking products or services, other than Letters of Credit and Swap Contracts, in each case, to or for the benefit of any Loan Party or a Subsidiary of a Loan Party which are entered into or maintained with a Lender or Affiliate of a Lender and which are not prohibited by the express terms of the Loan Documents.

 

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Type ” means, with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.

UCC ” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided that if, with respect to any financing statement or by reason of any mandatory provisions of law, the perfection or the effect of perfection or non-perfection of any security interests granted to Administrative Agent pursuant to any applicable Loan Document is governed by the Uniform Commercial Code as in effect in a jurisdiction of the United States other than New York, the term “ UCC ” shall also include the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions of this Agreement, each Loan Document and any financing statement relating to such perfection or effect of perfection or non-perfection.

United States ” and “ U.S. ” mean the United States of America.

Unreimbursed Amount ” has the meaning specified in Section 2.03(c)(i) .

Unused Fee ” has the meaning specified in Section 2.09(a) .

U.S. Person ” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

USA PATRIOT Act ” has the meaning specified in Section 5.15 .

Voting Equity Interests of any Person means capital stock or other equity interests of any class or classes (however designated) having ordinary voting power for the election of directors or other similar governing body of such Person, other than stock or other equity interests having such power only by reason of the happening of a contingency.

Weighted Average Life to Maturity ” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (b) the then outstanding principal amount of such Indebtedness; provided that for purposes of determining the Weighted Average Life to Maturity of any Indebtedness that is being modified, refinanced, refunded, renewed, replaced or extended (the “ Applicable Indebtedness ”), the effects of any prepayments made on such Applicable Indebtedness prior to the date of the applicable modification, refinancing, refunding, renewal, replacement or extension shall be disregarded.

1.02. Other Interpretive Provisions . With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without

 

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limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns (subject to any restrictions on assignment set forth herein or in any other Loan Document), (iii) the words “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “ asset ” and “ property ” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

(b) In the computation of periods of time from a specified date to a later specified date, the word “ from ” means “ from and including ;” the words “ to ” and “ until ” each mean “ to but excluding ;” and the word “ through ” means “ to and including .”

(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

(d) For purposes of determining compliance with any provision in Section 7.01 , 7.02 , 7.03 , 7.05 , 7.06 , 7.08 or 7.11(a) , in the event that an item or subject matter meets the criteria of more than one of the categories described in each of the respective Sections therein, the Borrowers may, in their commercially reasonable discretion, classify and reclassify or later divide, classify or reclassify such item or subject matter (or any portion thereof) and will only be required to include the amount and type of such item or subject matter in one or more of the applicable categories in the applicable Section.

1.03. Accounting Terms.

(a) Generally . All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.

 

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(b) Changes in GAAP . If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either Borrower Agent, Administrative Agent or the Required Lenders shall so request, Administrative Agent, the Lenders and Borrower Agent shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that , until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) Borrower Agent shall provide to Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

(c) Pro Forma Calculations . Any pro forma calculation of the financial covenants set forth in Section 7.12 hereof (i) shall be made on a Pro Forma Basis as if all Specified Transactions (including, without limitation, all Indebtedness incurred or Acquisitions or Dispositions of a Subsidiary or business segment) made prior to the time of such measurement had been incurred or made, as applicable, on the first day of the Measurement Period most recently ended for which Borrower Agent has delivered (or was required to deliver) financial statements pursuant to Sections 6.01(a) or 6.01(b) and (ii) as of any date occurring prior to June 30, 2014 shall assume that the maximum Consolidated Total Net Leverage Ratio or minimum Consolidated Interest Coverage Ratio, as applicable, permitted or required, as applicable, as of such date is the applicable covenant level for the Measurement Period ending June 30, 2014. All defined terms used in the calculation of the financial covenants set forth in Section 7.12 hereof shall be calculated on a historical pro forma basis giving effect, during any Measurement Period that includes any Permitted Acquisition or, to the extent there is a reasonable basis for Administrative Agent to verify such historical results, any other Investment constituting an Acquisition permitted to be made hereunder, to the actual historical results of the Person or line of business so acquired and which amounts shall include adjustments as contemplated by the Pro Forma Adjustments set forth herein and in the Compliance Certificate.

(d) In computing financial ratios and other financial calculations of Holdings and its Subsidiaries required to be submitted pursuant to this Agreement, all Indebtedness shall be calculated at par value irrespective of whether such Person has elected the fair value option pursuant to FASB Interpretation No. 159 – The Fair Value Option for Financial Assets and Financial Liabilities—Including an amendment of FASB Statement No. 115 (February 2007) .

1.04. Uniform Commercial Code . As used herein, the following terms are defined in accordance with the UCC in effect in the State of New York from time to time: “Chattel Paper,” “Commodity Account”, “Commodity Contract”, “Deposit Account,” “Documents,” “General Intangible,” “Instrument,” “Inventory,” and “Securities Account.”

1.05. Reserved.

 

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1.06. Foreign Currency. Transactions with Foreign Subsidiaries permitted hereunder that are denominated in Dollars shall be deemed to be the dollar equivalent of any such transactions that are actually funded in a foreign currency, if applicable, using prevailing exchange rates at the time of such transaction and without giving effect to fluctuations in exchange rates.

1.07. Times of Day . Unless otherwise specified, all references herein to times of day shall be references to Central time (daylight or standard, as applicable).

ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS

2.01. Loan Commitments.

(a) Revolving Credit Commitments . Subject to the terms and conditions set forth herein, each Lender severally agrees to make Revolving Loans to Borrowers from time to time until the Revolving Credit Termination Date, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Credit Commitment, subject to the following limitations:

(i) after giving effect to any Revolving Borrowing, the Total Revolving Credit Outstandings shall not exceed the Aggregate Revolving Credit Commitments,

(ii) the Outstanding Amount of all L/C Obligations shall not at any time exceed the Letter of Credit Sublimit, and

(iii) the Outstanding Amount of all Swing Line Loans shall not at any time exceed the Swing Line Sublimit.

Within the limits of each Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, Borrowers may borrow under this Section 2.01(a) , prepay under Section 2.06(a) , and reborrow under this Section 2.01(a) .

(b) Term Loan Commitments . Subject to the terms and conditions set forth herein, each Lender severally agrees to make a Term Loan to Borrowers on the Closing Date in an amount equal to such Lender’s Term Loan Commitment. The advance of the Term Loan shall be made simultaneously by the Lenders in accordance with their respective Applicable Percentages of the Term Loan Facility. Amounts borrowed under this Section 2.01(b) and repaid or prepaid may not be reborrowed.

2.02. Borrowings, Conversions and Continuations of Loans.

(a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon Borrower Agent’s irrevocable notice to Administrative Agent, which may be given by telephone. Each such notice must be received by Administrative Agent not later than 1:00 p.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or

 

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continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans. Each telephonic notice pursuant to this Section 2.02(a) must be confirmed promptly by delivery to Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of Borrower Agent. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c) , each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $100,000 or a whole multiple of $10,000 in excess thereof. If Borrowers fail to specify a Type of Loan in a Committed Loan Notice or if Borrowers fail to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If Borrowers request a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.

(b) Following receipt of a Committed Loan Notice for a Facility, Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage under such Facility of the applicable Loans, and if no timely notice of a conversion or continuation is provided by Borrower Agent, Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in the preceding subsection. In the case of a Term Borrowing or Revolving Borrowing, each Lender shall make the amount of its Loan available to Administrative Agent in immediately available funds at Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01) , Administrative Agent shall make all funds so received available to Borrowers in like funds as received by Administrative Agent either by (i) crediting the account of Borrowers on the books of BMO with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with written instructions provided to (and reasonably acceptable to) Administrative Agent by Borrower Agent.

(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of an Event of Default, at the election of Required Lenders, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans with an Interest Period in excess of one month.

(d) After giving effect to all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than nine (9) Interest Periods in effect in respect of the Facilities plus two (2) for any Increase.

 

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2.03. Letters of Credit.

(a) The Letter of Credit Commitment .

(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Lenders set forth in this Section 2.03 , from time to time on any Business Day during the period from the Closing Date until the earlier to occur of the Letter of Credit Expiration Date or Revolving Credit Termination Date, to issue Letters of Credit at the request of Borrower Agent for the account of any Borrower or any Subsidiary thereof and for the benefit of any Borrower or any Subsidiary thereof, and to amend Letters of Credit previously issued by it, in accordance with subsection (b) below; and (B) the Revolving Lenders severally agree to participate in Letters of Credit issued for the account of any Borrower and any drawings thereunder; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension, if as of the date of such L/C Credit Extension, (A) the aggregate Revolving Credit Outstandings of any Revolving Lender would exceed such Revolving Lender’s Revolving Credit Commitment, (B) the Total Revolving Credit Outstandings would exceed the Aggregate Revolving Credit Commitments or (C) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Each request by Borrower Agent for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by Borrower Agent that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence.

(ii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:

(A) subject to Section 2.03(b)(iii) , the expiry date of such requested Letter of Credit would occur later than the earlier of (i) the Letter of Credit Expiration Date, and (ii) twelve months after the date of issuance,

(B) any order, judgment, decree, request or directive of any Governmental Authority or arbitrator or any Law shall by its terms purport to enjoin, restrain or prohibit the L/C Issuer from issuing such Letter of Credit or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date;

(C) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer;

(D) such Letter of Credit is in an initial amount less than $10,000; or

 

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(E) any Revolving Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with Borrowers or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.

(iii) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.

(iv) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.

(v) The L/C Issuer shall act on behalf of the Revolving Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.

(vi) Notwithstanding anything contained in this Section 2.03 , at the election of Administrative Agent and the L/C Issuer, Borrower Agent may request that the L/C Issuer issue Letters of Credit with expiration dates extending beyond the earlier of the Letter of Credit Expiration Date and the Revolving Credit Termination Date (or that the L/C Issuer permits an automatic extension of any Letter of Credit to a date beyond the earlier of the Letter of Credit Expiration Date and the Revolving Credit Termination Date), in each case subject to the delivery to Administrative Agent by Borrowers of cash collateral in an amount at least equal to the Minimum Collateral Amount (to be held by the Administrative Agent as set forth in Section 2.16 hereof), and in any event, such cash collateral shall be deposited no later than 5 Business Days prior to the earlier of the Letter of Credit Expiration Date and the Revolving Credit Termination Date.

 

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(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit .

(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of Borrower Agent delivered to the L/C Issuer (with a copy to Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of Borrower Agent and, if applicable, of the applicable Borrower. Such Letter of Credit Application must be received by the L/C Issuer and Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and time as Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, each Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer the date on which the proposed Letter of Credit is to be issued (which shall be a Business Day), the expiration date of such Letter of Credit and such other matters as the L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer the Letter of Credit to be amended, the proposed date of amendment thereof (which shall be a Business Day), and such other matters as the L/C Issuer may require. Additionally, Borrower Agent shall furnish to the L/C Issuer and Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or Administrative Agent may require.

(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with Administrative Agent (by telephone or in writing) that Administrative Agent has received a copy of such Letter of Credit Application and, if not, the L/C Issuer will provide Administrative Agent with a copy thereof. Unless the L/C Issuer has received written notice from any Revolving Lender, Administrative Agent or any Borrower, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the applicable Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to such Revolving Lender’s Applicable Percentage of such Letter of Credit.

 

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(iii) If Borrower Agent so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a standby Letter of Credit that has automatic extension provisions (each, an “ Auto-Extension Letter of Credit ”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “ Non-Extension Notice Date ”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, Borrower Agent shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Revolving Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit; provided , however , that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof, or (B) it has received notice (which may be by telephone or in writing) on or before the day that is five Business Days before the Non-Extension Notice Date (1) from Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from Administrative Agent, any Revolving Lender or Borrower Agent that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.

(iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to Borrower Agent and Administrative Agent a true and complete copy of such Letter of Credit or amendment.

(c) Drawings and Reimbursements; Funding of Participations .

(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing or presentation of documents under such Letter of Credit, the L/C Issuer shall notify the Borrower Agent and Administrative Agent thereof. Not later than 1:00 p.m. on the first Business Day immediately following the date of any payment by the L/C Issuer under a Letter of Credit (each such date, an “ Honor Date ”), Borrowers shall reimburse the L/C Issuer through Administrative Agent in Dollars and in an amount equal to the amount of such drawing (together with interest thereon at the rate then applicable to Base Rate Revolving Loans). If Borrowers fail to so reimburse the L/C Issuer by such time, Administrative Agent shall promptly notify each Revolving Lender of the Honor Date, the amount of the unreimbursed drawing or payment (the “ Unreimbursed Amount ”), and the amount of such Revolving Lender’s Applicable Percentage thereof. In such event, the Borrower Agent shall be deemed to have requested a Revolving Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.03 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Revolving Credit Commitments. Any notice given by the L/C Issuer or Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

 

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(ii) Each Revolving Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available (and Administrative Agent may apply Cash Collateral provided for this purpose) to Administrative Agent for the account of the L/C Issuer, in Dollars, at Administrative Agent’s Office, an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 3:00 p.m. on the Business Day specified in such notice by Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii) , each Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Revolving Loan to the Borrower Agent in such amount. Administrative Agent shall remit the funds so received to the L/C Issuer in Dollars.

(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Borrowing of Base Rate Loans for any reason, the L/C Issuer may require the Borrowers to provide Cash Collateral in an amount not less than any such remaining Unreimbursed Amount and in the absence of any such requirement to provide Cash Collateral, Borrowers shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Revolving Lender’s payment to Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Revolving Lender in satisfaction of its participation obligation under this Section 2.03 .

(iv) Until each Revolving Lender funds its Revolving Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Revolving Lender’s Applicable Percentage of such amount shall be solely for the account of the L/C Issuer.

(v) Each Revolving Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c) , shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender may have against the L/C Issuer, any Borrower or any other Person for any reason whatsoever; (B) the failure of one or more of the applicable conditions specified in Section 4.02 to be satisfied, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing. No such making of an L/C Advance shall relieve or otherwise impair the obligation of Borrowers to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.

 

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(vi) If any Revolving Lender fails to make available to Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii) , then, without limiting the other provisions of this Agreement, the L/C Issuer shall be entitled to recover from such Revolving Lender (acting through Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing. A certificate of the L/C Issuer submitted to any Revolving Lender (through Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.

(d) Repayment of Participations . At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Lender such Revolving Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c) , if Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from Borrowers or otherwise, including proceeds of Cash Collateral applied thereto by Administrative Agent), Administrative Agent will distribute to such Revolving Lender its Applicable Percentage thereof in Dollars (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Lender’s L/C Advance was outstanding).

(e) Obligations Absolute . The obligation of Borrowers to reimburse the L/C Issuer for each drawing under each Letter of Credit, and to repay each L/C Borrowing shall be joint and several and absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other agreement or instrument relating thereto;

(ii) the existence of any claim, counterclaim, set-off, defense or other right that any Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

(iii) any draft, demand, certificate or other document or endorsement presented under or in connection with such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

 

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(iv) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit, or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or

(v) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Borrower or any Subsidiary (other than the defense of payment in full).

provided , that the foregoing shall not excuse any L/C Issuer from liability to the Borrowers to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are waived by the Borrowers to the extent permitted by applicable Law) suffered by the Borrowers that are caused by such L/C Issuer’s bad faith, gross negligence or willful misconduct when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof.

(f) Role of L/C Issuer . Each Revolving Lender and each Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Revolving Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. Each Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit. The L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument endorsing, transferring or assigning or purporting to endorse, transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

(g) Applicability of ISP and UCP . Unless otherwise expressly agreed by the L/C Issuer and Borrower Agent, when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs

and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance shall apply to each commercial Letter of Credit.

 

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(h) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer . Borrowers shall pay directly to the L/C Issuer for its own account a fronting fee with respect to each Letter of Credit, in an amount equal to 0.25% per annum, computed on the amount of such Letter of Credit, and payable quarterly in arrears on the last Business Day of each Fiscal Quarter commencing March 31, 2014 and upon the Revolving Termination Date in respect of each such Letter of Credit issued or renewed (automatic or otherwise) or amended to increase the amount thereof during such Fiscal Quarter. In addition, Borrowers shall pay directly to the L/C Issuer for its own account, in Dollars, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit issued by it as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

(i) Conflict with Issuer Documents . In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.

2.04. Swing Line Loans.

(a) The Swing Line . Subject to the terms and conditions set forth herein, the Swing Line Lender may, but shall not be obligated to, make loans in reliance upon the agreements of the other Lenders set forth in this Section 2.04 in Dollars (each such loan, a “ Swing Line Loan ”) to Borrowers from time to time on any Business Day until the Revolving Credit Termination Date in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Revolving Loans and L/C Obligations of the Revolving Lender acting as Swing Line Lender, may exceed the amount of such Revolving Lender’s Revolving Credit Commitment; provided , however , that after giving effect to any Swing Line Loan, the Revolving Credit Outstandings of any Revolving Lender shall not exceed such Revolving Lender’s Revolving Credit Commitment, and provided , further , that Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits and subject to the discretion of the Swing Line Lender to make Swing Line Loans, and subject to the other terms and conditions hereof, Borrowers may borrow under this Section 2.04 , prepay under Section 2.06 , and reborrow under this Section 2.04 . Each Swing Line Loan shall bear interest until maturity at a rate per annum equal to (i) the sum of the Base Rate plus the Applicable Margin for Base Rate Loans under the Revolving Credit Facility as from time to time in effect or (ii) the Swing Line Lender’s Quoted Rate (computed on the basis of a year of 365/6 days for the actual number of days elapsed). Immediately upon the making of a Swing Line Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Revolving Lender’s Applicable Percentage times the amount of such Swing Line Loan.

 

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(b) Borrowing Procedures . Each Swing Line Borrowing shall be made upon Borrower Agent’s irrevocable notice to the Swing Line Lender and Administrative Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and Administrative Agent not later than 3:00 p.m. (unless the Borrowers want to reserve the option to borrow at the Swing Line Lender’s Quoted Rate, in which case such notice must be received by the Swing Line Lender and Administrative Agent not later than Noon) on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000 and integral multiples of $10,000 in excess thereof, and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of Borrower Agent. Promptly after receipt by the Swing Line Lender of any Swing Line Loan Notice, the Swing Line Lender will (i) deliver notice to Borrower Agent and Administrative Agent as to whether it will or will not make such Swing Line Loan available to Borrowers and, if agreeing to make such Swing Line Loan, (ii) in its discretion quote an interest rate to Borrower Agent at which the Swing Line Lender would be willing to make such Swing Line Loan available to Borrowers (the rate so quoted being herein referred to as “ Swing Line Lender’s Quoted Rate ”) and (iii) confirm with Administrative Agent (by telephone or in writing) that Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from Administrative Agent (including at the request of any Revolving Lender) prior to 1:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the proviso to the first sentence of Section 2.04(a) , or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender may, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to Borrower Agent at its office by crediting the account of Borrower Agent on the books of the Swing Line Lender in immediately available funds.

(c) Refinancing of Swing Line Loans .

(i) The Swing Line Lender at any time in its sole and absolute discretion, may request (and no less frequently than once each week, shall require), on behalf of Borrowers (which hereby irrevocably authorize the Swing Line Lender to so request on their behalf), that each Revolving Lender make a Base Rate Revolving Loan in an amount equal to such Revolving Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.04 without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Revolving Credit Commitments and the conditions set forth in Section 4.02 . The Swing Line Lender shall furnish

 

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Borrower Agent with a copy of the applicable Committed Loan Notice promptly after delivering such notice to Administrative Agent. Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Committed Loan Notice available to Administrative Agent in immediately available funds (and Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of the Swing Line Lender at Administrative Agent’s Office not later than 2:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii) , each Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Revolving Loan to Borrowers in such amount. Administrative Agent shall remit the funds so received to the Swing Line Lender.

(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Borrowing in accordance with Section 2.04(c)(i) , the request for Base Rate Revolving Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Revolving Lenders fund its risk participation in the relevant Swing Line Loan and each Revolving Lender’s payment to Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.

(iii) If any Revolving Lender fails to make available to Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i) , the Swing Line Lender shall be entitled to recover from such Revolving Lender (acting through Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. A certificate of the Swing Line Lender submitted to any Revolving Lender (through Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.

(iv) Each Revolving Lender’s obligation to make Revolving Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender may have against the Swing Line Lender, Borrowers or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or an Event of Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however , that each Revolving Lender’s obligation to make Revolving Loans or to purchase and fund participations pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02 . No such funding of risk participations shall relieve or otherwise impair the obligation of Borrowers to repay Swing Line Loans, together with interest, as provided herein.

 

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(d) Repayment of Participations . At any time after any Revolving Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Revolving Lender its Applicable Percentage of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Lender’s risk participation was funded) in the same funds as those received by the Swing Line Lender.

(e) Interest for Account of Swing Line Lender . The Swing Line Lender shall be responsible for invoicing Borrowers for interest on the Swing Line Loans. Until each Revolving Lender funds its Base Rate Revolving Loan or risk participation pursuant to this Section 2.04 to refinance such Revolving Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the Swing Line Lender.

(f) Payments Directly to Swing Line Lender . Borrowers shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.

2.05. Repayment of Loans.

(a) Term Loan . Borrowers unconditionally promise to pay to Administrative Agent for the account of each Term Lender the aggregate principal amount of the Term Loan outstanding in equal installments of $656,250 (as such amount is reduced as a result of prepayments applied in accordance with the terms of this Agreement) each on the last day of each Fiscal Quarter, commencing with the Fiscal Quarter ending June 30, 2014, with the final scheduled installment of the Term Loan in an amount equal to the entire remaining unpaid principal balance of the Term Loan due on January 31, 2019.

The outstanding unpaid principal balance and all accrued and unpaid interest on the Term Loan shall be due and payable on the earlier of (i) the Term Loan Maturity Date, and (ii) the date of the acceleration of the Term Loan in accordance with the terms hereof.

(b) Revolving Loans . Borrowers shall repay to Administrative Agent for the account of the Revolving Lenders on the earlier of (i) the Revolving Credit Maturity Date, and (ii) the date of the acceleration of the Revolving Loans the aggregate principal amount of all Revolving Loans outstanding on such date.

(c) Swing Line Loans . The Borrowers shall repay each Swing Line Loan on the Revolving Credit Maturity Date.

 

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2.06. Prepayments .

(a)  Optional .

(i) Borrowers may, upon notice to Administrative Agent from Borrower Agent, at any time or from time to time voluntarily prepay Term Loans or Revolving Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by Administrative Agent not later than 2:00 p.m. (1) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (2) on the date of prepayment of Base Rate Loans; (B) any prepayment of Eurodollar Rate Loans shall be in a principal amount of at least $100,000; and (C) any prepayment of Base Rate Loans shall be in a principal amount of at least $50,000 or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, how such prepayment shall be applied and the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage in respect of the relevant Facility). If such notice is given by Borrower Agent, Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that such notice may state that the prepayment is conditioned upon the effectiveness of other credit facilities, acquisitions or dispositions, in which case such notice may be revoked by Borrower Agent (by notice to Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05 . Each prepayment of the outstanding Term Loans pursuant to this Section 2.06(a) shall be applied as specified by the Borrower Agent in the applicable notice of prepayment and, in the absence of such direction, in the manner set forth in Section 2.06(b)(iv) . Subject to Section 2.17 , such prepayments shall be paid to the Lenders in accordance with their respective Applicable Percentage in respect of each of the relevant Facilities.

(ii) Borrowers may, upon notice to the Swing Line Lender (with a copy to Administrative Agent) from Borrower Agent, at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty (without a reduction of the Swing Line Sublimit); provided that (A) such notice must be received by the Swing Line Lender and Administrative Agent not later than 3:00 p.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal amount of $10,000 or, if less, the entire principal amount thereof outstanding. Each such notice shall specify the date and amount of such prepayment. If such notice is given by Borrower Agent, Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.

 

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(b) Mandatory .

(i) Excess Cash Flow . Within ten Business Days after financial statements have been delivered or should have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered or should have been delivered pursuant to Section 6.02(a) commencing with the Fiscal Year ending December 31, 2014 (it being agreed and understood that Excess Cash Flow for the Fiscal Year ending December 31, 2014 shall be measured only for the period commencing on the Closing Date and ending on December 31, 2014), Borrowers shall prepay an aggregate principal amount of Loans equal to (x) 50% of Excess Cash Flow for the Fiscal Year covered by such financial statements; provided that (1) if the Consolidated Total Net Leverage Ratio (determined as of the last day of such Fiscal Year by reference to the Compliance Certificate delivered together with the financial statements delivered pursuant to Section 6.01(a) for such Fiscal Year) shall be less than 4.00 to 1.00 but greater than or equal to 3.50 to 1.00, Borrowers shall prepay an aggregate principal amount of Loans equal to 25% of Excess Cash Flow for such Fiscal Year and (2) if the Consolidated Total Net Leverage Ratio (determined as of the last day of such Fiscal Year by reference to the Compliance Certificate delivered together with the financial statements delivered pursuant to Section 6.01(a) for such Fiscal Year) shall be less than 3.50 to 1.00, Borrowers shall prepay an aggregate principal amount of Loans equal to 0% of Excess Cash Flow for such Fiscal Year, less (y) the aggregate amount of voluntary prepayments of the Term Loans (other than Discounted Voluntary Prepayments) and voluntary prepayments of the Revolving Loans (to the extent accompanied by a permanent reduction in the Revolving Credit Commitment) made (i) during such Fiscal Year (other than any voluntary prepayments made during the first 120 days of such Fiscal Year to the extent such voluntary prepayments were credited in the calculation of the Excess Cash Flow prepayment for the prior Fiscal Year) or (ii) within 120 days after the end of the Fiscal Year for which such Excess Cash Flow is being calculated that are applied in the manner set forth in Section 2.06(b)(iv) , in each case, to the extent not financed with proceeds from the incurrence of long-term Indebtedness (other than Revolving Loans).

(ii) Asset Dispositions . If any Loan Party or any of its Subsidiaries Disposes of, or suffers an Event of Loss of, any property (other than any Disposition of any property permitted by Sections 7.05(a) , (b)(i), (c), (e), (f), (g), (h), (i), (j), (k) or (l)) which results in Net Cash Proceeds in connection with such Disposition or Event of Loss in excess of $1,000,000 and, together with all other Dispositions and Events of Loss occurring during the Fiscal Year in excess of $2,000,000, Borrowers shall prepay an aggregate principal amount of Loans equal to such excess Net Cash Proceeds promptly after receipt thereof by such Person; provided that so long as no Event of Default shall have occurred and be continuing (or, to the extent the only Event of Default that has occurred and is continuing is an Event of Default arising under Section 8.01(a) , so long as the Borrowers have paid in full the unpaid amount giving rise to such Event of Default with such Net Cash Proceeds (such payment, the “ Monetary Default

 

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Payment ”)), the recipient of any such Net Cash Proceeds realized in a Disposition or Event of Loss described in this Section 2.06(b)(ii) may (x) reinvest the amount of any such Net Cash Proceeds (or, to the extent such Net Cash Proceeds were used to pay the Monetary Default Payment, the remaining amount of such Net Cash Proceeds) within three hundred sixty-five (365) days of the receipt thereof, in replacement assets of a kind then used or usable in the business of such recipient or (y) enter into a binding commitment thereof within said three hundred sixty-five (365) day period and actually reinvests such Net Cash Proceeds within one hundred eighty (180) days after the last day of said three hundred sixty-five (365) day period; provided that if the recipient does not intend to fully reinvest such Net Cash Proceeds, or if the time period set forth in this sentence expires without such recipient having reinvested such Net Cash Proceeds, Borrowers shall prepay the Loans in an amount equal to such Net Cash Proceeds (to the extent not reinvested or intended to be reinvested within such time period).

(iii) Debt Incurrence . Upon the incurrence or issuance by any Loan Party or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.01) , Borrowers shall prepay an aggregate principal amount of Loans equal to all Net Cash Proceeds received therefrom promptly after receipt thereof by such Loan Party or such Subsidiary.

(iv) Application of Mandatory Prepayments .

(A) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.06(b) shall be applied, first , to prepay the next four (4) principal installments of the Term Loans (pro rata between the Term Loans (including any Increase of the Term Loan only if the Lenders providing such Increase so require)) in direct order of maturity, then pro rata to the remaining principal installments (excluding the principal installment payable at maturity) of the Term Loans and then to the principal installment payable at maturity and, second , to the Revolving Credit Facility (without a corresponding permanent reduction in the Revolving Credit Commitment) in the manner set forth in clause (B) of this Section 2.06(b)(vii) . Subject to Section 2.17 , such prepayments shall be paid to the Lenders in accordance with their respective Applicable Percentage in respect of the relevant Facilities.

(B) Except as otherwise provided in Section 2.17 , prepayments of the Revolving Credit Facility made pursuant to this Section 2.06(b) , first , shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second , shall be applied ratably to the outstanding Revolving Loans, third , shall be used to Cash Collateralize the remaining L/C Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from Borrowers or any other Loan Party or any Defaulting Lender that has provided Cash Collateral) to reimburse the L/C Issuer or the Revolving Lenders, as applicable.

 

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(v) Notwithstanding the foregoing, any Lender may elect to decline, by notice to Administrative Agent and the Borrower Agent on or prior to the date of any prepayment of Term Loans required or permitted to be made by the Borrowers for the account of such Lender pursuant to Section 2.06(b)(i) or 2.06(b)(ii) , all or a portion of such prepayment, in which case such prepayment (or portion thereof) shall be retained by the Borrowers.

(vi) Notwithstanding the foregoing, to the extent any or all of the Net Cash Proceeds of any Disposition by, or Event of Loss of, a Foreign Subsidiary otherwise giving rise to a prepayment pursuant to Section 2.06(b)(ii) or Excess Cash Flow attributable to Foreign Subsidiaries, is prohibited, restricted or delayed by any applicable local requirements of Law (including but not limited to financial assistance, corporate benefit restrictions and restrictions on upstreaming of cash intra-group and the fiduciary and statutory duties of the directors of the relevant Foreign Subsidiaries) from being repatriated or passed on or distributed to or used for the benefit of any of the Borrowers or any Domestic Subsidiary (each, a “ Repatriation ”; with “ Repatriated ” having a correlative meaning), or if the Borrowers have determined in good faith that Repatriation of any such amount would reasonably be expected to have adverse tax consequences with respect to Holdings or its Subsidiaries (including, without limitation, a deemed dividend pursuant to Section 956 of the Code), the receipt or realization of the portion of such Net Cash Proceeds or Excess Cash Flow so affected (solely in the case of Excess Cash Flow, to the extent not exceeding 20% of the aggregate Excess Cash Flow payment otherwise required to be made pursuant to Section 2.06(b)(i) without giving effect to this clause (vi)), will not be taken into account in measuring the Borrowers’ obligation to prepay Term Loans or Revolving Loans at the times provided in this Section 2.06 ; provided, that if any such Repatriation ceases to be prohibited, restricted or delayed by applicable local requirements of Law at any time during the one (1) year period immediately following the date on which the applicable mandatory prepayment pursuant to Section 2.06 was required to be made, the Loan Parties shall reasonably promptly Repatriate, or cause to be Repatriated, an amount equal to that portion of the applicable mandatory prepayment amount previously not taken into account in measuring the Borrowers’ obligation to make such mandatory prepayment under Section 2.06 (such amount, the “ Excluded Prepayment Amount ”), and the Loan Parties shall reasonably promptly pay the Excluded Prepayment Amount to the Lenders, which payment shall be applied in accordance with Section 2.06(b)(iv) . For the avoidance of doubt, the non-application of any such portion of the mandatory prepayment amount pursuant to this Section 2.06(b)(vi) shall not constitute a Default or an Event of Default and such portion of the mandatory prepayment amount shall be available for working capital purposes of such Foreign Subsidiaries.

 

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2.07. Termination or Reduction of Commitments.

(a) Revolving Credit Commitment . Borrowers may, upon revocable notice which may be conditioned to Administrative Agent from Borrower Agent, from time to time permanently reduce the Aggregate Revolving Credit Commitments; provided that (i) any such notice shall be received by Administrative Agent not later than 2:00 p.m. three Business Days prior to the date of reduction, (ii) any such reduction shall be in an aggregate amount of $500,000 or any whole multiple of $100,000 in excess thereof, (iii) Borrowers shall not reduce the Aggregate Revolving Credit Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Credit Outstandings would exceed the Aggregate Revolving Credit Commitments, and (iv) if, after giving effect to any reduction, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate Revolving Credit Commitments, such Sublimit shall be automatically reduced by the amount of such excess. Administrative Agent will promptly notify the Lenders of any such notice of reduction of the Aggregate Revolving Credit Commitments. Any reduction of the Aggregate Revolving Credit Commitments shall be applied to the Revolving Credit Commitment of each Revolving Lender according to its Applicable Percentage.

(b) Term Loan Commitment . The aggregate Term Loan Commitments shall be automatically and permanently reduced to zero on the date of the Term Borrowing (after giving effect thereto).

2.08. Interest.

(a) Subject to the provisions of Section 2.10 and subsection (b) below, (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Margin; (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Margin; and (iii) subject to the Swing Line Lender and Borrower Agent agreeing that interest shall be paid at the Swing Line Lender’s Quoted Rate, each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Margin for Revolving Loans.

(b) (i) If any amount payable by Borrowers under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

(ii) If any Event of Default exists, then upon the written request of the Required Lenders (which Administrative Agent shall notify Borrowers thereof) (or automatically if an Event of Default under Section 8.01(a) or 8.01(f) exists), all outstanding Loan Obligations shall bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate.

 

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(iii) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

2.09. Fees.

(a) Unused Fee . Borrowers shall pay to Administrative Agent for the account of each Revolving Lender in accordance with its Applicable Percentage, a fee (the “ Unused Fee ”) equal to 0.50% times the average daily amount by which the Aggregate Revolving Credit Commitments (other than those of Defaulting Lenders) exceeds the sum of (i) the Outstanding Amount of Revolving Loans (other than those of Defaulting Lenders) and (ii) the Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section 2.17 . The Unused Fee shall accrue at all times until the Revolving Credit Termination Date, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each Fiscal Quarter, commencing March 31, 2014, and on the Revolving Credit Termination Date.

(b) Letter of Credit Fees . Subject to the provisions of the last sentence of this subsection (b), Borrowers shall pay to Administrative Agent for the account of each Revolving Lender in accordance with its Applicable Percentage, (i) a Letter of Credit fee ( “Letter of Credit Fee” ) for each Letter of Credit equal to the Applicable Margin for Eurodollar Rate Loans that are Revolving Loans times the daily maximum amount available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit); provided , however , any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the L/C Issuer shall be payable, to the maximum extent permitted by applicable Law, to the other Revolving Lenders in accordance with the upward adjustments in their respective Applicable Percentages allocable to such Letter of Credit pursuant to Section 2.17(a)(iv) , with the balance of such fee, if any, payable to the L/C Issuer for its own account. The Letter of Credit Fee with respect to each Letter of Credit shall accrue at all times until the Revolving Credit Termination Date and shall be due and payable quarterly in arrears on the last Business Day of each Fiscal Quarter, commencing March 31, 2014, and on the Revolving Credit Termination Date. If there is any change in the Applicable Margin for Eurodollar Rate Loans that are Revolving Loans during any quarter, the daily maximum amount of each Letter of Credit shall be computed and multiplied by the Applicable Margin for Eurodollar Rate Loans that are Revolving Loans separately for each period during such quarter that such Applicable Margin was in effect. At all times that the Default Rate shall be applicable to any Loans pursuant to Section 2.08(b) , the Letter of Credit Fees payable under this subsection (i) shall accrue and be payable at the Default Rate.

 

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(c) Fee Letter . Borrowers agree to pay the fees payable in the amounts and at the times set forth in the Fee Letter.

(d) Generally . All fees payable hereunder shall be paid on the dates due, in immediately available funds, to (i) Administrative Agent for distribution, in the case of commitment fees and participation fees, to the Revolving Lenders, and otherwise, to the Lenders entitled thereto or (ii) the L/C Issuer, in the case of fees payable to it. Fees paid shall not be refundable under any circumstances.

2.10. Computation of Interest and Fees . All computations of interest for Base Rate Loans shall be made on the basis of the actual days elapsed over a year of 365 or 366 days, as the case may be. All other computations of fees and interest shall be made on the basis of the actual days elapsed over a 360-day year (i.e., the 365/360 day method of interest computation, which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a) , bear interest for one day. Each determination by Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

2.11. Evidence of Debt.

(a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by Administrative Agent (the “ Loan Account ”) in the Register; provided that any failure to so record or any error in doing so shall not limit or otherwise affect the obligation of Borrowers hereunder to pay any amount owing with respect to the Obligations. The accounts or records maintained by Administrative Agent (and any Lender) shall be conclusive absent manifest error; provided that in the event of any conflict between the accounts and records maintained by any Lender and the Register, the Register shall control in the absence of manifest error. Upon the request of any Lender made through Administrative Agent, Borrowers shall execute and deliver to such Lender (through Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records.

(b) In addition to the accounts and records referred to in (a) above, each Lender and Administrative Agent shall maintain in accordance with its usual practice accounts or records and, in the case of the Administrative Agent, entries in the Register, evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event of any conflict between the accounts and records maintained by Administrative Agent and the accounts and records of any Lender in respect of such matters, the Register shall control in the absence of manifest error.

 

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2.12. Payments Generally; Administrative Agent’s Clawback.

(a) General . All payments to be made by Borrowers shall be made without deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by Borrowers hereunder shall be made to Administrative Agent, for the account of the respective Lenders to which such payment is owed, at Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. Subject to Section 2.14 , Administrative Agent will promptly distribute to each Lender its Applicable Percentage in respect of the relevant Facility (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected when computing interest or fees, as the case may be.

(b) Presumptions by Administrative Agent .

(i) Funding by Lenders . Unless Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to Administrative Agent such Lender’s share of such Borrowing, Administrative Agent may assume that such Lender has made such share available in accordance with Section 2.02 and may, in reliance upon such assumption, make available to Borrowers a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to Administrative Agent, then the applicable Lender and Borrowers severally agree to pay to Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to Borrowers to but excluding the date of payment to Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by Borrowers, the interest rate applicable to Base Rate Loans. If Borrowers and such Lender shall pay such interest to Administrative Agent for the same or an overlapping period, Administrative Agent shall promptly remit to Borrowers the amount of such interest paid by Borrowers for such period. If such Lender pays its share of the applicable Borrowing to Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by Borrowers shall be without prejudice to any claim Borrowers may have against a Lender that shall have failed to make such payment to Administrative Agent.

(ii) Payments by Borrowers . Unless Administrative Agent shall have received notice from Borrower Agent prior to the time at which any payment is due to Administrative Agent for the account of the Lenders or the L/C Issuer hereunder that Borrowers will not make such payment, Administrative Agent may

 

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assume that Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if Borrowers have not in fact made such payment, then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to Administrative Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation.

A notice of Administrative Agent to any Lender or any Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.

(c) Failure to Satisfy Conditions Precedent . If any Lender makes available to Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II , and such funds are not made available to Borrowers by Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

(d) Obligations of Lenders Several . The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c) .

(e) Insufficient Funds . If at any time insufficient funds are received by and available to Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder, such funds shall be applied as provided in Section 8.03 .

2.13. Sharing of Payments by Lenders . Except as otherwise provided herein, if any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any of the Facilities due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (b) Obligations in respect of any of the Facilities owing (but not due and payable) to such

 

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Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time, then, in each case under clauses (a) and (b) above, the Lender receiving such greater proportion shall (A) notify Administrative Agent of such fact, and (B) purchase (for cash at face value) participations in the Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of Obligations in respect of the Facilities then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be, provided that:

(i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

(ii) the provisions of this Section shall not be construed to apply to (A) any payment made by or on behalf of any Loan Party pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender or payments under Section 2.19 ), (B) the application of Cash Collateral provided for in Section 2.16 , or (C) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant.

2.14. Settlement Among Lenders .

(a) The amount of each Revolving Lender’s Applicable Percentage of outstanding Revolving Loans shall be computed on each Business Day (or less frequently in Administrative Agent’s discretion but no less frequently than weekly) and shall be adjusted upward or downward based on all Revolving Loans and repayments of Revolving Loans received by Administrative Agent as of 3:00 p.m. on such Business Day (or the first Business Day (such date, the “ Settlement Date ”) following the end of the period specified by Administrative Agent).

(b) Each Business Day, or on each Settlement Date, as applicable, (i) Administrative Agent shall transfer to each Revolving Lender its Applicable Percentage of repayments, and (ii) each Revolving Lender shall transfer to Administrative Agent (as provided below) or Administrative Agent shall transfer to each Revolving Lender, such amounts as are necessary to insure that, after giving effect to all such transfers, the Revolving Credit Outstandings of each Revolving Lender shall be equal to such Revolving Lender’s Applicable Percentage of all the Total Revolving Credit Outstandings as of such Business Day or Settlement Date. If the applicable Revolving

 

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Lender is notified of a transfer to be made to Administrative Agent prior to 1:00 p.m. on a Business Day, such transfer shall be made in immediately available funds no later than 3:00 p.m. that day; and, if received after 1:00 p.m., then no later than 3:00 p.m. on the next Business Day. The obligation of each Revolving Lender to transfer such funds is irrevocable, unconditional and without recourse to or warranty by Administrative Agent. If and to the extent any Revolving Lender shall not have so made its transfer to Administrative Agent, such Lender agrees to pay to Administrative Agent, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to Administrative Agent, equal to the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation plus any reasonable administrative, processing, or similar fees customarily charged by Administrative Agent in connection with the foregoing.

2.15. Nature and Extent of Each Borrower’s Liability.

(a) Joint and Several Liability . Each Borrower agrees that it is jointly and severally liable for all Obligations and all agreements under the Loan Documents. As such, each Borrower agrees that it is a guarantor of each other Borrower’s obligations and liabilities hereunder and under the other Loan Documents.

(b) Direct Liability . Nothing contained in this Section 2.15 or Article XI shall limit the liability of any Borrower to pay Loans made directly or indirectly to that Borrower (including Loans advanced to any other Borrower and then re-loaned or otherwise transferred to, or for the benefit of, such Borrower), L/C Obligations relating to Letters of Credit issued to support such Borrower’s business, and all accrued interest, fees, expenses and other related Obligations with respect thereto, for which such Borrower shall be primarily liable for all purposes hereunder.

(c) Joint Enterprise . Each Borrower has requested that Administrative Agent and Lenders make this credit facility available to Borrowers on a combined basis, in order to finance Borrowers’ business most efficiently and economically. Borrowers’ business is a mutual and collective enterprise, and the successful operation of each Borrower is dependent upon the successful performance of the integrated group. Borrowers believe that consolidation of their credit facility will enhance the borrowing power of each Borrower and ease administration of the facility, all to their mutual advantage. Borrowers acknowledge that Administrative Agent’s and Lenders’ willingness to extend credit and to administer the Collateral on a combined basis hereunder is done solely as an accommodation to Borrowers and at Borrowers’ request.

(d) Borrower Agent .

(i) Each Borrower hereby irrevocably appoints and designates the Initial Borrower, and from and after the consummation of the Closing Date Acquisition and the joinder thereof pursuant to a Joinder Agreement, J.A. Cosmetics (“ Borrower Agent ”) as its representative and agent and attorney-in-fact for all purposes under the Loan Documents, including requests for Credit

 

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Extensions, designation of interest rates, delivery or receipt of communications, preparation and delivery of financial reports, receipt and payment of Obligations, requests for waivers, amendments or other accommodations, actions under the Loan Documents (including in respect of compliance with covenants), and all other dealings with Administrative Agent, L/C Issuers or any Lender.

(ii) Each other Loan Party hereby irrevocably appoints and designates Borrower Agent as its agent and attorney-in-fact to receive statements on its account and all other notices from Administrative Agent and Lenders with respect to the Obligations or otherwise under or in connection with this Agreement and the other Loan Documents.

(iii) Any notice, election, representation, warranty, agreement or undertaking by or on behalf of any Loan Party by Borrower Agent shall be deemed for all purposes to have been made by such Loan Party and shall be binding upon and enforceable against such Loan Party to the same extent as if made directly by such Loan Party.

(iv) Borrower Agent hereby accepts the appointment by each Loan Party hereunder to act as its agent and attorney-in-fact.

(v) Administrative Agent and Lenders shall be entitled to rely upon, and shall be fully protected in relying upon, any notice or communication (including any notice of borrowing) delivered by Borrower Agent on behalf of any Borrower or other Loan Party. Administrative Agent and Lenders may give any notice or communication with a Borrower or other Loan Party hereunder to Borrower Agent on behalf of such Borrower or Loan Party. Each of Administrative Agent, L/C Issuers and Lenders shall have the right, in its discretion, to deal exclusively with Borrower Agent for any or all purposes under the Loan Documents. Each Borrower and each other Loan Party agrees that any notice, election, communication, representation, agreement or undertaking made on its behalf by Borrower Agent shall be binding upon and enforceable against it.

2.16. Cash Collateral.

(a) Certain Credit Support Events . If (i) the L/C Issuer has honored any full or partial drawing request under any Letter of Credit upon presentation and such drawing has resulted in an L/C Borrowing, (ii) as of the date that is 5 Business Days prior to the earlier of the Letter of Credit Expiration Date and the Revolving Credit Termination Date, any L/C Obligation for any reason remains outstanding, or (iii) there shall exist a Defaulting Lender, Borrowers shall immediately (in the case of clause (iii) above) or within one Business Day (in all other cases) following any request by Administrative Agent or the L/C Issuer, provide Cash Collateral in an amount not less than the Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iii) above, after giving effect to Section 2.17(a)(iv) and any Cash Collateral provided by the Defaulting Lender).

 

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(b) Grant of Security Interest . Borrowers, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) Administrative Agent, for the benefit of Administrative Agent, the L/C Issuer and the Lenders, and agrees to maintain, a first priority security interest in all such cash, Deposit Accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.16(c) . If at any time Administrative Agent determines that Cash Collateral is less than the Minimum Collateral Amount or otherwise deficient for any reason, Borrowers will, promptly upon written demand by Administrative Agent, pay or provide to Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in one or more blocked, non-interest bearing Deposit Accounts at BMO.

(c) Application . Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided in respect of Letters of Credit or Swing Line Loans, shall be held and applied to the satisfaction of the specific L/C Obligations, Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral provided by a Revolving Lender that is a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.

(d) Release . Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Revolving Lender (or, as appropriate, its assignee following compliance with Section 10.06(b)(v) ) or (ii) the determination by Administrative Agent and the L/C Issuer that there exists excess Cash Collateral.

2.17. Defaulting Lenders.

(a) Adjustments . Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:

(i)  Waivers and Amendments . Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders,” or any comparable definition and Section 10.01 .

(ii) Reallocation of Payments . Any payment of principal, interest, fees or other amounts received by Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by Administrative Agent from a Defaulting Lender pursuant to Section 10.08 shall be applied at such time or times as may be determined by Administrative Agent, provided that if (x) such payment is a

 

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payment of the principal amount of any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders under the applicable Facility on a pro rata basis (and ratably among all applicable Facilities computed in accordance with the Defaulting Lenders’ respective funding deficiencies) prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender under the applicable Facility until such time as all Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.17(a)(iv) . It is agreed and understood that Administrative Agent shall be entitled to set off any funding shortfall of such Defaulting Lender against such Defaulting Lender’s respective share of any payments received from Borrowers. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.16(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(iii) Certain Fees . No Defaulting Lender shall be entitled to receive any Unused Fee payable pursuant to Section 2.09(a) for any period during which that Lender is a Defaulting Lender (and Borrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender). Each Defaulting Lender which is a Revolving Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.16 .

(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure . All or any part of such Defaulting Lender’s participation in L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Lenders which are Revolving Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Revolving Credit Commitment) but only to the extent that (x) the conditions set forth in Section 4.02 are satisfied at the time of such reallocation (and, unless Borrower Agent shall have otherwise notified Administrative Agent at such time, Borrowers shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Revolving Credit Outstandings of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Credit Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

 

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(b) Defaulting Lender Cure . If Borrower Agent, Administrative Agent and, in the case that a Defaulting Lender is a Revolving Lender, the Swing Line Lender and the L/C Issuer, agree in writing that a Lender is no longer a Defaulting Lender, Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Revolving Loans of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Revolving Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.17(a)(iv)) , whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrowers while that Lender was a Defaulting Lender; and provided , further , that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

2.18. Increase in Revolving Credit Commitments or Term Loan Facility.

(a) Request for Increase . Upon notice to Administrative Agent (who shall promptly notify the applicable Revolving Lenders and Term Lenders), Borrower Agent may from time to time prior to the Maturity Date request to add one or more incremental term facilities and/or request an increase in the Aggregate Revolving Credit Commitments or Term Loan Facility by an amount (for all such requests) not exceeding $20,000,000 in the aggregate, all of which may be used to increase the Term Loan Facility or add one or more incremental term facilities and not more than $10,000,000 of which may be used to increase the Aggregate Revolving Credit Commitments (each such increase or addition of incremental facilities, an “ Increase ”); provided that any such request for an Increase shall be in a minimum amount of $5,000,000 in the aggregate (or $2,500,000 with respect to an Increase in the Aggregate Revolving Credit Commitments) or, if less, the entire unutilized amount of the maximum amount of all such requests set forth above. Each notice from the Borrower Agent pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Increase, as applicable.

(b) Reserved .

(c) Notification by Administrative Agent; Additional Lenders . Each Increase may be made by any existing Lender or by any other Person reasonably acceptable to Borrowers, subject to the approval of Administrative Agent to the extent such approval would be required for an assignment to such Person pursuant to Section 10.06 and, solely in the case of any Increase in respect of the Revolving Credit Facility, subject to the approval of Administrative Agent, the Swing Line Lender and each L/C Issuer (which

 

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approval shall not be unreasonably withheld) to the extent such approval would be required for an assignment under the Revolving Credit Facility to such Person pursuant to Section 10.06 , who becomes a Lender pursuant to a joinder agreement in form and substance satisfactory to Administrative Agent and its counsel (each such assignee issuing a commitment, executing and delivering such joinder agreement and becoming a Lender, an “ Additional Lender ”). No existing Lender shall have any obligation to participate in any Increase.

(d) Effective Date and Allocations . If the Aggregate Revolving Credit Commitments or the Term Loan Facility are increased or an incremental term facility is provided in accordance with this Section 2.18 , Administrative Agent and Borrower Agent shall determine the effective date (the “ Increase Effective Date ”) and the final allocation of such Increase or incremental term facility. Administrative Agent shall promptly notify Borrower Agent and the Revolving Lenders or Term Lenders, as applicable, of the final allocation of such Increase or incremental term facility and the Increase Effective Date.

(e) Conditions to Effectiveness of Increase . As a condition precedent to each Increase, (i) Borrower Agent shall have delivered to Administrative Agent a certificate dated as of the Increase Effective Date signed by a Responsible Officer of Borrower Agent (A) certifying and attaching the resolutions adopted by the Loan Parties approving or consenting to such Increase, and (B) certifying that, no Default or Event of Default would immediately exist after giving effect to the Increase, or, solely with respect to an Increase in the Term Loan Facility or an incremental term facility, as applicable, the proceeds of which are intended to and shall be used to finance substantially contemporaneously a Permitted Acquisition or other permitted Investment, (1) no Event of Default under Section 8.01(a) or 8.01(f) has occurred and is continuing or would result after giving effect to such Increase and (2) no Specified Event of Default exists as of the date on which the applicable acquisition agreement for such Permitted Acquisition or other permitted Investment is executed and becomes effective, (ii) Borrowers, Administrative Agent, and any Additional Lender shall have executed and delivered a joinder to the Loan Documents in such form as Administrative Agent shall reasonably require; (iii) Borrowers shall have paid such fees and other compensation to the Lenders increasing their Revolving Credit Commitments, the Lenders increasing their Term Loan Commitments or providing any incremental term loan and the Additional Lenders, as Borrowers, such Lenders and such Additional Lenders shall agree; (iv) Borrower Agent shall have delivered to Administrative Agent a certificate dated as of the Increase Effective Date evidencing that (A) on a Pro Forma Basis after giving effect to the applicable Increase, and, in the case of an Increase of the Aggregate Revolving Credit Commitments, assuming such incremental Revolving Loans are fully drawn on the Increase Effective Date, any permitted acquisitions, dispositions or prepayments of indebtedness and other appropriate pro forma adjustments to be mutually agreed by Administrative Agent and Borrowers, the Consolidated Total Net Leverage Ratio of Holdings and its Subsidiaries as of the end of the Fiscal Quarter most recently ended as to which financial statements were required to be delivered pursuant to this Agreement was equal to or less than the lesser of (1) the maximum Consolidated Total Net Leverage Ratio permitted pursuant to Section 7.12(a) for the Fiscal Quarter most recently ended as to which financial statements were required to be delivered pursuant to this Agreement

 

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and (2) 5.05 to 1.00 and (B) on a Pro Forma Basis after giving effect to the applicable Increase and any permitted acquisitions, dispositions or prepayments of indebtedness and other appropriate pro forma adjustments to be mutually agreed by Administrative Agent and Borrowers, the Consolidated Senior Net Leverage Ratio of Holdings and its Subsidiaries as of the end of the Fiscal Quarter most recently ended as to which financial statements were required to be delivered pursuant to this Agreement was equal to or less than 3.65 to 1.00; (v) Borrowers, the Lenders increasing their Commitments and each Additional Lender shall have delivered such other instruments, documents and agreements as Administrative Agent may reasonably have requested to effectuate such Increase; (vi) each of the conditions precedent set forth in Section 4.02 shall have been satisfied or, solely with respect to an Increase in the Term Loan Facility or an incremental term facility, as applicable, the proceeds of which are intended to and shall be used to finance substantially contemporaneously a Permitted Acquisition or other permitted Investment (A) (1) no Event of Default under Section 8.01(a) or 8.01(f) has occurred and is continuing or would result after giving effect to such Increase and (2) no Specified Event of Default exists as of the date on which the applicable acquisition agreement for such Permitted Acquisition or other permitted Investment is executed and becomes effective and (B) the Specified Acquisition Agreement Representations and Specified Representations (in each case, conformed as applicable for such Permitted Acquisition or other permitted Investment) shall be true and correct in all material respects with respect to such Specified Representations (except that any such Specified Representations qualified by materiality or material adverse effect shall be true and correct in all respects) and true and correct in all respects with respect to such Specified Acquisition Agreement Representations; and (vii) solely to the extent all or any portion of an Increase to the Term Loan or an incremental term loan is provided by Sponsor or any of its Affiliates (other than Holdings and its Subsidiaries and any Debt Fund Affiliates), after giving effect to such Increase or incremental term loan, as applicable, (x) the aggregate principal amount of the Term Loans and incremental term loans held by the Sponsor and its Affiliates (other than Holdings and its Subsidiaries and any Debt Fund Affiliates) shall not at any time, in the aggregate for all such Persons, exceed 25% of the aggregate principal amount of the Term Loans and incremental term loans then outstanding, and (y) the Sponsor and its Affiliates (other than Holdings and its Subsidiaries and any Debt Fund Affiliates) holding the Term Loans and incremental term loans shall not constitute 50% or more of the aggregate number of Lenders holding a portion of the Term Loans and incremental term loans at the time of such Increase or incremental term loan, as applicable. In the case of an Increase in respect of the Revolving Credit Facility, the Revolving Loans outstanding on the Increase Effective Date shall be reallocated and adjusted between and among the applicable Lenders, and Borrowers shall pay any additional amounts required pursuant to Section 3.05 resulting therefrom, to the extent necessary to keep the outstanding applicable Revolving Loans ratable among the applicable Lenders with any revised Applicable Percentages, as applicable, arising from any nonratable increase in the applicable Revolving Loans under this Section 2.18 .

(f) Interest Margins . Borrower Agent shall have reached agreement with the Lenders (or Additional Lenders) agreeing to the respective Increase with respect to the interest margins applicable to Revolving Loans, Term Loans or incremental term loans to be made pursuant such Increase (which interest margins may be (A) with respect to

 

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Revolving Loans made pursuant to the increased Revolving Credit Commitments, higher than or equal to the interest margins applicable to Revolving Loans set forth in this Agreement immediately prior to the Increase Effective Date, and (B) with respect to any Increase of the Term Loans or any Increase pursuant to which any incremental term facilities are provided, higher than, equal to, or lower than the interest margins applicable to the applicable Term Loan set forth in this Agreement immediately prior to the Increase Effective Date, as applicable) and shall have communicated the amount of such interest margins to Administrative Agent. The Administrative Agent and Borrowers (with the consent of the Lenders or Additional Lenders providing such Increase) may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate to effectuate the provisions of this Section 2.18 (including any amendment necessary to effectuate the interest margins for the Revolving Loans, Term Loans or incremental term loans to be made pursuant to such Increase). Anything to the contrary contained herein notwithstanding, (1) as of the date of the incurrence of such Increase, the Weighted Average Life to Maturity of such incremental term facility shall not be shorter than that of the original existing Term Loan (without giving effect to any prepayments thereof) and (2) the All-In Yield applicable to any Increase will be determined by the Borrowers and the lenders providing such Increase but in the event that the All-In Yield applicable to such Increase exceeds the All-In Yield of the original existing Term Loans and/or Revolving Loans, as applicable, by more than 50 basis points then, (x) to the extent the Eurodollar Base Rate or Base Rate floor applicable to such Increase exceeds the applicable Existing Floor and an increase in the applicable Existing Floor would cause an increase in the Eurodollar Base Rate or the Alternate Base Rate, the affected Existing Floor or Existing Floors shall be increased to the extent necessary so that the All-In Yield of such Term Loans and/or Revolving Loans, as applicable, is equal to the All-In Yield of the applicable Increase minus 50 basis points, provided that no Existing Floor shall be increased by an amount greater than the difference between the Eurodollar Base Rate or Base Rate floor applicable to such Increase and the corresponding Existing Floor and (y) in the event that the All-In Yield applicable to such Increase to the Term Loan or incremental term facility exceeds the All-In Yield of the original existing Term Loans and/or Revolving Loans by more than 50 basis points after giving effect to the immediately preceding clause (x), the interest rate margins for the original existing Term Loans and/or Revolving Loans existing at such time shall be increased to the extent necessary so that the All-In Yield of such original existing Term Loans and/or Revolving Loans, as applicable, is equal to the All-In Yield of the applicable Increase minus 50 basis points; provided, that the provisions of this subclause (2) shall not apply to any Increase of the Term Loans made or any Increase pursuant to which any incremental term facilities are provided, in each case, after the first eighteen (18) months following the Closing Date.

(g) Each Increase shall rank pari passu in right of payment in respect of Collateral and with the Obligations in respect of the Revolving Credit Commitments and Term Loans available to Borrowers. In addition thereto (i) Increases to the Term Loans or any incremental term loans shall not have a final maturity date earlier than the latest maturity date applicable to the original Term Loan or previously established incremental term loan, (ii) other than pricing, amortization or maturity date, Increases of the Term Loans and establishment of incremental term loans shall be on terms and pursuant to

 

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documentation consistent with the terms and documentation of the Term Loans and previously established incremental term loans or as otherwise reasonably acceptable to the Administrative Agent, (iii) each Increase of the Revolving Credit Commitments and Revolving Borrowing thereunder shall be under the same terms as Revolving Loans in respect of Revolving Loan Commitments and (iv) subject to the foregoing, (A) the amortization schedule applicable to any Increase of the Term Loans or any Increase pursuant to which any incremental term facilities are provided shall be determined by the Borrowers and the lenders providing such Increase and (B) the applicable lenders providing any Increase of the Term Loans or any Increase pursuant to which any incremental term facilities are provided may agree to participate on a pro rata basis or less than a pro rata basis in any voluntary or mandatory prepayments as the original existing Term Loans.

(h) Conflicting Provisions . This Section 2.18 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

2.19. Prepayments Below Par.

(a) Borrowers’ Right to Prepay . Each Borrower shall have the right at any time and from time to time to prepay the Term Loan to the Lenders at a discount to the par value of such Loan and on a non-pro rata basis (each, a “ Discounted Voluntary Prepayment ”) pursuant to the procedures described in this Section 2.19 , provided that (i) no proceeds of Revolving Loans or Swing Line Loans shall be used to consummate any Discounted Voluntary Prepayment, (ii) no Default or Event of Default shall have occurred and be continuing or would result from the Discounted Voluntary Prepayment, (iii) the relevant Borrower shall deliver to Administrative Agent, together with each Discounted Prepayment Option Notice, a certificate of a Responsible Officer of the relevant Borrower (1) stating that each of the conditions to such Discounted Voluntary Prepayment contained in this Section 2.19 has been satisfied and (2) specifying the aggregate principal amount of the Term Loan to be prepaid pursuant to such Discounted Voluntary Prepayment, (iv) the Term Loan prepaid is immediately cancelled and may not be reborrowed, and (v) neither the Sponsor, the Borrowers or any of their respective Affiliates shall be required to make a representation that it is not in possession of material non-public information with respect to the Borrowers, their Subsidiaries or their respective securities and customary “Big Boy” disclaimers from all parties shall be obtained.

(b) Notice . To the extent any Borrower seeks to make a Discounted Voluntary Prepayment, such Borrower will provide written notice to the Administrative Agent (each, a “ Discounted Prepayment Option Notice ”) that such Borrower desires to prepay a portion of the Term Loan in an aggregate principal amount specified therein by such Borrower (each, a “ Proposed Discounted Prepayment Amount ”), in each case at a discount to the par value of the Term Loan as specified below. The Proposed Discounted Prepayment Amount shall not be less than $1,000,000 (unless otherwise agreed by the Administrative Agent). The Discounted Prepayment Option Notice shall further specify with respect to the proposed Discounted Voluntary Prepayment (i) the Proposed Discounted Prepayment Amount, (ii) a discount range (which may be a single

 

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percentage) selected by such Borrower with respect to such proposed Discounted Voluntary Prepayment equal to a percentage of par of the principal amount of the Term Loan to be prepaid (the “ Discount Range ”), and (iii) the date by which Lenders are required to indicate their election to participate in such proposed Discounted Voluntary Prepayment, which shall be at least 5 Business Days following the date of the Discounted Prepayment Option Notice (the “ Acceptance Date ”).

(c) Lender Acceptance . Upon receipt of a Discounted Prepayment Option Notice, the Administrative Agent shall promptly notify each applicable Lender thereof. On or prior to the Acceptance Date, each such Lender may specify by written notice (each, a “ Lender Participation Notice ” it being understood that a Lender may deliver more than one Lender Participation Notice, and that each such Lender Participation Notice of such Lender shall constitute an independent and unconditional offer, and no such Lender Participation Notice may be contingent on the making of any prepayment with respect to the Offered Loans (defined below) in respect of any other Lender Participation Notice, or otherwise be contingent or conditional in any way) to the Administrative Agent setting forth (i) a maximum acceptable discount to par (the “ Acceptable Discount ”) within the Discount Range (for example, a Lender specifying a discount to par of 20% would accept a purchase price of 80% of the par value of the portion of the Term Loan to be prepaid) and (ii) a maximum principal amount (subject to rounding requirements specified by the Administrative Agent) of the Term Loan held by such Lender with respect to which such Lender is willing to permit a Discounted Voluntary Prepayment at the Acceptable Discount (“ Offered Loans ”). Based on the Acceptable Discounts and principal amounts of the Offered Loans, the Administrative Agent, in consultation with the relevant Borrower, shall determine the applicable discount for the portion of the Term Loan to be prepaid (the “ Applicable Discount ”), which Applicable Discount shall be (y) the percentage specified by the relevant Borrower if such Borrower has selected a single percentage pursuant to Section 2.19(b) for the Discounted Voluntary Prepayment or (z) otherwise, the highest Acceptable Discount at which such Borrower can pay the Proposed Discounted Prepayment Amount in full (determined by adding the principal amounts of Offered Loans commencing with the Offered Loans with the highest Acceptable Discount); provided, however, that in the event that such Proposed Discounted Prepayment Amount cannot be paid in full at any Acceptable Discount, the Applicable Discount shall be the highest Acceptable Discount specified by the Lenders that is within that Discount Range and then the next highest until all of the Offered Loans are repurchased. The Applicable Discount shall be applicable for all Lenders who have offered to participate in the Discounted Voluntary Prepayment and have Qualifying Loans (as defined below). Any Lender whose Lender Participation Notice is not received by the Administrative Agent by the Acceptance Date shall be deemed to have declined to accept a Discounted Voluntary Prepayment of its portion of the Term Loan at any discount to their par value within the Discount Range.

(d) Loans held by Sponsor and Affiliates . Notwithstanding anything in this Section 2.19 to the contrary, if the consummation of any Discounted Voluntary Prepayment would have the effect of causing the aggregate principal amount of the Term Loans held by Sponsor and its Affiliates (other than Debt Fund Affiliates) to exceed 25% of the aggregate principal amount of all Term Loans then outstanding (a “ Sponsor

 

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Investor Overage ”), the Sponsor, such Affiliates and each Borrower agree that (i) the Sponsor and such Affiliates shall be deemed to have issued Lender Participation Notices accepting the Discounted Voluntary Prepayment offer for sufficient portions of the Term Loans held by the Sponsor and its Affiliates (other than Debt Fund Affiliates) so that the Sponsor Investor Overage would be eliminated, (ii) the applicable Borrower shall be deemed to have accepted such Lender Participation Notices in the aggregate amount necessary to eliminate the Sponsor Investor Overage and (iii) the Administrative Agent shall determine, in consultation with the applicable Borrower, how to allocate the applicable Discounted Voluntary Prepayment among the Sponsor and its Affiliates.

(e) Allocation . The relevant Borrower shall make a Discounted Voluntary Prepayment by prepaying the portion of the Term Loan to be prepaid (or the respective portions thereof) offered by the Lenders (“ Qualifying Lenders ”) that specify an Acceptable Discount that is equal to or greater than the Applicable Discount (“ Qualifying Loans ”) at the Applicable Discount, provided that if the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would exceed the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount, such amounts in each case calculated by applying the Applicable Discount, such Borrower shall prepay such Qualifying Loans ratably among the Qualifying Lenders based on their respective principal amounts of such Qualifying Loans (subject to rounding requirements specified by the Administrative Agent). If the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would be less than the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount, such amounts in each case calculated by applying the Applicable Discount, the relevant Borrower shall prepay all Qualifying Loans.

(f) Payment Mechanics . Each Discounted Voluntary Prepayment shall be made within 5 Business Days of the Acceptance Date (or such later date as the Administrative Agent shall reasonably agree, given the time required to calculate the Applicable Discount and determine the amount and holders of Qualifying Loans), without premium or penalty, upon irrevocable notice (each a “ Discounted Voluntary Prepayment Notice ”), delivered to the Administrative Agent no later than 1:00 p.m. New York City Time, 3 Business Days prior to the date of such Discounted Voluntary Prepayment, which notice shall specify the date and amount of the Discounted Voluntary Prepayment and the Applicable Discount determined by the Administrative Agent. Upon receipt of any Discounted Voluntary Prepayment Notice, the Administrative Agent shall promptly notify each relevant Lender thereof. If any Discounted Voluntary Prepayment Notice is given, the amount specified in such notice shall be due and payable to the applicable Lenders, subject to the Applicable Discount on the applicable portion of the Term Loan, on the date specified therein together with accrued interest (on the par principal amount) to but not including such date on the amount prepaid. The par principal amount of each Discounted Voluntary Prepayment of the Term Loan shall be applied ratably to reduce the remaining installments of the Term Loan.

 

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(g) Additional Procedures . To the extent not expressly provided for herein, each Discounted Voluntary Prepayment shall be consummated pursuant to reasonable procedures (including as to timing, rounding, minimum amounts, Type and Interest Periods and calculation of Applicable Discount in accordance with Section 2.19(b) above) established by the Administrative Agent and the relevant Borrower.

ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY

3.01. Taxes.

(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes .

(i) Any and all payments by or on account of any obligation of the Loan Parties hereunder or under any other Loan Document shall to the extent permitted by applicable Laws be made free and clear of and without reduction or withholding for any Taxes. If, however, applicable Law requires the withholding or deduction of any Tax, such Tax shall be withheld or deducted in accordance with such Laws as determined in good faith by Borrower Agent or Administrative Agent, as the case may be, taking into account the information and documentation to be delivered pursuant to subsection (e) below.

(ii) If applicable Law requires the withholding or deduction of any Taxes from any payment under any Loan Document, then (A) the applicable Loan Party shall withhold or make such deductions as are required taking into account the information and documentation it has received pursuant to subsection (e) below, (B) such Loan Party shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the applicable Law, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the Loan Parties shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

(b) Payment of Other Taxes by Loan Parties . Without limiting the provisions of subsection (a) above but without duplication of amounts payable under this Section, the Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Law.

(c) Tax Indemnification .

(i) Without limiting the provisions of subsection (a) or (b) above but without duplication of amounts payable under this Section, each Loan Party shall, and does hereby, on a joint and several basis indemnify each Recipient (and its respective directors, officers, employees, affiliates and agents) and shall make payment in respect thereof within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) withheld or

 

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deducted on payments to, or paid by, such Recipient (or its respective directors, officers, employees, affiliates and agents), as the case may be, and any penalties, interest and related expenses and losses arising therefrom or with respect thereto (including the fees, charges and disbursements of any counsel or other tax advisor for the Recipient (or its respective directors, officers, employees, affiliates, and agents)), whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of any such payment or liability delivered to Borrower Agent by a Lender or the L/C Issuer (with a copy to Administrative Agent), or by Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest error.

(ii) Without limiting the provisions of subsection (a) or (b) above, each Lender and the L/C Issuer shall, and does hereby, indemnify Administrative Agent, and shall make payment in respect thereof within 10 days after demand therefor, against (i) any Indemnified Taxes attributable to such Lender, (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.06(d) relating to the maintenance of a Participation Register and (iii) any Taxes (other than Indemnified Taxes) attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender or L/C Issuer by the Administrative Agent shall be conclusive absent manifest error. Each Lender and the L/C Issuer hereby authorizes Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or the L/C Issuer, as the case may be, under this Agreement or any other Loan Document against any amount due to Administrative Agent under this clause (ii). The agreements in this clause (ii) shall survive the resignation and/or replacement of Administrative Agent, any assignment of rights by, or the replacement of, a Lender or the L/C Issuer and the occurrence of the Facility Termination Date.

(d) Evidence of Payments . Upon request by Borrower Agent or Administrative Agent, as the case may be, after any payment of Taxes by the Loan Parties or by Administrative Agent to a Governmental Authority as provided in this Section 3.01 , Borrower Agent shall deliver to Administrative Agent or Administrative Agent shall deliver to Borrower Agent, as the case may be, the original or a copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to Borrower Agent or Administrative Agent, as the case may be.

(e) Status of Lenders; Tax Documentation .

 

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(i) Each Recipient shall deliver to Borrower Agent and to Administrative Agent, at the time or times prescribed by applicable Laws or when reasonably requested by Borrower Agent or Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit Borrower Agent or Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Recipient’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Recipient by the Loan Parties pursuant to this Agreement or otherwise to establish such Recipient’s status for withholding tax purposes in the applicable jurisdiction; provided each Recipient shall only be required to deliver such documentation as it may legally provide.

(ii) Without limiting the generality of the foregoing:

(A) any Recipient that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to Borrower Agent and Administrative Agent executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by Borrower Agent or Administrative Agent as will enable Borrower Agent or Administrative Agent, as the case may be, to determine whether or not such Recipient is subject to backup withholding or information reporting requirements; and

(B) each Foreign Lender shall deliver to Borrower Agent and Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of Borrower Agent or Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:

(I) executed originals of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party, if any,

(II) executed originals of Internal Revenue Service Form W-8ECI,

(III) executed originals of Internal Revenue Service Form W-8IMY and all required supporting documentation, or

(IV) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of any Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) executed originals of Internal Revenue Service Form W-8BEN.

 

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(iii) If a payment made to a Recipient under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Recipient shall deliver to Borrower Agent and Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrower Agent or Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower Agent or Administrative Agent as may be necessary for Borrower and Administrative Agent to comply with their obligations under FATCA and to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(iv) Each Recipient shall promptly notify Borrower Agent and Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction.

(f) Treatment of Certain Refunds . Unless required by applicable Laws, at no time shall Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as the case may be. So long as no Event of Default is occurring, if Administrative Agent, any Lender or the L/C Issuer determines, in its sole discretion acting in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section, it shall pay to such Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by any Loan Party under this Section with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including Taxes) incurred by Administrative Agent, such Lender or the L/C Issuer, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that each Loan Party, upon the request of Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to any Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to Administrative Agent, such Lender or the L/C Issuer in the event Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (f), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (f) to the extent the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party

 

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would have been in if the Tax subject to indemnification had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid. This subsection shall not be construed to require Administrative Agent, any Lender or the L/C Issuer to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Loan Party or any other Person.

3.02. Illegality . If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to Borrower Agent through Administrative Agent, (i) any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies Administrative Agent and Borrower Agent that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Loan Parties shall, upon demand from such Lender (with a copy to Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by Administrative Agent without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Loan Parties shall also pay accrued interest on the amount so prepaid or converted.

3.03. Inability to Determine Rates . If the Administrative Agent determines that for any reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan, or (c) the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, Administrative Agent will promptly so notify Borrower Agent and each Lender. Thereafter, (x) the obligation of the

 

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Lenders to make or maintain Eurodollar Rate Loans shall be suspended, and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until Administrative Agent revokes such notice. Upon receipt of such notice, Borrower Agent may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.

3.04. Increased Costs; Reserves on Eurodollar Rate Loans .

(a)  Increased Costs Generally . If any Change in Law shall:

(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement contemplated by Section 3.04(e)) or the L/C Issuer;

(ii) subject any Recipient to any Taxes on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto (except for (i) Indemnified Taxes covered by Section 3.01 , (ii) any Tax described in clause (a) of the definition of Excluded Taxes to the extent such Taxes are imposed on or measured by such Recipient’s net income or profits (or are franchise Taxes imposed in lieu thereof) and (iii) any Tax described in clauses (b) through (e) of the definition of Excluded Taxes); or

(iii) impose on any Lender or the L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such Lender or any Letter of Credit or participation therein;

and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer hereunder with respect to a Eurodollar Rate Loan (whether of principal, interest or any other amount) then, upon request of such Lender or the L/C Issuer, the Loan Parties will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.

(b) Capital Requirements . If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding

 

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company, if any, as a consequence of this Agreement, the Revolving Credit Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy), then from time to time pursuant to subsection (c) below the Loan Parties will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction suffered.

(c) Certificates for Reimbursement . A certificate of a Lender or the L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to Borrower Agent shall be conclusive absent manifest error. The Loan Parties shall pay such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 Business Days after receipt thereof.

(d) Delay in Requests . Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided that the Loan Parties shall not be required to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies the Loan Parties of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

(e) Reserves on Eurodollar Rate Loans . Without duplication of the effect of the Eurodollar Reserve Percentage, Borrowers shall pay to each Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits, additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive absent manifest error), which shall be due and payable on each date on which interest is payable on such Loan, provided Borrower Agent shall have received at least 15 days’ prior written notice (with a copy to Administrative Agent) of such additional interest from such Lender. If a Lender fails to give notice 15 days prior to the relevant Interest Payment Date, such additional interest shall be due and payable 15 days from receipt of such written notice.

 

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3.05. Compensation for Losses . Upon demand of any Lender (with a copy to Administrative Agent) from time to time, Borrowers shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:

(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);

(b) any failure by Borrowers (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by Borrower Agent; or

(c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by Borrower Agent pursuant to Section 10.13 ;

including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. Borrowers shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.

For purposes of calculating amounts payable by Borrowers to the Lenders under this Section 3.05 , each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.

3.06. Reimbursement

No Loan Party shall be required to compensate a Lender or the L/C Issuer pursuant to this Article III for any increased costs or reductions incurred more than one hundred eighty (180) days prior to the date that such Lender notifies the Borrower Agent of the change in law giving rise to such increased costs or reductions and of such Lender’s or the L/C Issuer’s intention to claim compensation therefore, provided further that, if the change in law giving rise to such increases costs or reduction is retroactive then the 180 day period referred to above shall be extended to include the period of retroactive effect hereof. Upon the receipt by Borrower Agent of such demand, the Borrower Agent shall have the option to immediately repay such Eurodollar Loan or convert such Eurodollar Loan to a Base Rate Loan, or cause the beneficiary of any such Letter of Credit to terminate such Letter of Credit, in each case in order to minimize or eliminate such increased cost or reduction.

3.07. Mitigation Obligations . If any Lender requests compensation under Section 3.04 , or Borrowers are required to indemnify or pay any additional amount to any Lender, the L/C Issuer or any Governmental Authority for the account of any Lender or the L/C Issuer pursuant to Section 3.01 , or if any Lender gives a notice pursuant to Section 3.02 , then such Lender or the L/C Issuer, as applicable, shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender or

 

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the L/C Issuer, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04 , as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02 , as applicable, and (ii) in each case, would not subject such Lender or the L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or the L/C Issuer, as the case may be. Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender or the L/C Issuer in connection with any such designation or assignment.

3.08. Survival . All of the obligations under this Article III shall survive the resignation of Administrative Agent, the L/C Issuer and the Swing Line Lender, the replacement of any Lender and the occurrence of the Facility Termination Date.

ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

4.01. Conditions of Initial Credit Extension . The obligation of each Lender and the L/C Issuer to make any initial Credit Extension hereunder is subject to satisfaction or waiver by the applicable party of the following conditions precedent:

(a) Administrative Agent’s receipt of the following items, each properly executed by a Responsible Officer of applicable Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to Administrative Agent and its legal counsel:

(i) Uniform Commercial Code financing statements, suitable in form and substance for filing in all places required by applicable law to perfect the Liens of Administrative Agent under the Security Instruments as a first priority Lien under U.S. law as to items of Collateral in which a security interest may be perfected by the filing of financing statements;

(ii) a legal opinion from Kirkland and Ellis LLP;

(iii) the secretary’s certificates, borrowing request and closing certificates set forth on the closing checklist attached hereto as Exhibit G ;

(iv) a solvency certificate in the form of Exhibit I ; and

(v) the Loan Documents, except for (i) the Guarantees by the Guarantors and (ii) those items that are specifically permitted herein to be delivered after the Closing Date

(b) with respect to the Borrowers, all amounts due or outstanding in respect of any Indebtedness of the Target (other than as permitted to remain outstanding under the Closing Date Acquisition Documents or the Loan Documents) and the Initial Borrower and its Subsidiaries have been (or substantially simultaneously with the initial funding of the Loans on the Closing Date, will be) paid in full, all commitments (if any) in respect thereof terminated, all guarantees (if any) thereof discharged and released and all security

 

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therefor (if any) released or documentation to effect such released upon such repayment and termination have been delivered to the Administrative Agent; provided, that notwithstanding the foregoing, certain lien filings, if any, in the U.S. Patent and Trademark Office or the U.S. Copyright Office, as applicable, on Intellectual Property owned by Target and its Subsidiaries relating to such Indebtedness of the Target (the “ Specified Lien Filings ”) shall not be required to be removed on or prior to the Closing Date, and Borrowers shall have seven (7) days following the Closing Date (or such longer period as may be agreed by Administrative Agent in its sole discretion) to file (or to have filed) the appropriate documents to cause the Specified Lien Filings to be removed;

(c) (x) the consummation of the incurrence of the Subordinated Indebtedness in accordance with the terms of the Subordinated Indebtedness Documents in an original aggregate principal amount not to exceed $40,000,000, (y) the consummation of equity contributions by Sponsor and its co-investors (together with rollover equity contributions from the selling shareholders and management of the Target) of not less than 35% of the total pro forma capital structure of the Initial Borrower and its Subsidiaries (after giving effect to the Transactions) and (z) the consummation of, substantially simultaneously with, but after, the initial funding of Loans on the Closing Date, the Closing Date Acquisition in accordance with the terms of the Closing Date Acquisition Documents, without any waiver, amendment, supplement or other modification of any provision of the Purchase Agreement that is material and adverse to the Lenders unless the Administrative Agent and Arranger have consented thereto; provided, that (1) any reduction in the purchase price for the Closing Date Acquisition set forth in the Purchase Agreement by less than fifteen percent (15%) is not material and adverse to the interests of the Lenders, (2) any increase in the purchase price for the Closing Date Acquisition set forth in the Purchase Agreement is not material and adverse to the interests of the Lenders so long as any such purchase price increase is funded with the proceeds of equity contributions, proceeds of Revolving Loans or proceeds of the Subordinated Indebtedness (it being understood and agreed that no purchase price adjustments or similar adjustment provisions set forth in the Purchase Agreement constitute a reduction or increase in the purchase price of the Closing Date Acquisition for purposes of this proviso), (3) the granting by Holdings of any consent under the Purchase Agreement that is not materially adverse to the interests of the Lenders shall not constitute an amendment or waiver for purposes of this clause (z) and (4) any change to the definition of “Material Adverse Effect” in the Purchase Agreement shall be deemed materially adverse to the Lenders.

(d) All accrued costs, fees and expenses (including all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to Administrative Agent, plus such additional amounts of such reasonable out-of-pocket fees, charges and disbursements as shall constitute its reasonable estimate of such reasonable out-of-pocket fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrowers and Administrative Agent) and the fees and expenses of any other advisors) and other compensation due and payable to Administrative Agent, the Arranger and the Lenders on or before the Closing Date shall have been paid (or deducted from the initial funding of the Loans hereunder), to the extent set forth in the Fee Letter or otherwise invoiced prior to the Closing Date (except as otherwise reasonably agreed by the Initial Borrower).

 

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(e) The Administrative Agent shall have received (i) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Target and its Subsidiaries for the Fiscal Year ended December 31, 2011 and the Fiscal Year ended December 31, 2012 and (ii) unaudited consolidated balance sheets and related statements of income and cash flows of the Target and its Subsidiaries for the month ended November 30, 2013 (and the corresponding period of the prior Fiscal Year, each prepared in accordance with GAAP; it being agreed and understood that as of the date hereof, the Administrative Agent has received such documents.

(f) The Administrative Agent shall have received an unaudited pro forma consolidated balance sheet of the Borrowers as of the date of the most recent consolidated balance sheet delivered pursuant to clause (e) above and related unaudited pro forma combined statement of income of the Target and its Subsidiaries for the twelve-month period ending on such balance sheet date, in each case adjusted to give effect to the Transactions as if the Transactions had occurred as of such date (in the case of such pro forma balance sheet) or at the beginning of such period (in the case of the pro forma statement of income); it being agreed and understood that as of the date hereof, the Administrative Agent has received such documents.

(g) The representations and warranties (i) set forth in Articles III and IV of the Purchase Agreement made by the Target and the Sellers in the Purchase Agreement as are material to the interests of the Lenders shall be true and correct in all respects but only to the extent that Initial Borrower (or any of its Affiliates) has the right to terminate its obligations under the Purchase Agreement (or refuse to consummate the Purchase Agreement) as a result of the breach of such representation or warranty in the Purchase Agreement (the “ Specified Acquisition Agreement Representations ”) and (ii) of the Initial Borrower contained in Sections 5.01(a) , 5.01(b)(ii) (solely as it relates to the Loan Documents), 5.02(a) (solely as it relates to the Loan Documents), 5.03 , 5.04(d) , 5.13 , 5.15 , 5.19 of this Agreement and Section 5(j) of the Security Agreement (solely with respect to the first two sentences thereof) (the “ Specified Representations ”) shall be true and correct in all material respects (without duplication of any materiality qualified contained therein); provided, that notwithstanding anything to the contrary contained herein or in any other Loan Document to the contrary, solely for the purpose of this clause (g), to the extent any of the Specified Acquisition Agreement Representations are qualified or subject to “material adverse effect”, the definition thereof shall be “Material Adverse Effect”, as defined in the Purchase Agreement.

(h) The Initial Borrower shall have provided the documentation and other information to the Administrative Agent (to the extent reasonably requested by the Administrative Agent in writing at least eight (8) Business Days prior to the Closing Date) that are required by regulatory authorities under the applicable “know-your-customer” rules and regulations, including the PATRIOT Act, in each case at least five (5) days prior to the Closing Date.

 

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(i) Since December 29, 2013, there shall not have occurred a Material Adverse Effect (as defined in the Purchase Agreement).

Notwithstanding anything herein to the contrary, the terms of the Loan Documents shall be in a form such that they do not impair availability of the Loans on the Closing Date if the conditions set forth in Section 4.01 are satisfied or waived (it being understood that to the extent any security interest in Collateral (including the creation or perfection of any security interest) (other than (x) grants of security interests in Collateral subject to the Uniform Commercial Code that may be perfected by the filing of Uniform Commercial Code financing statements and (y) the delivery of equity certificates for certificated Equity Interests of Holdings’ Domestic Subsidiaries that are part of the Collateral) is not or cannot be provided or perfected on the Closing Date after the Borrowers’ use of commercially reasonable efforts to do so, without undue burden or expense, the delivery of such Collateral (and granting and perfecting of security interests therein) shall not constitute a condition precedent to the availability of the Loans on the Closing Date but shall be required to be delivered within 90 days after the Closing Date (or such later date as may be reasonably agreed by the Administrative Agent in its sole discretion) pursuant to arrangements to be mutually agreed).

Without limiting the generality of the provisions of Section 9.04 , for purposes of determining compliance with the conditions specified in this Section 4.01 , each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

4.02. Conditions to all Credit Extensions . The obligation of each Lender to honor any Request for Credit Extension (other than the initial Credit Extension hereunder on the Closing Date or a Committed Loan Notice requesting only a conversion of Loans to the other Type or a continuation of Eurodollar Rate Loans) is subject to the following conditions precedent:

(a) The representations and warranties of the Loan Parties contained in Article V or any other Loan Document, shall be true and correct in all material respects (or in all respects for such representations and warranties that are by their terms already qualified as to materiality) on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects for such representations and warranties that are by their terms already qualified as to materiality) as of such earlier date.

(b) No Default or Event of Default (or solely with respect to any proposed Increase of the Term Loans or any Increase pursuant to which any incremental term facilities are provided, no Specified Event of Default) shall have occurred and be continuing, or would immediately result from such proposed Credit Extension.

 

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(c) Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.

Each Request for Credit Extension (other than the initial Credit Extension hereunder on the Closing Date or a Committed Loan Notice requesting only a conversion of Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by Borrower Agent shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied on and as of the date of the applicable Credit Extension.

ARTICLE V

REPRESENTATIONS AND WARRANTIES

To induce Administrative Agent and the Lenders to enter into this Agreement and to make Loans and to issue Letters of Credit hereunder, each Loan Party represents and warrants to Administrative Agent and the Lenders, that:

5.01. Existence, Qualification and Power . Each Loan Party and each Subsidiary (a) is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business as is now being conducted and (ii) execute, deliver and perform its obligations under the Loan Documents, Closing Date Acquisition Documents and Subordinated Indebtedness Documents to which it is a party, and (c) is duly qualified and in good standing under the Laws of each jurisdiction where its operation or properties requires such qualification, except, in the case of clauses (b)(i) and (c), to the extent that failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

5.02. Authorization; No Contravention; Consents . The execution, delivery and performance by each Loan Party of each Loan Document to which it is a party, and the consummation of the Transactions, have been duly authorized by all necessary organizational action, and (a) do not and will not (i) contravene the terms of its Organization Documents, (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under (other than as permitted by Section 7.02 ) (x) any Contractual Obligation to which such Person is a party or (y) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject, (iii) violate any Law material to any Loan Party or Subsidiary in any material respect, except with respect to any conflict, breach, or contravention referred to in clause (a)(ii), to the extent that such conflict, breach or contravention would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or (b) do not or will not require any approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person, except for (i) filings necessary to perfect Liens on the Collateral granted by the Loan Parties in favor of the Administrative Agent for the benefit of the Lender Parties, (ii) the approvals, consents, exemptions, authorizations, actions, notices, and filings which have been duly obtained, taken, given or made and are in full force and effect or (iii) if the failure to obtain the same, take such action or give such notice could reasonably be expected to result in a Material Adverse Effect.

 

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5.03. Binding Effect . This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to or affecting the rights and remedies of creditors or by general equitable principles.

5.04. Financial Statements; No Material Adverse Effect.

(a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as expressly noted therein; and (ii) fairly present, in all material respects, the financial condition of the Target and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein.

(b) The unaudited consolidated balance sheet of the Target and its Subsidiaries dated as of November 30, 2013, and the related consolidated statements of income or operations and cash flows for the fiscal month then ended fairly present in all material respects the financial condition of the Target and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject to the absence of footnotes and to year-end audit adjustments.

(c) Since the Closing Date, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.

(d) On the Closing Date, immediately after giving effect to the Transactions, the Loan Parties and their Subsidiaries, on a Consolidated basis, are Solvent.

5.05. Litigation . As of the Closing Date, there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of any Loan Party, threatened in writing or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against any Loan Party or any Subsidiary or against any of their properties that (a) purport to affect or pertain to this Agreement or any other Loan Document or any of the Transactions or (b) except as specifically disclosed in Schedule 5.05 , either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

5.06. No Default . No Default or Event of Default has occurred and is continuing.

5.07. Ownership of Property; Liens.

(a) Each Loan Party and each of its Subsidiaries has good, and in the case of Real Estate, defensible title to all property (tangible and intangible) necessary to, or used in the ordinary conduct of, its business, subject to Permitted Liens and except (i) for any such properties which are immaterial to the operations of such Loan Party’s or such Subsidiary’s respective business, (ii) as may have been disposed of in compliance with

 

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the terms of this Agreement, (iii) minor defects in title that do not materially interfere with such Loan Party’s ability to conduct its business or to utilize such assets for their intended purpose and/or (iv) where the failure to have such title or other interest would not reasonably be expected to have, individually, or in the aggregate, a Material Adverse Effect.

(b) Schedule 5.07(b)(1) sets forth the address (including street address, county and state) of all Real Estate that is owned by any Loan Party as of the Closing Date. Schedule 5.07(b)(2) sets forth the address (including street address, county and state) of all leased real property of the Loan Parties, with respect to each such lease as of the Closing Date.

5.08. Environmental Compliance.

(a) No Loan Party or any Subsidiary (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law with respect to such Loan Party’s or Subsidiary’s operations, (ii) has become subject to a pending claim with respect to any Environmental Liability or (iii) has received written notice of any claim with respect to any Environmental Liability except, in each case of clauses (i) – (iii) above, as has not resulted, and could not, individually or in the aggregate, reasonably be expected to result, in a Material Adverse Effect.

(b) As of the Closing Date, (i) none of the properties owned or operated by any Loan Party or any Subsidiary is listed or, to the knowledge of the Loan Parties, proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list or is adjacent to any such property; (ii) there are no and, to the knowledge of the Loan Parties, never have been any underground or above-ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Loan Party or any Subsidiary; (iii) to the knowledge of the Loan Parties, there is no asbestos or asbestos-containing material on any property currently owned or operated by any Loan Party or Subsidiary; and (iv) Hazardous Materials have not been released, discharged or disposed of by any Loan Party or Subsidiary in violation of Environmental Laws or, to the knowledge of the Loan Parties, by any other Person in violation of Environmental Laws on any property currently owned or operated by any Loan Party or any Subsidiary, except in each case of clauses (i)—(iv) above, as has not resulted and could not, individually or in the aggregate, reasonably be expected to result in, a Material Adverse Effect.

(c) Except as could not individually or in the aggregate reasonably be expected to result in a Material Adverse Effect on the part of the Loan Parties and their Subsidiaries, as of the Closing Date, no Loan Party or any Subsidiary is undertaking, and no Loan Party or any Subsidiary has completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of

 

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any Governmental Authority or the requirements of any Environmental Law; and all Hazardous Materials generated, used, treated, handled or stored by any Loan Party or any Subsidiary at, or transported to or from by or on behalf of any Loan Party or any Subsidiary, any property owned or operated by any Loan Party or any Subsidiary have, to the knowledge of the Loan Parties, been disposed of in a manner not, individually or in the aggregate, reasonably expected to result in a Material Adverse Effect.

5.09. Insurance and Casualty . The Loan Parties and their Subsidiaries maintain insurance with financially sound and reputable insurance companies which are not Affiliates of the Loan Parties, in such amounts, with such deductibles and covering such risks (including, without limitation, workmen’s compensation, public liability, business interruption and property damage insurance) as are customarily carried under similar circumstances by such other Persons as reasonably determined in good faith by the Borrowers. Schedule 5.09 sets forth a description of all insurance maintained by or on behalf of the Loan Parties and their Subsidiaries as of the Closing Date. As of the Closing Date, each insurance policy listed on Schedule 5.09 is in full force and effect.

5.10. Taxes . Each Loan Party and each Subsidiary has filed all Federal income Tax returns and other material Tax returns and reports required to be filed, and has paid all Federal income and other material Taxes, assessments, fees and other governmental charges levied or imposed upon it or its properties, income or assets otherwise due and payable, except those which are being Properly Contested.

5.11. ERISA Compliance.

(a) Except as would not have a Material Adverse Effect each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state Laws. Except as would not have a Material Adverse Effect each employee benefit plan that is not subject to United States law (a “ Foreign Plan ”) is in compliance in all material respects with all provisions of applicable Laws.

(b) As of the Closing Date, there are no pending or, to the best knowledge of any Loan Party, threatened in writing, claims, actions or lawsuits, or action by any Person, with respect to any Plan that would have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or would have a Material Adverse Effect.

(c) Except as would not have a Material Adverse Effect: (i) no ERISA Event has occurred, and no Loan Party is aware of any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event and (ii) each Loan Party, each Subsidiary thereof and each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained. As of the most recent valuation date preceding the Closing Date for any Pension Plan maintained by a Loan Party, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher and no Loan Party knows of any facts or circumstances that could reasonably be expected to cause the

 

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funding target attainment percentage for any such plan to drop below 60% as of the most recent valuation date. Except as would not have a Material Adverse Effect, no Loan Party, no Subsidiary thereof nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA.

(d) As of the Closing Date, no Loan Party maintains or contributes to, or has any unsatisfied obligation to contribute to, or liability under, any active or terminated Pension Plan other than those listed on Schedule 5.11(d) hereto.

(e) As of the Closing Date, except as set forth on Schedule 5.11(e) hereto no Loan Party maintains or contributes to any Foreign Plan.

(f) Except as would not result in a Material Adverse Effect, the fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the date hereof, with respect to all current and former participants in such Foreign Plan according to the actuarial assumptions and valuations most recently used to account for such obligations in accordance with applicable generally accepted accounting principles.

5.12. Subsidiaries; Equity Interests; Capitalization . As of the Closing Date, no Loan Party and no Subsidiary of any Loan Party (a) has any Subsidiaries other than those disclosed on Schedule 5.12 (which Schedule sets forth the legal name, jurisdiction of incorporation or formation and authorized Equity Interests of each such Subsidiary), or (b) has any equity Investments in any other Person other than those specifically disclosed on Schedule 5.12 . All of the outstanding Equity Interests of each Loan Party and each Subsidiary (a) have been validly issued, are fully paid and non-assessable (if applicable) and (b) as of the Closing Date, are owned by the Persons and in the amounts specified on Schedule 5.12 free and clear of all Liens except for Permitted Liens.

5.13. Margin Regulations; Investment Company Act . No Loan Party and no Subsidiary of any Loan Party is engaged, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock. None of the Loan Parties, nor any Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.

5.14. Disclosure . No report, financial statement, certificate or other written information furnished, in each case, in writing, by or on behalf of any Loan Party or any Subsidiary (other than any Projections (defined below), budgets, estimates or other forward looking statements) and information of a general economic or industry nature) to Administrative Agent or any Lender in connection with any Loan Documents or the transactions contemplated hereby (in each case, as modified or supplemented by other information so furnished) when taken as a whole contains any material misstatement of fact or omits to state any material fact necessary to make the statements contained therein not materially misleading in light of the circumstances under which they were made, provided that, with respect to written projected

 

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financial information (“ Projections ”), furnished by or on behalf of any Loan Party or any Subsidiary in connection with the transactions contemplated hereby, each Loan Party represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time such Projections were delivered by any Loan Party to Administrative Agent or any Lender, and it being recognized by the Lenders and the Administrative Agent that such projections as to future events are not to be viewed as facts or a guarantee of financial performance and no assurance can be given that Projections will be realized and actual results may differ from the Projections and such differences may be material.

5.15. Compliance with Laws; Anti-Terrorism Laws and Foreign Asset Control Regulations.

(a) Each Loan Party and each Subsidiary is in compliance with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

(b) Each Loan Party and each Subsidiary is in compliance in all material respects with, and the advances of the Loans and use of the proceeds thereof will not violate, (a) the Trading With the Enemy Act (50 U.S.C. § 1 et seq., as amended) (the “ Trading With the Enemy Act ”) or any of the foreign assets control regulations administered by the United States Treasury Department, Office of Foreign Assets Control (“ OFAC ”) (31 C.F.R., Subtitle B, Chapter V, as amended) (the “ Foreign Assets Control Regulations ”) and any other enabling legislation or executive order relating thereto (which, for the avoidance of doubt, shall include, but shall not be limited to, Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (Sept. 25, 2001)) (the “ Executive Order ”)) and/or (b) the Uniting and Strengthening America by Providing Appropriate Tools Required To Intercept And Obstruct Terrorism (USA PATRIOT) Act of 2001 (“ USA PATRIOT Act ”). None of the Loan Parties or any of their Subsidiaries is a “blocked person” as described in the Executive Order, the Trading With the Enemy Act or the Foreign Assets Control Regulations. None of the Loan Parties will use any part of the proceeds of the Loans for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977.

5.16. Labor Matters . Except as set forth on Schedule 5.16 , as of the Closing Date no Loan Party or any Subsidiary is a party to or bound by any collective bargaining agreement. There are no strikes, lockouts, slowdowns or other labor disputes against any Loan Party or any Subsidiary pending or, to the knowledge of any Loan Party, threatened in writing, in any case which, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect. As of the Closing Date, there are no representation proceedings pending or, to any Loan Party’s knowledge, threatened to be filed with the National Labor Relations Board, and

 

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no labor organization or group of employees of any Loan Party or any Subsidiary has made a pending demand for recognition. As of the Closing Date, there are no complaints, unfair labor practice charges, grievances, arbitrations, unfair employment practices charges or any other claims or complaints against any Loan Party or any Subsidiary pending or, to the knowledge of any Loan Party, threatened to be filed with any Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any employee of any Loan Party or any of its Subsidiaries which individually or in the aggregate would reasonably be expected to result in a Material Adverse Effect. The consummation of the transactions contemplated by the Loan Documents will not give rise to any right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which any Loan Party or any of its Subsidiaries is bound.

5.17. Brokers . No broker or finder (except for those whose fees and expenses have been paid in full on the Closing Date) brought about the obtaining, making or closing of the Loans or transactions contemplated by the Loan Documents.

5.18. Intellectual Property . The Loan Parties own, possess, or have the right to use all necessary Intellectual Property to conduct their businesses, except for any such failure to so own, possess or have the right to use that could not reasonably be expected to have a Material Adverse Effect.

5.19. Senior Indebtedness. All Obligations including those to pay principal of and interest (including post-petition interest, whether or not allowed as a claim under bankruptcy or similar laws) on the Loans and other Obligations, and fees and expenses in connection therewith, constitute “Senior Indebtedness” or similar term relating to the Obligations and all such Obligations are entitled to the benefits of the subordination created by the Intercreditor Agreement or any other applicable Subordinated Indebtedness Document, as applicable. Each Loan Party acknowledges that Administrative Agent, each Lender and the L/C Issuer is entering into this Agreement and is extending its Commitments in reliance upon the subordination provisions of the Intercreditor Agreement or applicable Subordinated Indebtedness Document.

ARTICLE VI

AFFIRMATIVE COVENANTS

So long as any Lender shall have any Commitment hereunder or any Loan Obligation (other than contingent indemnification claims for which no claim has been asserted) hereunder shall remain unpaid or unsatisfied, each Loan Party shall, and shall cause each Subsidiary to:

6.01. Financial Statements . Deliver to Administrative Agent, who shall distribute to each Lender:

(a) within 120 days after the end of each Fiscal Year (in the case of the Fiscal Year ending December 31, 2013, 150 days), a consolidated balance sheet of Holdings and its Subsidiaries (in the case of the Fiscal Year ending December 31, 2013, of J.A. Cosmetics and its Subsidiaries) as of the end of such Fiscal Year, and the related consolidated statements of income or operations, and cash flows for such Fiscal Year,

 

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setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an accounting firm of nationally recognized standing or otherwise reasonably acceptable to the Administrative Agent, it being agreed and understood that as of the Closing Date, McGladrey LLP is acceptable to the Administrative Agent (the “ Auditor ”), which report and opinion shall not be subject to any “going concern” or other qualification or exception or any qualification or exception as to the scope of such audit (except for qualifications relating to changes in accounting principles practice reflecting changes in GAAP and required or approved by such Auditor or relating to the financial statements for the fiscal year ending immediately prior to the final stated maturity of the Loans (including, for the avoidance of doubt, any Increases) or Subordinated Indebtedness, applicable, solely because of the impending maturity of the Loans or Subordinated Indebtedness, as applicable) and shall state that such financial statements fairly present in all material respects the financial condition of Holdings and its Subsidiaries as of the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP;

(b) within 45 days after the end of each Fiscal Quarter of each Fiscal Year, commencing with the Fiscal Quarter ending March 31, 2014 (in the case of each of the Fiscal Quarters ending March 31, 2014 and June 30, 2014, 60 days), (i) unaudited consolidated balance sheet of Holdings and its Subsidiaries as of the end of such Fiscal Quarter and the related consolidated statements of income or operations and cash flows for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, setting forth in each case in comparative form figures for the preceding Fiscal Year and the financial projections for the current Fiscal Year (or, in the case of quarterly financial statements delivered with respect to the Fiscal Quarters ending March 31, 2014, June 30, 2014, September 30, 2014 and December 31, 2014, to the corresponding period set forth in the financial model delivered to the Administrative Agent prior to the Closing Date) certified by a Responsible Officer of Borrower Agent to the effect that such statements fairly present in all material respects in accordance with GAAP the financial condition of Holdings and its Subsidiaries as of the dates indicated and the results of their operations for the periods indicated, subject to year-end adjustments and the absence of footnotes and (ii) a flash report of cash balances of Foreign Subsidiaries as of the last day of such Fiscal Quarter; and

(c) within 60 days after the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2014, annual financial projections of Holdings and its Subsidiaries on a consolidated basis, of quarterly consolidated balance sheets and statements of income or operations and cash flows, a budget, including assumptions made in the build-up of such budget, of the Loan Parties (and their Subsidiaries) consolidated financial performance for the forthcoming Fiscal Year on a quarterly basis.

 

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6.02. Other Information . Deliver to Administrative Agent who shall distribute to each Lender:

(a) concurrently with delivery of financial statements under Section 6.01(a) and with the financial statements under Section 6.01(b) , a Compliance Certificate executed by a Responsible Officer of Borrower Agent which certifies compliance with Section 7.12 and, solely with respect to the financial statements delivered under Section 6.01(b) , (i) a management report (x) describing the operations and financial condition of Holdings and its Subsidiaries for the fiscal period covered by such financial statements and the portion of the current Fiscal Year then elapsed and (y) discussing the reasons for any significant variations as between the fiscal period covered and the portion of the Fiscal Year then elapsed and the same periods during the immediately preceding Fiscal Year, and as between such periods and the same periods included in the financial projections delivered pursuant to Section 6.01(c) , and (ii) a description of any material change in accounting policies or financial reporting practices by any Loan Party or any Subsidiary (if any), all such information in the preceding clauses (i) and (ii) to be presented in reasonable detail;

(b) within ten (10) Business Days of delivery of financial statements under Section 6.01(a) , an Excess Cash Flow Certificate executed by a Responsible Officer of Borrower Agent for such Fiscal Year (other than with respect to the Fiscal Year ending December 31, 2013);

(c) promptly after the public filing thereof, copies of all annual, regular, periodic and special reports and registration statements which Holdings, any Borrower or any Subsidiary may file or be required to file with the SEC under Section 13 or 15(d) of the Exchange Act, and not otherwise required to be delivered to Administrative Agent pursuant hereto;

(d) [Reserved];

(e) [Reserved];

(f) [Reserved];

(g) promptly, such additional information regarding the business, financial or organizational affairs of any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents (excluding information subject to confidentiality obligations in favor of third parties which are not entered into in contemplation of this clause (g) or attorney-client privilege, constituting attorney work product or trade secrets or proprietary information or otherwise prohibited by law from disclosure), as Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request; and

(h) reasonably promptly from time to time, without duplication of any notices, reports or certificates delivered pursuant to this Agreement and the other Loan Documents, (i) with respect to this clause (i), the Loan Parties shall use commercially reasonable efforts to deliver copies of all material reports and other written information delivered to the Subordinated Lender Agent pursuant to the Subordinated Loan Agreement (without duplication of any such reports or information required to be delivered to Administrative Agent and the Lenders pursuant to Section 6.02 ), (ii) copies of all notices of the occurrence of a “Default”, an “Event of Default” or other event

 

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described by terms of similar import under the Subordinated Indebtedness Documents, (iii) notice of any cure or waiver of any “Default”, “Event of Default” or other event described by terms of similar import under the Subordinated Indebtedness Documents or any reservation of rights notice, and (iv) complete copies of, any amendments, consents, waivers, or forbearances to, or with respect to the Subordinated Indebtedness Documents.

6.03. Notices . Promptly after a Responsible Officer of any Loan Party becomes aware thereof notify Administrative Agent:

(a) of the occurrence of any Default or Event of Default;

(b) after the receipt thereof, a copy of any notice of any non-compliance with any applicable law, regulation or guideline relating to Holdings or any Subsidiary, or its business, including, without limitation, the FDA’s applicable Good Manufacturing Practice regulations, complaint handling regulations and requirements for cosmetic or “over the counter” drug products, which non-compliance would reasonably be expected to have a Material Adverse Effect;

(c) the occurrence of any ERISA Event that would reasonably be expected to have a Material Adverse Effect;

(d) after the receipt thereof, a copy of (i) any notice, complaint or inquiry from the FDA or any other Government Authority relating to Holdings or any Subsidiary, or its business, asserting that the manufacture, distribution, marketing or sale of the products of any Loan Party or any of its Subsidiaries is not in compliance with any applicable requirements of law, (ii) any notice from the FDA or any other Governmental Authority limiting, suspending or revoking any registration of the Loan Parties or their Subsidiaries, or (iii) any written notice asserting that a product of any Loan Party or any of its Subsidiaries has been or is being seized, withdrawn, recalled, detained, or subject to a suspension of manufacturing by the FDA or any other Governmental Authority, or any written notice of the commencement, or the threatened commencement, of any proceedings in the United States or any other applicable jurisdiction seeking the withdrawal, recall, suspension, import detention, or seizure of any product of any of the Loan Parties or their Subsidiaries except, in each case of (i) through (iii) above, where such non-compliance or action would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; and

(e) the occurrence of any actual or threatened investigation, inquiry, inspection or administrative or judicial action, hearing, or enforcement proceeding by the FDA or any other Governmental Authority, against any Loan Party or any Subsidiary in connection with legal or regulatory non-compliance, except in each case, where such non-compliance or action would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible Officer of Borrower Agent setting forth details of the occurrence referred to therein and stating what action Borrowers have taken and propose to take with respect thereto.

 

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6.04. Payment of Taxes and Assessments . Pay and discharge as the same shall become due and payable, all Federal, state and other tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being Properly Contested or unless the failure to so pay and discharge would not be reasonably be expected to have a Material Adverse Effect.

6.05. Preservation of Existence, Etc . (a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization or formation except in a transaction permitted by Section 7.04 or 7.05 ; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary in the normal conduct of its business except where the failure to do so would not reasonably be expected to have a Material Adverse Effect; (c) preserve or renew all of its registered Intellectual Property and rights to use Intellectual Property necessary in the normal conduct of its business except where the failure to take such action would not reasonably be expected to have a Material Adverse Effect; and (d) keep in full force and effect each License the expiration or termination of which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect (each a “ Material License ”).

6.06. Maintenance of Properties . Maintain, preserve and protect all of its tangible properties (other than insignificant properties) and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear and casualty and condemnation excepted, except (i) to the extent that, in the reasonable business judgment of such Person, any such property is no longer necessary for the proper conduct of the business of such person or (ii) where the failure to do so would not reasonably be expected to have a Material Adverse Effect.

6.07. Maintenance of Insurance; Business Interruption Proceeds.

(a) Maintain with financially sound and reputable insurance companies that are not Affiliates of the Loan Parties, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business and operating in the same or similar locations or as is required by applicable Law, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons as determined by management of the Loan Parties in their reasonable good faith business judgment.

(b) (i) Promptly after the expiration or cancellation of any insurance policies evidenced by the most recent insurance certificates delivered to the Administrative Agent, deliver to Administrative Agent certificates (in a form substantially similar to the insurance certificates delivered to the Administrative Agent in connection with the consummation of the Transaction) setting forth the nature and extent of all insurance maintained by the Loan Parties and (ii) cause each issuer of an insurance policy (excluding directors and officers policies, workers’ compensation policies and business interruption insurance policies) to a Loan Party to provide Administrative Agent with a customary endorsement showing, among other things, Administrative Agent as a loss payee with respect to each applicable policy of property or casualty insurance and naming Administrative Agent as an additional insured with respect to each applicable

 

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policy of liability insurance; provided, that with respect to any endorsements required to be delivered on the Closing Date with respect to the Initial Borrower and its Subsidiaries, the Loan Parties shall have ninety (90) days after the Closing Date (or such longer period as agreed to by Administrative Agent in its sole discretion), to deliver or cause to be delivered, such required endorsements to Administrative Agent in form and substance reasonably satisfactory to Administrative Agent.

(c) Unless Borrower Agent provides Agent Administrative with evidence of the continuing insurance coverage required by this Agreement, Administrative Agent may purchase insurance at Borrowers’ expense to protect Administrative Agent’s and Lenders’ interests in the Collateral. This insurance may, but need not, protect Borrowers’ and each other Loan Party’s interests. The coverage that Administrative Agent purchases may, but need not, pay any claim that is made against a Borrower or any other Loan Party in connection with the Collateral. Borrowers may later cancel any insurance purchased by Administrative Agent, but only after providing Administrative Agent with evidence that Loan Parties have obtained the insurance coverage required by this Agreement. If Agent purchases insurance for the Collateral, as set forth above, Borrowers will be responsible for the costs of that insurance, including interest and any other charges that may be imposed with the placement of the insurance, until the effective date of the cancellation or expiration of the insurance and the costs of the insurance may be added to the principal amount of the Loans owing hereunder.

6.08. Compliance with Laws Generally; Environmental Laws . Except in each case as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (a) comply with the requirements of all Laws (including without limitation all applicable Environmental Laws) and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which such requirement of Law or order, writ, injunction or decree is being Properly Contested; (b) maintain its Real Estate in compliance with all Environmental Laws; (c) obtain and renew all environmental permits required under requirements of Law for its operations and properties; and (d) implement any and all investigation, remediation, removal and response actions that are required to comply with Environmental Laws pertaining to the presence, generation, treatment, storage, use, disposal, transportation or release of any Hazardous Materials on, at, in, under or about any of its Real Estate.

6.09. Books and Records . Maintain proper books of record and account, in which full, true and correct entries, in all material respects, for the Loan Parties taken as a whole and for the Loan Parties and their Subsidiaries taken as a whole, in conformity with GAAP consistently applied (or such other customary standard in such foreign jurisdiction where a Foreign Subsidiary does business) shall be made.

6.10. Inspection Rights; Meetings with Administrative Agent. Permit Administrative Agent or its designees or representatives from time to time, subject to reasonable prior written notice and during normal business hours, to conduct inspections of the operations and properties of the Loan Parties and Subsidiaries and to examine its organizational, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers and auditors; provided that representatives of

 

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Borrower Agent shall be given the opportunity to participate in any discussions with the auditors. Administrative Agent shall not have any duty to any Loan Party to share any results of any such inspection, examination with any Loan Party. The Loan Parties acknowledge that all reports are prepared by or for Administrative Agent and Lenders for their purposes, and Loan Parties shall not be entitled to rely upon them. Notwithstanding anything to the contrary in this Section 6.10 , (i) none of the Loan Parties or any Subsidiary will be required to disclose or permit the inspection or discussion of, any document, information or other matter (a) that constitutes non-financial trade secrets or non-financial proprietary information, (b) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by Law or (c) that is subject to attorney client or similar privilege or constitutes attorney work product and (ii) absent an Event of Default that has occurred and is continuing, the Administrative Agent shall not exercise such rights more often than once per calendar year, which visit or inspection shall be at the Borrowers’ expense.

6.11. Compliance with ERISA . Do, and cause each of its ERISA Affiliates to do, each of the following, except if a Material Adverse Effect would not result from the failure to do so: (a) maintain each Plan in compliance in all material respects with the applicable provisions of ERISA, the Code and other applicable Laws; (b) cause each Plan which is qualified under section 401(a) of the Code to maintain such qualification; (c) cause each Foreign Plan to maintain any required approvals by any Governmental Authority regulating such Foreign Plan, (d) make all required contributions to any Plan, and (e) make all required contributions and payments to any Foreign Plans.

6.12. Further Assurances .

(a) At Borrowers’ cost and expense, upon reasonable request of Administrative Agent (or within thirty (30) days (or such longer period of time as the Administrative Agent may agree in its sole discretion) of the consummation of any Permitted Acquisition pursuant to which a Loan Party or Subsidiary has acquired all or substantially all of the assets of a Person (or all or substantially all of a line or lines of business of a Person)), duly execute and deliver or cause to be duly executed and delivered, to Administrative Agent such further instruments, documents, certificates and financing and continuation statements, and do and cause to be done such further acts that may be reasonably necessary in the reasonable opinion of Administrative Agent to grant, perfect and maintain the validity, effectiveness and priority of any of the Liens required by the Security Instruments and the other Loan Documents in accordance with all applicable requirements of Law.

(b) Within thirty (30) days (or such longer period of time as the Administrative Agent may agree in its sole discretion) of the acquisition or creation of any Domestic Subsidiary (other than an Excluded Domestic Subsidiary or other Excluded Subsidiary) or, pursuant to a Permitted Acquisition and in accordance with clause (a) of the definition thereof, the merger of any Loan Party or Subsidiary with and into any Person, with such Person as the surviving entity of such merger, cause to be delivered to Administrative Agent each of the following, as applicable, in each case, consistent with the documents delivered on the Closing Date or otherwise reasonably acceptable to Administrative Agent and, as applicable, duly executed by the parties thereto: (i) a

 

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joinder agreement with respect to this Agreement, together with other Loan Documents reasonably requested by Administrative Agent, including all Security Instruments and other documents reasonably requested to establish and preserve the Lien of Administrative Agent in all Collateral of such Domestic Subsidiary subject to any limitations on Collateral set forth in the Loan Documents; (ii) Uniform Commercial Code financing statements, Documents and original collateral (including pledged Equity Interests, other securities and Instruments) and such other documents and agreements as may be reasonably required by Administrative Agent, all as necessary to establish and maintain a valid, perfected Lien under U.S. law in all Collateral in which such Domestic Subsidiary has an interest consistent with the terms of the Loan Documents executed on the Closing Date (and subject to any limitations on Collateral set forth therein); (iii) upon the reasonable request of the Administrative Agent, an opinion of counsel to such Domestic Subsidiary addressed to Administrative Agent and the Lenders, in form and substance reasonably acceptable to Administrative Agent and substantially similar to those opinions of counsel delivered on the Closing Date; and (iv) current copies of the Organization Documents of such Domestic Subsidiary resolutions of the Board of Directors (and, if required by such Organization Documents or applicable law, of the shareholders, members or partners) of such Person authorizing the actions and the execution and delivery of documents described in this Section 6.12 , all certified by an appropriate officer. For the avoidance of doubt, any Foreign Subsidiary, Excluded Domestic Subsidiary or other Excluded Subsidiary shall not be required to guarantee or pledge its assets for any obligations of a Loan Party; provided however , the shareholder or shareholders of any such first tier Foreign Subsidiary, Excluded Domestic Holdco or Excluded Domestic Subsidiary, as applicable, shall pledge 65% of all classes of Equity Interests of such first tier Foreign Subsidiary, Excluded Domestic Holdco or Excluded Domestic Subsidiary, as applicable, to support the Obligations of such Loan Parties (and no other Equity Interests of a Foreign Subsidiary, Excluded Domestic Holdco or Excluded Domestic Subsidiary shall be pledged).

(c) Within ninety (90) days (or such longer period of time as the Administrative Agent may permit) of the acquisition by any Loan Party of any fee owned Real Estate with an individual fair market value in excess of $2,000,000, deliver or cause to be delivered to Administrative Agent, with respect thereto, in each case reasonably acceptable to Administrative Agent, a mortgage or deed of trust, as applicable, and an opinion of Borrowers’ counsel with respect thereto, an ALTA lender’s title insurance policy insuring Administrative Agent’s first priority Lien (subject to Permitted Liens), a current ALTA survey, certified to Administrative Agent by a licensed surveyor, a certificate from a national certification agency indicating whether such Real Estate is located in a special flood hazard area (and, if applicable, flood insurance) and an environmental audit (to the extent already prepared).

6.13. Use of Proceeds . The Borrowers shall use the proceeds of the Loans (other than Revolving Loans) solely as follows: (a) first, to refinance on the Closing Date, existing Indebtedness of the Target and then to pay on the Closing Date a portion of the consideration for the Closing Date Acquisition, (b) to pay fees, costs and expenses of the Transactions and fees, costs and expenses required to be paid pursuant to Section 4.01 , (c) to finance the working capital needs of the Borrowers and their Subsidiaries, (iv) for general corporate purposes

 

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(including for expenditures not prohibited by the Loan Documents) and (d) payment of fees and expenses related to the foregoing. The Borrowers shall use the proceeds of the Revolving Loans solely as follows: (a) on the Closing Date, to (i) pay upfront fees (or OID) with respect to the Facilities and (ii) to pay a portion of the consideration for the Closing Date Acquisition on the Closing Date (or any fees and expenses related to the Transactions) and (b) after the Closing Date, (i) to finance the working capital needs of the Borrowers and their Subsidiaries, (ii) for general corporate purposes and capital expenditures (including for expenditures not prohibited by the Loan Documents) of Borrowers and their respective Subsidiaries not in violation of this Agreement, (iii) for Letters of Credit and (iv) for payment of fees and expenses related to the foregoing.

6.14. Control Agreements. Each Loan Party shall enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements with respect to each deposit, securities, commodity or similar account maintained by such Person (other than (a) zero balance accounts, (b) any payroll account so long as the Loan Parties do not deposit or maintain funds in any such payroll account in excess of amounts necessary for the purpose of funding up to two periods of payroll liabilities (including payroll taxes) and amounts necessary to satisfy minimum balance requirements, (c) petty cash accounts, amounts on deposit in which do not exceed $350,000 in the aggregate at any one time and (d) withholding tax, benefits, trust, escrow or fiduciary accounts, in each case, which hold funds solely (i) for taxes required to be collected, remitted or withheld (including, without limitation, federal and state withholding taxes (including the employer’s share thereof)) or (ii) that are benefits accounts or held on behalf of another Person or as an escrow or fiduciary for such Person, as applicable (such excluded accounts, “ Excluded Accounts ”)) as of and after the Closing Date. It is agreed and understood that the Loan Parties shall have until the date that is (a) ninety (90) days following the Closing Date (or such later date as may be agreed to by Administrative Agent in its sole discretion) to comply with the provisions of this Section 6.14 with regard to accounts (other than Excluded Accounts) of the Loan Parties existing on the Closing Date.

6.15. Collateral Access Agreements. Each Loan Party shall use commercially reasonable efforts to obtain, (a) within ninety (90) days after the Closing Date, a landlord waiver or collateral access agreement from the respective lessors of each of the following leased properties (i) the Borrowers’ distribution center located at 45 Mayhill Street, Saddle Brook, New Jersey 07663 and (ii) the corporate headquarters of any Borrower (excluding, for the avoidance of doubt, the corporate headquarters of the Initial Borrower), which agreements shall be reasonably satisfactory in form and substance to Administrative Agent and (b) within ninety (90) days after the acquisition of, or execution and delivery of a lease with respect to, leased locations acquired after the Closing Date where any Collateral in excess of $2,500,000 or which otherwise constitute corporate headquarters, a landlord waiver or collateral access agreement from the respective lessors of such leased locations, which agreements shall be reasonably satisfactory in form and substance to Administrative Agent; provided, that it being understood and agreed that no Loan Party shall be required to take any actions to obtain a landlord waiver or collateral access agreement with respect to a leased location described in clause (b) above unless the applicable Loan Party reasonably believes that such landlord waiver or collateral access agreement is reasonably obtainable without paying any fees to the applicable lessor and without incurring excessive costs and expenses within ninety (90) days of requesting such a landlord

 

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waiver or collateral access agreement. It is agreed and understood that the Loan Parties shall have until the date that is ninety (90) days following the Closing Date (or such later date as may be agreed to by Administrative Agent in its sole discretion) to use commercially reasonable efforts to comply with the provisions of this Section 6.15 with regard to the distribution center specified in clause (a) above and the corporate headquarters of the Borrowers as of the Closing Date; provided that in no event shall a Default or Event of Default occur as a result of not delivering any such collateral access agreement so long as the Loan Parties used commercially reasonable efforts to obtain the same within the specific time frame.

6.16. Joinder Agreement . Prior to 11:59 p.m. (New York City time) on the Closing Date, after giving effect to the Closing Date Acquisition, Initial Borrower shall cause J.A. Cosmetics to join this Agreement as a “Borrower” and each Domestic Subsidiary (other than Excluded Subsidiaries) of J.A. Cosmetics to join this Agreement as a “Borrower”, in each case, by executing and delivering to Administrative Agent a Joinder Agreement.

6.17. [Reserved] .

6.18. [Reserved] .

6.19. Amendments to Certain Agreements .

Upon entering into any amendment or other modification of the Subordinated Loan Agreement or any extension, renewal, replacement, refinancing or any other form of refunding of the Subordinated Loan Agreement (a “Replacement Loan Agreement” ) or any amendment or other modification of any Replacement Loan Agreement, in any such case (each being a “Modifying Agreement” ) pursuant to which covenants or events of default are changed or added (or having the same effect as such a change or addition), the Loan Parties shall (1) promptly, and in any event within three Business Days provide written notice thereof to Administrative Agent and each Lender describing such Modifying Agreement in reasonable detail and (2) offer to enter into an amendment of this Agreement within five Business Days of consummating such Modifying Agreement to make corresponding changes or additions herein in respect of covenants and events of default; provided, however , that, as to covenants which set forth any requisite ratio or compliance amount, such ratio and compliance amount may be more onerous upon the Loan Parties in the same proportion as comparable provisions are more onerous hereunder on the Closing Date.

ARTICLE VII

NEGATIVE COVENANTS

So long as any Lender shall have any Commitment hereunder or any Loan Obligation (other than contingent indemnification claims for which no claim has been asserted) hereunder shall remain unpaid or unsatisfied, no Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly:

7.01. Indebtedness . Create, incur, assume or suffer to exist any Indebtedness or issue any Disqualified Equity Interest, except:

 

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(a) the Obligations, the Secured Obligations and the Indebtedness permitted pursuant to Section 2.18 ;

(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01 and any Permitted Refinancing thereof;

(c) (i) Guarantees by any Loan Party in respect of Indebtedness otherwise permitted hereunder of any other Loan Party; provided that any Guarantee of Indebtedness that is required to be subordinated to the Obligations shall be subordinated to the Obligations on terms at least as favorable to Administrative Agent and the Lenders as such subordinated Indebtedness and (ii) Guarantees by a Subsidiary of Holdings which is not a Loan Party in respect of Indebtedness otherwise permitted hereunder of another Subsidiary of Holdings which is not a Loan Party;

(d) obligations (contingent or otherwise) of the Loan Parties and their Subsidiaries existing or arising under any Swap Contract, provided that such obligations are (or were) required hereunder or entered into by such Person in the Ordinary Course of Business and not for purposes of speculation;

(e) Indebtedness in respect of Capital Leases and purchase money obligations within the limitations set forth in Section 7.02(i) and Permitted Refinancings thereof; provided , however , that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $2,500,000;

(f) the endorsement of negotiable instruments for deposit or collection or similar transactions in the Ordinary Course of Business;

(g) Indebtedness of (i) any Loan Party owing to any other Loan Party, (ii) any Subsidiary that is not a Loan Party owing to any other Subsidiary that is not a Loan Party, (iii) any Subsidiary that is not a Loan Party owing to any Loan Party; provided that (A) the aggregate principal amount of all such Indebtedness under this clause (iii) of all such Subsidiaries (together with Investment permitted under Section 7.03(c)(iv) ) shall not exceed the greater of (i) $5,000,000 and (ii) 15% of Adjusted Consolidated EBITDA for the four Fiscal Quarter period most recently ended as to which financial statements were required to be delivered pursuant to this Agreement, in the aggregate at any time outstanding and (B) such Indebtedness shall not be evidenced by promissory notes unless such notes are delivered to the Administrative Agent and pledged to Administrative Agent pursuant to the Security Agreement, and (iv) any Loan Party owing to any Subsidiary that is not a Loan Party, so long as such Indebtedness is subordinated in right of payment to the prior Payment in Full of the Obligations pursuant to subordination provisions reasonably acceptable to the Administrative Agent;

(h) (i) surety bonds, performance bonds or custom bonds or any guarantees in connection with the foregoing, in each case, incurred in the Ordinary Course of Business and (ii) appeal bonds in connection with the enforcement of rights or claims of Borrower or any Subsidiary in connection with judgments that do not result in an Event of Default;

 

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(i) Indebtedness (i) owing to insurance carriers and incurred to finance insurance premiums of any Loan Party or any Subsidiary or (ii) consisting of take or pay obligations contained in supply agreements, in the case of each of the foregoing clauses (i) and (ii), incurred in the Ordinary Course of Business;

(j) (i) unsecured deferred purchase price obligations in the form of earnouts and other similar contingent obligations and (ii) unsecured seller debt subject to customary subordination terms as reasonably determined by the Borrowers, which shall, in any event, provide that any such unsecured seller debt shall not be payable while an Event of Default has occurred and is continuing, in the case of each of the foregoing clauses (i) and (ii), incurred in connection with a Permitted Acquisition, solely to the extent permitted pursuant to the defined term “Permitted Acquisition” or other Investment permitted hereunder and;

(k) Indebtedness in respect of cash management obligations, netting services, overdraft protections and other like services, in each case incurred in the Ordinary Course of Business;

(l) the Subordinated Indebtedness and any refinancing, renewal or extension thereof permitted by the terms of the Intercreditor Agreement as in effect as of the Closing Date unless any amendment thereto is consented to by the Loan Parties;

(m) Indebtedness representing any taxes, assessments or governmental charges to the extent (i) the same are being Properly Contested or (ii) that payment thereof shall not at any time be required to be made in accordance with Section 6.04 hereof;

(n) Indebtedness of Borrowers or any Subsidiary which may be deemed to exist in connection with agreements providing for indemnification, incentive, non-compete, purchase price adjustments and similar obligations in connection with the disposition of assets in the Ordinary Course of Business and in accordance with the requirements of this Agreement, so long as any such obligations are those of the Person making the respective sale, and are not guaranteed by any other Person except as permitted hereunder;

(o) Indebtedness assumed in connection with any Permitted Acquisition or other investment permitted under Section 7.03(z) , provided that (x) such Indebtedness (i) was not incurred in contemplation of such Permitted Acquisition or such other investment, (ii) is secured only by the assets acquired in the applicable Permitted Acquisition or other investment (including any acquired Equity Interests), (iii) the only obligors with respect to any Indebtedness incurred pursuant to this clause (o) shall be those Persons who were obligors of such Indebtedness prior to such Permitted Acquisition or applicable investment, (y) both immediately prior and after giving effect thereto no Event of Default shall exist or result therefrom and (z) the aggregate amount of all such Indebtedness outstanding at any one time does not exceed $5,000,000;

(p) unsecured Indebtedness representing deferred compensation, deferred compensation plans or other similar arrangements to employees of the Borrowers (or any direct parent of a Borrower) and their Subsidiaries, in each case, incurred in the Ordinary Course of Business;

 

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(q) unsecured Indebtedness of Holdings to current or former officers, directors, partners, managers, consultants and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings (or any direct or indirect parent thereof) permitted by Section 7.06 ;

(r) Indebtedness incurred by Holdings, the Borrowers or any of their Subsidiaries in a Permitted Acquisition or any other Investment expressly permitted hereunder, in each case to the extent constituting reasonable and customary indemnification obligations or obligations in respect of working capital or other similar purchase price adjustments;

(s) Indebtedness incurred by the Borrowers or any of their Subsidiaries in respect of letters of credit, bank guarantees, banker’s acceptances, warehouse receipts or similar instruments issued or created in the Ordinary Course of Business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;

(t) [reserved];

(u) Indebtedness of Foreign Subsidiaries which is secured by the assets of any Foreign Subsidiary as permitted under Section 7.02(z) , in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;

(v) unsecured subordinated Indebtedness, provided that (i) any such subordinated Indebtedness shall have a final maturity on or later than the final maturity of the Indebtedness under the Subordinated Indebtedness Documents and a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Indebtedness under the Subordinated Indebtedness Documents, (ii) such subordinated Indebtedness shall be unsecured and shall only be guaranteed by Holdings or the Subsidiaries that are otherwise guarantors of the Indebtedness under the Subordinated Indebtedness Documents at the time any such subordinated Indebtedness is incurred, (iii) such subordinated Indebtedness shall be subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the Indebtedness under the Subordinated Indebtedness Documents (including the Intercreditor Agreement as in effect as of the Closing Date unless any amendment thereto is consented to by the Loan Parties) or reasonably satisfactory to Administrative Agent, (iv) all of the other terms (other than interest rates, premiums, call protection and fees) and conditions governing such subordinated Indebtedness shall be substantially identical to or less favorable to the lenders providing such subordinated Indebtedness than those applicable to the Indebtedness under the Subordinated Indebtedness Documents taken as a whole but, in any case, no scheduled principal payments, redemptions or sinking fund or like payments of any such unsecured subordinated Indebtedness shall be required prior to the date at least 6 months after the later of the

 

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Revolving Credit Maturity Date or the Term Loan Maturity Date, (v) no Event of Default shall exist immediately before and after giving effect to the incurrence of such unsecured subordinated Indebtedness and the use of proceeds therefrom on such date, and (vi) immediately before and after giving effect to the incurrence of such unsecured subordinated Indebtedness and the use of proceeds therefrom on such date, (x) the Consolidated Total Net Leverage Ratio of Holdings and its Subsidiaries as of the end of the Fiscal Quarter most recently ended as to which financial statements were required to be delivered pursuant to this Agreement shall be equal to or less than 4.50 to 1.00, (y) the Consolidated Senior Net Leverage Ratio of Holdings and its Subsidiaries as of the end of the Fiscal Quarter most recently ended as to which financial statements were required to be delivered pursuant to this Agreement shall be equal to or less than 3.25 to 1.00 and (z) the Loan Parties shall be in compliance on a Pro Forma Basis with the requirements of the covenants set forth in Section 7.12(a) and (b)  (any such unsecured subordinated Indebtedness, “ Other Subordinated Indebtedness ”)

(w) additional Indebtedness in an aggregate outstanding principal amount at any one time outstanding not to exceed $7,500,000;

(x) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (w) above;

(y) interest and fees payable in kind or accrued on any of the foregoing; and

(z) unsecured and non-interest bearing obligations of Holdings arising from the exercise of the Seller Put Option.

For purposes of determining compliance with any restriction on the incurrence of Indebtedness, the principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to extend, replace, refund, refinance, renew or defease other Indebtedness denominated in a foreign currency, and such extension, replacement, refunding, refinancing, renewal or defeasance would cause the applicable restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance, such restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased.

7.02. Liens . Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following (“ Permitted Liens ”):

(a) Liens in favor of Administrative Agent pursuant to any Loan Document and pursuant to any documentation governing Indebtedness permitted to be incurred pursuant to Section 2.18 ;

 

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(b) Liens existing on the date hereof and set forth on Schedule 7.02 and any renewals, extensions, modifications or replacements thereof; provided , with respect to any renewals, extensions, modifications or replacements thereof, (i) such Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.01(b) , and (B) proceeds and products thereof; and (ii) the renewal, extension or refinancing of the obligations secured or benefited by such Liens is permitted by Section 7.01(b) ;

(c) Liens for taxes, duties, levies, imposts, deductions, assessments or other governmental charges, not yet due and payable or which are being Properly Contested or otherwise not required to be paid pursuant to Section 6.04 ;

(d) Liens of carriers, warehousemen, processors, mechanics, materialmen, repairmen, landlords or other like Liens imposed by Law or arising in the Ordinary Course of Business which are not overdue for a period of more than 90 days or which are being Properly Contested;

(e) Liens, pledges or deposits in the Ordinary Course of Business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA or a foreign benefit law;

(f) Liens on deposits to secure the performance of bids, trade contracts and leases, statutory obligations, surety bonds, performance bonds and other obligations (other than obligations for the payment of borrowed money) of a like nature incurred in the Ordinary Course of Business;

(g) Liens consisting of imperfections of title and easements, rights-of-way, covenants, consents, reservations, encroachments, variations and zoning and other similar restrictions, charges, encumbrances or title defects affecting real property which, in the aggregate do not materially detract from the value of the property subject thereto or materially interfere with the use by the Loan Parties or their Subsidiaries in the Ordinary Course of Business of the property subject to such encumbrance;

(h) Liens securing judgments not constituting an Event of Default under Section 8.01 or securing appeal or other surety bonds related to such judgments;

(i) Liens securing Indebtedness permitted under Section 7.01(e) ; provided that such Liens do not at any time encumber any property other than the property financed by such Indebtedness and replacements thereof and additions and accessions to such property and the proceeds and the products thereof and customary security deposits;

(j) licenses, sublicensees, operating leases or subleases (and precautionary UCC filings with respect thereto) granted by or to the Loan Parties or any Subsidiary to or from any other Person in the Ordinary Course of Business and any renewals, extensions, modifications or replacements thereof;

 

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(k) Liens in favor of collecting banks (including those arising under Section 4-210 of the UCC) arising by operation of law;

(l) Liens (including the right of setoff) in favor of a bank or other depository institution arising as a matter of law encumbering deposits;

(m) Liens in favor of customs and revenue authorities to secure payment of customs duties in connection with the importation of goods and arising in the Ordinary Course of Business;

(n) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto to the extent permitted under Section 7.01(i) and Liens arising out of deposits of cash and Cash Equivalents, security deductibles, self-insurance, co-payment, co-insurance, retentions and similar obligations to providers of insurance in the Ordinary Course of Business;

(o) other Liens as to which the aggregate amount of the obligations secured thereby does not exceed $5,000,000 at any time outstanding;

(p) Liens (i) on cash advances in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 7.03(f) , (l) , or (z)  to be applied against the purchase price for such Investment and (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 7.05 , in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien;

(q) Liens in favor of Holdings, the Borrowers or any Subsidiary that is a Loan Party securing Indebtedness permitted under Section 7.01(g) ;

(r) Liens existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Subsidiary, in each case after the date hereof; provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Subsidiary, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and other than after-acquired property subjected to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition), and (iii) the Indebtedness secured thereby is permitted under Section 7.01(o) ;

(s) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by the Borrowers or any Subsidiaries in the Ordinary Course of Business;

 

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(t) Liens that are customary contractual rights of set-off (i) relating to the establishment of depository relations with banks or other financial institutions in the Ordinary Course of Business, (ii) relating to pooled deposit or sweep accounts of the Borrowers or any Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrowers or Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the Borrowers or any Subsidiary in the Ordinary Course of Business;

(u) Liens arising from precautionary Uniform Commercial Code financing statement filings;

(v) Liens on specific items of inventory or other goods and the proceeds thereof securing such Person’s obligations in respect of documentary letters of credit issued for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods in the Ordinary Course of Business;

(w) ground leases in respect of real property on which facilities owned or leased by the Borrowers or any Subsidiaries are located;

(x) Liens on property of a Subsidiary that is not a Loan Party securing Indebtedness of another Subsidiary that is not a Loan Party permitted to be incurred by Section 7.01 ;

(y) Liens solely on any cash earnest money deposits made by the Borrowers or any of their Subsidiaries in connection with any letter of intent or purchase agreement for an Acquisition or other Investment that would be permitted hereunder;

(z) Liens on the assets of Foreign Subsidiaries securing Indebtedness permitted by Section 7.01(u) ; and

(aa) Liens securing Indebtedness permitted by Section 7.01(l) and subordinated in right of priority to the Liens securing the Obligations hereunder pursuant to the terms of the Intercreditor Agreement as in effect as of the Closing Date unless any amendment thereto is consented to by the Loan Parties.

7.03. Investments . Make any Investments, except:

(a) Investments held by the Loan Parties and their Subsidiaries in the form of Cash Equivalents;

(b) loans and advances to officers, directors and employees of the Loan Parties and Subsidiaries made in the Ordinary Course of Business in an aggregate amount at any one time outstanding not to exceed $2,000,000;

(c) (i) Investments by the Loan Parties and their Subsidiaries in their respective Subsidiaries solely to the extent outstanding on the date hereof, (ii) additional Investments by a Loan Party in or to another Loan Party (in the case of Investments in or to Holdings, solely pursuant to loans, advances, Guarantees or assumptions of Indebtedness of Holdings or the acquisition of any Equity Interests of a Subsidiary of Holdings, in each case, to the extent permitted hereunder and constituting Investments),

 

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(iii) additional Investments by any Subsidiary that is not a Loan Party in any other Subsidiary that is not a Loan Party, (iv) additional Investments by the Loan Parties in Subsidiaries that are not Loan Parties in an aggregate amount (together with Indebtedness permitted by Section 7.01(g)(iii) ) not to exceed the greater of (x) $5,000,000 and (y) 15% of Adjusted Consolidated EBITDA for the four Fiscal Quarter period most recently ended as to which financial statements were required to be delivered pursuant to this Agreement, in the aggregate at any time outstanding and (v) additional Investments by any Subsidiary that is not a Loan Party to a Loan Party;

(d) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the Ordinary Course of Business (and, to the extent owing by a Foreign Subsidiary to a Loan Party, made on customary arms-length terms), and Investments received in satisfaction or partial satisfaction thereof from financially troubled or delinquent account debtors or received in connection with disputes with customers and suppliers, in each case, to the extent in furtherance of business objectives determined in good faith by the Loan Parties or their Subsidiaries;

(e) Investments existing as of the date hereof (other than those set forth on Schedule 5.12 ) to the extent set forth in Schedule 7.03 and extensions or renewals thereof, provided that no such extension or renewal shall be permitted if it would (i) increase the amount of such Investment at the time of such extension or renewal or (ii) result in a Default or an Event of Default hereunder;

(f) Investments consisting of a Permitted Acquisition;

(g) bank deposits and securities accounts maintained in accordance with the terms of this Agreement and the other Loan Documents;

(h) Investments in securities of account debtors received pursuant to a plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such account debtors and Investments acquired in connection with the settlement of delinquent accounts receivable in the Ordinary Course of Business;

(i) Investments received as the non-cash portion of consideration in connection with a transaction permitted under Section 7.05 ;

(j) Investments constituting Indebtedness and Guarantees permitted under Section 7.01 and transactions permitted by Section 7.04 , Section 7.05 and Section 7.06 ;

(k) deposits permitted under Section 7.02 ;

(l) other Investments (including Minority Interests) not exceeding $15,000,000 in the aggregate at any one time outstanding;

(m) Investments to the extent solely reflecting an increase in the value of Investments otherwise permitted hereunder;

 

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(n) asset purchases (including purchases of inventory, supplies and materials) and the licensing of Intellectual Property, in each case in the Ordinary Course of Business;

(o) Investments in the Ordinary Course of Business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices;

(p) advances of payroll payments to employees in the Ordinary Course of Business;

(q) Investments held by a Subsidiary acquired after the Closing Date (including, pursuant to a Permitted Acquisition) or of a Person merged into a Borrower or merged or consolidated with a Subsidiary in accordance with Section 7.04 after the Closing Date to the extent that such Investments were not made in anticipation of, in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;

(r) Guarantee Obligations of Holdings or any of its Subsidiaries in respect of leases (other than Capitalized Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the Ordinary Course of Business;

(s) Investments made with Qualified Equity Interests of Holdings (or of the Borrowers or any direct or indirect parent company of Holdings after a Qualified IPO of the Borrowers or such parent company as the case may be) to the extent of such Qualified Equity Interests and to the extent not included in the Available Amount and, with respect to any Investments under this clause (s) that are Acquisitions or other acquisitions of the type described in clause (a) of the definition of “Permitted Acquisition”, to the extent the conditions set forth in the definition of “Permitted Acquisition” have been satisfied with respect to any such Investment;

(t) interests in interest rate hedging agreements or currency exchange rate hedging agreements, in each case, entered into in order to hedge interest rate exposure or currency exchange rate exposure, as applicable, and for bona fide and not for speculative purposes;

(u) prepaid expenses or lease, utility and other similar deposits, in each case made in the Ordinary Course of Business;

(v) securities acquired in connection with the satisfaction or enforcement of indebtedness or claims due or owing or as security for any such indebtedness or claim, so long as the same are pledged to the Administrative Agent to secure the Obligations;

(w) accounts receivable owing to Borrower or any Subsidiary in the Ordinary Course of Business or acquired in connection with a Permitted Acquisition or other Investment permitted hereunder to the extent that such accounts receivable were not made or acquired in anticipation of, in contemplation of or in connection with such acquisition, merger or consolidation or Investment and were in existence on the date of such acquisition, merger or consolidation or Investment;

 

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(x) (i) non-cash loans and advances to officers, directors and employees to purchase equity of Holdings or any direct or indirect parent thereof (including through the exercise of options or warrants of Holdings or any direct or indirect parent thereof) and (ii) any cash loans and advances to officers, directors and employees to pay taxes and related expenses associated with the purchase by such employees of equity of Holdings or any direct or indirect parent thereof (including through the exercise of options or warrants of Holdings or any direct or indirect parent thereof) in an aggregate amount not to exceed $2,000,000 plus the Available Amount in the aggregate at any time outstanding for all such cash loans and advances;

(y) (i) reasonable earnest money deposits made in connection with the acquisitions of property and assets not prohibited hereunder and (ii) deposits made in the Ordinary Course of Business securing contractual obligations to the extent constituting a Lien permitted hereunder; and

(z) other Investments by a Loan Party or a Subsidiary in an aggregate amount equal to the Available Amount as of the applicable date of such Investment; provided, that the following conditions are satisfied after giving effect to such Investment: (i) no Event of Default exists or shall immediately result from the making of such Investment, and (ii) the Loan Parties shall be in compliance on a Pro Forma Basis with the covenants set forth in Sections 7.12(a) and (b)  computed as of the last day of the most recently ended Fiscal Quarter for which financial statements have been delivered or were required to be delivered pursuant to Section 6.01(b) .

For purposes of this Section 7.03, the amount of any Investments (other than Permitted Acquisitions) shall be determined net of all actual returns on such Investments, whether as principal, interest, dividends, distributions, proceeds or otherwise (for the avoidance of doubt, other than increases in book value) and loans and advances shall be taken at the principal amount thereof then remaining unpaid, exclusive of any pay in kind or accrued interest or fees thereon.

7.04. Mergers, Dissolutions, Etc .. Merge, dissolve, liquidate, consolidate with or into another Person, except that:

(a) (i) any Subsidiary may merge or consolidate with or liquidate or dissolve into a Loan Party, provided , that , the Loan Party shall be the continuing or surviving Person, and (ii) any Subsidiary that is not a Loan Party may merge into any other Subsidiary that is not a Loan Party, provided , that , when any wholly-owned Subsidiary is merging with another Subsidiary that is not wholly-owned, the wholly-owned Subsidiary shall be the continuing or surviving Person; and

(b) in connection with a Permitted Acquisition, any Subsidiary of a Loan Party may merge with or into or consolidate with any other Person or permit any other Person to merge with or into or consolidate with it; provided , that , (i) the Person surviving such merger shall be a wholly-owned Subsidiary of a Loan Party and (ii) in the

 

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case of any such merger to which any Loan Party is a party, such Loan Party is the surviving Person unless, in the case of each of the foregoing clauses (i) and (ii), the surviving entity has otherwise assumed all obligations of such Loan Party or Subsidiary, as applicable, under the Loan Documents pursuant to documentation reasonably acceptable to Administrative Agent.

7.05. Dispositions . Make any Disposition, except:

(a) Dispositions of Cash Equivalents and Inventory in the Ordinary Course of Business;

(b) (i) Dispositions in the Ordinary Course of Business of property that is obsolete, worn out or no longer useful in the Ordinary Course of Business and (ii) disposition of other assets, in each case for so long as (x) the aggregate fair market value or a book value, whichever is more, of such equipment, fixed assets and other assets does not exceed the greater of (A) $7,500,000 and (B) 15% of Adjusted Consolidated EBITDA for the four Fiscal Quarter period most recently ended as to which financial statements were required to be delivered pursuant to this Agreement, in any twelve-month period and (y) all proceeds thereof are either (A) remitted to Administrative Agent for application to the Obligations in accordance with Section 2.06(b)(ii) if required thereby or (B) to the extent permitted by the Intercreditor Agreement as in effect as of the Closing Date unless any amendment thereto is consented to by the Loan Parties, remitted to the Subordinated Loan Agent for application in accordance with Section 2.06(b)(ii) of the Subordinated Loan Agreement if required thereby;

(c) any Disposition that constitutes (i) an Investment permitted under Section 7.03, (ii) a Lien permitted under Section 7.02, (iii) a merger, dissolution, consolidation or liquidation permitted under Section 7.04, or (iv) a Restricted Payment permitted under Section 7.06;

(d) such Disposition that results from a casualty or condemnation in respect of such property or assets so long as all proceeds thereof are either (A) remitted to Administrative Agent for application to the Obligations in accordance with Section 2.06(b)(ii) if required thereby or (B) to the extent permitted by the Intercreditor Agreement as in effect as of the Closing Date unless any amendment thereto is consented to by the Loan Parties, remitted to the Subordinated Loan Agent for application in accordance with Section 2.06(b)(ii) of the Subordinated Loan Agreement if required thereby;

(e) the sale or discount, in each case without recourse, of accounts receivable arising in the Ordinary Course of Business, but only in connection with the compromise or collection of delinquent accounts or other accounts which, in the applicable Loan Party’s or Subsidiary’s reasonable business judgment, are doubtful of collection,

(f) licenses, sublicenses, leases or subleases granted to third parties in the Ordinary Course of Business;

 

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(g) the lapse, abandonment or other dispositions of Intellectual Property that is, in the reasonable good faith judgment of a Loan Party or Subsidiary, no longer material to the conduct of the business of the Loan Parties or any of their Subsidiaries;

(h) (i) Dispositions among the Loan Parties (other than to Holdings except in respect of dispositions of Equity Interests) or by any Subsidiary to a Loan Party (other than to Holdings except in respect of dispositions of Equity Interests), and (ii) Dispositions by any Subsidiary that is not a Loan Party to another Subsidiary that is not a Loan Party;

(i) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property that is promptly purchased or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property (which replacement property is actually promptly purchased);

(j) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;

(k) the unwinding of any Swap Contract pursuant to its terms;

(l) Foreign Subsidiaries of the Borrowers may sell or dispose of Equity Interests to qualify directors where required by applicable law or to satisfy other requirements of applicable law with respect to the ownership of Equity Interests; and

(m) Permitted Sale Leasebacks.

To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than the Borrowers or any Subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Documents and the Administrative Agent shall be authorized to take and shall take any actions deemed appropriate in order to effect the foregoing.

7.06. Restricted Payments . Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:

(a) each Subsidiary may make Restricted Payments to a Loan Party or a Subsidiary of a Loan Party (other than Holdings except Restricted Payments made to Holdings the proceeds of which are used for Restricted Payments permitted hereunder) and, in connection therewith, on a pro rata basis to any other equity holder of such Subsidiary;

(b) Holdings and each of its Subsidiaries may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;

 

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(c) only if no Event of Default shall have occurred and be continuing, both immediately before or as a result of the making of such Restricted Payment, Holdings may (or may make a Restricted Payment to permit any direct or indirect parent to) purchase, redeem or otherwise acquire shares of its (or of any direct or indirect parent’s) stock or other Equity Interests in connection with customary employee or management agreements, plans or arrangements for future, present or former directors, managers and employees (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees, or distributes of any of the foregoing) of any of the Loan Parties and their Subsidiaries in an amount not to exceed $4,000,000 in the aggregate in any Fiscal Year and $10,000,000 in the aggregate at any time during the term of this Agreement; provided, that 50% of any unused amount (other than any unused carryover amount from the immediately preceding Fiscal Year) in any Fiscal Year shall be permitted to be carried over to the immediately succeeding Fiscal Year, with such amount carried over being deemed to be the first amount expended in the Fiscal Year; provided, further, that cancellation of Indebtedness owing to the Loan Parties (or any direct or indirect parent thereof) or any Subsidiary in connection with the repurchase or Equity Interests or stock hereunder will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;

(d) Restricted Payments by Borrowers to the extent necessary to permit Holdings or any direct or indirect holder of Equity Interests in the Borrowers to pay administrative or corporate costs and expenses related to the business of Borrowers and their Subsidiaries (including administrative, legal, accounting and similar expenses and director or officer indemnification claims of any direct or indirect parent of the Borrowers attributable to the direct or indirect ownership or operations of the Borrowers and their Subsidiaries and franchise or other taxes payable by Holdings or any parent entity of Holdings whose sole material asset consists of the Equity Interests of Holdings (or another similarly situated parent entity thereof) to maintain its corporate existence) in each case, which are incurred in the Ordinary Course of Business;

(e) only if no Event of Default shall have occurred and be continuing, both immediately before or as a result of the making such Restricted Payment, the Loan Parties may make payments of management, consulting, monitoring, transaction and advisory fees to Sponsor or its Affiliates in accordance with the Management Agreement as in effect on the date hereof and the payment of out-of-pocket costs and expenses, reimbursements and indemnification payments thereunder; provided , that if at any time any such fees are not permitted to be paid as a result of the occurrence and continuance of an Event of Default, then (i) such amounts shall continue to accrue (plus accrued interest, if any, with respect thereto), and (ii) any such amounts that have accrued but which were not permitted to be paid may be paid so long as such Event of Default has been waived or cured and no other Event of Default has occurred and is continuing or would immediately result therefrom (it being agreed and understood that out-of-pocket costs and expenses, reimbursements, indemnities and other similar payments may be paid during the continuance of any Event of Default);

(f) Holdings, the Borrowers or any Subsidiary may make distributions which are promptly used by Holdings to satisfy unsecured and non-interest bearing obligations of Holdings arising from the exercise of the Seller Put Option when due; provided, that all of the following conditions have been satisfied:

 

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(i) no Event of Default exists or shall immediately result from the making of such distribution; and

(ii) after giving effect to such distribution, the Loan Parties shall be in compliance on a Pro Forma Basis with the covenants set forth in Sections 7.12(a) and (b)  for the Fiscal Quarter most recently ended as to which financial statements have been delivered or were required to be delivered pursuant to Section 6.01(b) ;

(g) Restricted Payments by Borrowers in an amount sufficient to permit Holdings (or, if applicable, the direct or indirect parent of Holdings that is the parent of the consolidated tax group for which Holdings is a member) to pay consolidated tax liabilities of Holdings and its Subsidiaries relating to the business of Borrowers and Borrowers’ Subsidiaries, in an amount not to exceed the amount of any such Taxes that the Borrowers and their Subsidiaries would have been required to pay on a separate group basis if the Borrowers and such Subsidiaries were the only members of the consolidated tax group, less the amount of any such Taxes that are paid directly by the Borrowers or their Subsidiaries to the relevant Governmental Authority;

(h) Restricted Payments not otherwise permitted above in an amount not in excess of the Available Amount, so long as (i) no Event of Default exists or shall immediately result from the payment of such Restricted Payment, (ii) the Loan Parties shall be in compliance on a Pro Forma Basis with the covenants set forth in Sections 7.12(a) and (b)  for the Fiscal Quarter most recently ended as to which financial statements have been delivered or were required to be delivered pursuant to Section 6.01(b) and (iii) if any such payment shall be funded from amounts derived from clause (a) of the definition of “Available Amount”, after giving effect to such payment, the Consolidated Senior Net Leverage Ratio is not greater than 2.75 to 1.00 on a Pro Forma Basis computed as of the last day of the most recently ended Fiscal Quarter for which financial statements have been delivered or were required to be delivered pursuant to Section 6.01(b) ;

(i) Holdings and the Borrowers may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby;

(j) to the extent constituting Restricted Payments, Holdings, the Borrowers and the Subsidiaries may enter into and consummate transactions expressly permitted to be effected by such Person by any provision of S ection 7.03 , Section 7.04 or Section 7.08 ;

 

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(k) repurchases of Equity Interests in the Ordinary Course of Business in the Borrowers (or any direct or indirect parent thereof) or any Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;

(l) Holdings and its Subsidiaries may make Restricted Payments to any direct or indirect holder of an Equity Interest in the Borrowers:

(i) to finance any Investment permitted to be made pursuant to Section 7.03 ; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) the Borrowers or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrowers or a Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrowers or a Subsidiary in order to consummate such Permitted Acquisition, in each case, in accordance with the requirements of Section 6.12 ; and

(ii) the proceeds of which shall be used to pay customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;

(m) [reserved]; and

(n) the Borrowers or any Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms.

7.07. Change in Nature of Business . Engage in any material line of business other than the Core Business.

7.08. Transactions with Affiliates . Enter into, or suffer to exist, any transaction, arrangement or agreement of any kind with any Affiliate of any Loan Party, other than (a) those described on Schedule 7.08 , as in existence on the date hereof, or any amendment thereto to the extent such an amendment is not adverse to the Administrative Agent and/or the Lenders in any material respect, (b) those expressly permitted by this Agreement and the other Loan Documents, including pursuant to Section 7.06 , (c) transactions between or among Loan Parties, (d) employment and severance agreements and compensation to employees, officers or directors (including stock ownership plans, awards or grants of Equity Interests, employee benefit plans including vacation plans, health and life insurance plans, deferred compensation plans, retirement or savings plans and similar plans), (e) indemnification of officers, directors and employees in the Ordinary Course of Business, (f) transactions between Loan Parties and Subsidiaries that are not Loan Parties and/or any entity that becomes a Subsidiary as a result of such transaction, subject to any limitations set forth herein, (g) others on fair and reasonable terms substantially as favorable to such Loan Party or such Subsidiary as would be obtainable by

 

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such Loan Party or such Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate, (h) the Transaction and the payment of fees and expenses related to the Transaction and (i) the transactions contemplated by the Management Agreement including (but not limited to) payment of fees, expenses, reimbursements and indemnification payments.

7.09. Inconsistent Agreements . Enter into any Contractual Obligation (other than this Agreement or any other Loan Document or any documentation governing Indebtedness permitted to be incurred pursuant to Section 2.18) that (i) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation of such Person; or (ii) limits the ability (A) of any Subsidiary to make Restricted Payments to any Loan Party or to otherwise transfer property to any Loan Party, (B) of any Subsidiary to Guarantee the Indebtedness of any Loan Party or become a direct Borrower hereunder, or (C) of any Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person; provided , however , that this Section 7.09 shall not prohibit limitations:

(a) in respect of any negative pledge incurred or provided in favor of any holder of Indebtedness permitted under Section 7.01(e) or 7.01(u) solely to the extent any such negative pledge relates to the property financed by or the subject of such Indebtedness;

(b) in respect of customary restrictions and conditions contained in any agreement relating to any Disposition not prohibited hereunder (in which case such restrictions or conditions shall relate only to the applicable property) or otherwise relating to a Disposition that is conditioned upon the amendment, restatement or replacement of this Agreement or the repayment in full of amounts owing hereunder;

(c) consisting of restrictions regarding licenses or sublicenses by a Loan Party or a Subsidiary of a Loan Party of Intellectual Property in the Ordinary Course of Business (in which case such restrictions shall relate only to such Intellectual Property);

(d) customary anti-assignment provisions found in Contractual Obligations entered into in the Ordinary Course of Business

(e) in the Subordinated Indebtedness Documents or any documents governing a renewal, extension or refinancing thereof permitted by the terms of the Intercreditor Agreement as in effect as of the Closing Date unless any amendment thereto is consented to by the Loan Parties; and

(f) governing Indebtedness outstanding on the date any Person first becomes a Subsidiary of Holdings (so long as such agreement was not entered into solely in contemplation of such person becoming a Subsidiary of such Person).

7 .10. Reserved.

7.11. Prepayment of Indebtedness; Amendment to Subordinated Indebtedness Documents; Amendment to Organization Documents; Amendment to Management Agreement; Payment of Earnouts and Other Deferred Purchase Price Obligations.

 

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(a) Voluntarily prepay, redeem, purchase, repurchase, defease or otherwise satisfy prior to the scheduled maturity thereof any Indebtedness that is subordinated to any of the Obligations except as set forth in clause (i) or (ii) below, or make any payment in violation of any subordination terms thereof:

(i) Permitted Subordinated Debt Payments, as defined in and solely to the extent permitted under the Intercreditor Agreement (as in effect as of the Closing Date unless any amendment thereto is consented to by the Loan Parties) or payments in respect of Other Subordinated Indebtedness solely to the extent expressly permitted under the intercreditor agreement applicable to, or subordination provisions of, such Other Subordinated Indebtedness; and

(ii) the Borrowers may make prepayments or redemptions in respect of (x) the Subordinated Indebtedness issued pursuant to the Subordinated Indebtedness Documents or (y) any Other Subordinated Indebtedness in each case, in an amount not in excess of the Available Amount, so long as (i) no Event of Default exists or shall immediately result from the prepayment or redemption in respect of such Indebtedness, (ii) the Loan Parties shall be in compliance on a Pro Forma Basis with the covenants set forth in Sections 7.12(a) and (b)  for the Fiscal Quarter most recently ended as to which financial statements were required to be delivered pursuant to this Agreement, (iii) if any such prepayment or redemption shall be funded from amounts derived from clause (a) of the definition of “Available Amount,” after giving effect to such prepayment or redemption, the Consolidated Senior Net Leverage Ratio is not greater than 2.75 to 1.00 on a Pro Forma Basis computed as of the last day of the most recently ended Fiscal Quarter for which financial statements have been delivered or were required to be delivered pursuant to Section 6.01(b) and (iv) not more than $20,000,000 in the aggregate for all such prepayments or redemptions shall be funded from amounts derived from clause (b) of the definition of “Available Amount”.

(b) Amend, modify or change in any manner any term or condition of (i) any Subordinated Indebtedness Document in a manner that violates the Intercreditor Agreement (as in effect as of the Closing Date unless any amendment thereto is consented to by the Loan Parties) or (ii) any other Indebtedness that is subordinated to any of the Obligations in a manner that violates the subordination terms thereof or, to the extent not covered by the applicable subordination terms, is materially adverse to the Lenders.

(c) Amend or otherwise modify any Organization Documents of such Person, except for such amendments or other modifications required by Law or which are not materially adverse to the interests of Administrative Agent or any Lender.

(d) Amend or otherwise modify the Management Agreement or enter into any new or supplemental agreement other than amendments or modifications that are not materially adverse to Administrative Agent or the Lenders (it being understood that in any event no such amendment or modification of the Management Agreement the effect of which is to increase the amount of fees payable pursuant thereto in excess of the amount permitted by Section 7.06(e) shall be permitted absent the prior written consent of the Required Lenders).

 

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(e) Pay, redeem, purchase, repurchase, defease or otherwise satisfy any earnout obligations or other similar deferred purchase price obligations unless all of the following conditions have been satisfied:

(i) no Default or Event of Default exists or shall immediately result from such payment, redemption, purchase, repurchase, defeasement or satisfaction of such obligation; and

(ii) after giving effect to such payment, redemption, purchase, repurchase, defeasement or satisfaction, the Loan Parties shall be in compliance on a Pro Forma Basis with the covenants set forth in Sections 7.12(a) and (b)  for the Fiscal Quarter most recently ended as to which financial statements have been delivered or were required to be delivered pursuant to Section 6.01(b) .

7.12. Financial Covenants.

(a) Consolidated Total Net Leverage Ratio . Permit the Consolidated Total Net Leverage Ratio as of the end of any Measurement Period of Borrowers set forth below to be greater than the ratio set forth below opposite the last day of such Measurement Period:

 

Measurement Period Ending

  

Maximum Consolidated
Total Net Leverage
Ratio

June 30, 2014    7.00 to 1.00
September 30, 2014    7.00 to 1.00
December 31, 2014    7.00 to 1.00
March 31, 2015    6.75 to 1.00
June 30, 2015    6.50 to 1.00
September 30, 2015    6.25 to 1.00
December 31, 2015    6.00 to 1.00
March 31, 2016    6.00 to 1.00
June 30, 2016    5.50 to 1.00
September 30, 2016    5.50 to 1.00
December 31, 2016    5.25 to 1.00
March 31, 2017    5.25 to 1.00
June 30, 2017    5.00 to 1.00
September 30, 2017    5.00 to 1.00
December 31, 2017    4.75 to 1.00
March 31, 2018    4.75 to 1.00
June 30, 2018 and each Fiscal Quarter thereafter    4.50 to 1.00

 

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(b) Consolidated Interest Coverage Ratio . Permit the Consolidated Interest Coverage Ratio as of the end of any Measurement Period of Borrowers set forth below to be less than the ratio set forth below opposite the last day of such Measurement Period:

 

Measurement Period Ending

  

Minimum Consolidated Interest
Coverage Ratio

June 30, 2014    1.80 to 1.00
September 30, 2014    1.80 to 1.00
December 31, 2014    1.90 to 1.00
March 31, 2015    1.90 to 1.00
June 30, 2015    2.00 to 1.00
September 30, 2015    2.00 to 1.00
December 31, 2015    2.15 to 1.00
March 31, 2016    2.15 to 1.00
June 30, 2016    2.25 to 1.00
September 30, 2016    2.25 to 1.00
December 31, 2016    2.40 to 1.00
March 31, 2017    2.45 to 1.00
June 30, 2017    2.50 to 1.00
September 30, 2017    2.50 to 1.00
December 31, 2017    2.65 to 1.00
March 31, 2018    2.65 to 1.00
June 30, 2018 and each Fiscal Quarter thereafter    2.75 to 1.00

7.13. Anti-Terrorism Laws and Foreign Asset Control Regulations . (a) Become a “blocked person” as described in the Executive Order, the Trading With the Enemy Act or the Foreign Assets Control Regulations, (b) knowingly engage in any dealings or transactions, or be otherwise associated, with any such “blocked person” or in any manner violate any such order, or (c) use any part of the proceeds of the Loans for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977.

7.14. Fiscal Year . Change its Fiscal Year end, except in connection with acquisitions to conform new Subsidiaries to the Borrowers’ Fiscal Year.

7.15. Holdings Covenant . Permit Holdings to engage in any business activities or incur any Indebtedness other than (i) acting as a holding company and transactions incidental thereto (including maintain its corporate existence), (ii) entering into the Loan Documents and the transactions required herein or permitted herein to be performed by Holdings (including, for

 

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the avoidance of doubt, until the consummation of the Closing Date Acquisition and the joinder of J.A. Cosmetics pursuant to a Joinder Agreement, acting as the Initial Borrower hereunder), (iii) entering into the agreements related to and consummating the Transactions and the transactions required therein or permitted therein to be performed by Holdings (including the Management Agreement), (iv) receiving and distributing the dividends, distributions and payments permitted to be made to Holdings pursuant to Section 7.06 , (v) entering into engagement letters and similar type contracts and agreements with attorneys, accountants and other professionals (and participating thereunder), (vi) owning the Equity Interests of the Initial Borrower and its Subsidiaries, (vii) issuing Equity Interests as permitted hereunder (including pursuant to a Qualified IPO), (viii) engaging in activities necessary or incidental to any director, officer and/or employee option incentive plan at Holdings, (ix) providing guarantees for the benefit of a Borrower to the extent such Person is otherwise permitted to enter into the transaction under this Agreement (including guaranties of lease obligations), (x) holding nominal deposits in Deposit Accounts in connection with consummating any of the foregoing transactions, (xi) the entering into and performance of obligations under the Subordinated Indebtedness Documents or any other debt documents permitted hereunder to which it is a party or any documents for a refinancing thereof permitted by the Subordination Agreement, (xii) the entering into and performance of the unsecured and non-interest bearing obligations arising from the exercise of the Seller Put Option and (xiii) obligations or activities incidental to the business or activities described in the foregoing clauses (i) to (xii), including providing indemnification of officers, directors, shareholders and employees.

ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES

8.01. Events of Default . Any of the following shall constitute an Event of Default:

(a) Non-Payment . Any Borrower fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within five Business Days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee or other amount payable hereunder or under any other Loan Document; or

(b) Specific Covenants . Any Loan Party fails to perform or observe any term, covenant or agreement contained (i) in any of Sections 6.03 (solely with respect to notices of Events of Default), 6.05(a) (solely with respect to the Loan Parties), 6.07 , 6.10 , 6.16 , 6.18 , or Article VII (subject to Section 8.04 hereof), or (ii) in any of Sections 6.01 , 6.02(a) or 6.02(b) and such failure continues for five (5) or more days; or

(c) Other Defaults . Any Loan Party fails to perform or observe any other term, covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days after the earlier of (i) receipt of notice of such failure by a Responsible Officer of Borrower Agent from Administrative Agent, or (ii) any Responsible Officer of any Loan Party becomes aware of such failure; or

 

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(d) Representations and Warranties . Any representation or warranty made or deemed made by or on behalf of any Loan Party or any Subsidiary herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect (without duplication of other materiality qualifiers contained therein); or

(e) Cross-Default . (i) Any Loan Party or any Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise, and after passage of any grace period) in respect of any Indebtedness or Guarantee having an aggregate principal amount of more than $5,000,000, or (B) fails to observe or perform any other material agreement or condition relating to any such Indebtedness or Guarantee or any other event occurs (other than, with respect to Indebtedness consisting of Swap Contracts, termination events or equivalent events pursuant to the terms of such Swap Contracts), and such event continues for more than the grace period, if any, therein specified, the effect of which is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; provided that this clause (e)(i)(B) shall not apply to Indebtedness that becomes due solely as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness, or (ii) there occurs any “Event of Default” under, and as defined in, the Subordinated Indebtedness Documents;

(f) Insolvency Proceedings, Etc . Any Loan Party or any Subsidiary institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or

(g) [Reserved];

(h) Judgments . There is entered against any Loan Party or any Subsidiary one or more final non-appealable judgments or orders for the payment of money, writs, warrants of attachment or execution or similar process in an aggregate amount exceeding $5,000,000 (except to the extent covered by insurance as to which the insurer does not dispute coverage or third party indemnification reasonably acceptable to Administrative Agent) and such judgments, orders, writs, warrants of attachment or execution or similar process remain unsatisfied, unvacated and unstayed for a period of 60 consecutive days after the entry, issue or levy thereof; or

 

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(i) ERISA . (i) An ERISA Event occurs which, together with any outstanding liability incurred in connection with any other ERISA Event, has resulted in or would have a Material Adverse Effect (ii) the existence of any Lien under Section 430(k) of the Code or Section 303(k) or Section 4068 of ERISA on any assets of a Loan Party or any Subsidiary thereof, (iii) a Loan Party, a Subsidiary thereof or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan and a Material Adverse Effect would result, (iv) the benefit liabilities of any Foreign Plan, at any time exceed all Foreign Plan’s assets, as computed in accordance with applicable law as of the most recent valuation date for such Foreign Plan, such that, when aggregated with such excess for all other Foreign Plans, the aggregate excess equals more than $1,000,000, or (v) any other event occurs or shall occur or exist with respect to a Plan, Foreign Plan, Pension Plan or Multiemployer Plan that results in a Material Adverse Effect; or

(j) Invalidity of Loan Documents . Any material provision of any Loan Document, or any Lien granted thereunder, at any time after its execution and delivery and for any reason, other than as expressly permitted under such Loan Document or upon Payment in Full of all Obligations or as a result of the failure of Administrative Agent or any Lender to take any action within its control, ceases to be in full force and effect (except with respect to immaterial assets); or any Loan Party or any Subsidiary thereof repudiates, challenges or contests in writing the validity or enforceability of any material provision in any Loan Document, any Loan Obligation or any Lien granted to Administrative Agent pursuant to the Security Instruments (including the perfection or priority thereof); or any Loan Party denies that it has any or further liability or obligation under any material provision in any Loan Document, or purports in writing to revoke, terminate or rescind any Loan Document (other than as a result of a payment made hereunder or release expressly permitted hereunder); or

(k) Subordinated Indebtedness . The subordination provisions relating to any Subordinated Indebtedness (the “Subordination Provisions ”) shall fail to be enforceable by Administrative Agent (except to the extent that the Administrative Agent has effectively waived the benefits thereof) in accordance with the terms thereof; or any Loan Party or any Subsidiary thereof (or any representative of the foregoing) shall repudiate, challenge or contest in any manner the effectiveness, validity or enforceability of any of the Subordination Provisions; or

(l) Change of Control . There occurs any Change of Control.

8.02. Remedies Upon Event of Default . If any Event of Default occurs and is continuing, Administrative Agent with the consent of the Required Lenders, may, and at the direction of the Required Lenders shall, take any or all of the following actions: (a) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be

 

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terminated; (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by Borrowers; (c) require that Borrowers Cash Collateralize the L/C Obligations in an amount equal to the Minimum Collateral Amount; and (d) exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable Law; provided , however , that upon the occurrence of Event of Default under clause (f) above, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of Borrowers to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of Administrative Agent or any Lender.

8.03. Application of Funds.

(a) After the exercise of any remedy provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02) , any amounts received on account of the Obligations shall, subject to the provisions of Sections 2.16 and 2.17 , be applied by Administrative Agent in the following order:

First , to all fees, indemnities, expenses and other amounts (including all reasonable fees, charges and disbursements of counsel to Administrative Agent payable pursuant to Section 10.04 and amounts payable under Article III ) due to Administrative Agent in its capacity as such, until paid in full;

Second , to all amounts owing to the Swing Line Lender for outstanding Swing Line Loans until paid in full;

Third , to that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest, fees and other Obligations expressly described in clauses Fourth through Sixth below) payable to the Lenders and the L/C Issuer (including reasonable fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Third payable to them until paid in full;

Fourth , to that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders and the L/C Issuer in proportion to the respective amounts described in this clause Fourth payable to them until paid in full;

Fifth , to (i) that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings and to Cash Collateralize that portion of L/C Obligations comprising the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by Borrowers and (ii) the payment of Credit Product Obligations (provided that

 

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funds from, and proceeds of Collateral owned by, any Person directly or indirectly liable for a Swap Obligation and that was not an “eligible contract participant” as defined in the Commodity Exchange Act at the time such Swap Obligation was incurred may not be used to satisfy such Swap Obligation), ratably among the Lenders, L/C Issuer and the Credit Product Providers in proportion to the respective amounts described in this clause Fifth payable to them until paid in full;

Sixth , to all other Obligations of Borrowers owing under or in respect of the Loan Documents, in each case, that are due and payable to Administrative Agent and the other Lender Parties, or any of them, on such date (provided that funds from, and proceeds of Collateral owned by, any Person directly or indirectly liable for a Swap Obligation and that was not an “eligible contract participant” as defined in the Commodity Exchange Act at the time such Swap Obligation was incurred may not be used to satisfy such Swap Obligation), ratably based on the respective aggregate amounts of all such Obligations owing to Administrative Agent and the other Lender Parties on such date until paid in full; and

Last , the balance, if any, after Payment in Full of the Obligations, to Borrowers or as otherwise required by Law. Notwithstanding the foregoing, amounts received from any Guarantor that is not an “Eligible Contract Participant” (as defined in the Commodity Exchange Act) shall not be applied to the obligations that are Excluded Swap Obligations.

(b) Subject to Sections 2.03(c) and 2.17 , amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. Amounts distributed with respect to any Credit Product Obligations shall be the lesser of (i) the maximum Credit Product Obligations last reported to Administrative Agent or (ii) the actual Credit Product Obligations as calculated by the methodology reported to Administrative Agent for determining the amount due. Administrative Agent shall have no obligation to calculate the amount to be distributed with respect to any Credit Product Obligations, and may request a reasonably detailed calculation of such amount from the applicable Credit Product Provider. The allocations set forth in this Section are solely to determine the rights and priorities of Administrative Agent and Lender Parties as among themselves, and may be changed by agreement among them without the consent of any Borrower. This Section is not for the benefit of or enforceable by any Loan Party.

(c) For purposes of Section 8.03(a) , “paid in full” of a type of Obligation means payment in cash or immediately available funds of all amounts owing on account of such type of Obligation, including interest accrued after the commencement of any insolvency proceeding, default interest, interest on interest, and expense reimbursements, irrespective of whether any of the foregoing would be or is allowed or disallowed in whole or in part in any proceeding under Debtor Relief Laws but, excluding contingent indemnification obligations for which no claim has been asserted.

8.04. Equity Cure Right . In the event Borrowers fail to comply with the financial covenants set forth in Section 7.12, subject to the terms and conditions hereof, Holdings shall have the right (the “ Cure Right ”) after the first day of the applicable Fiscal Quarter for which such covenants are then being tested until the expiration of the 10th Business Day subsequent to

 

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the date the applicable financial statements are required to be delivered to Administrative Agent with respect thereto (the “ Cure Period ”), to issue Permitted Cure Securities for cash or otherwise receive, as additional paid in capital, cash common equity contributions, in either case in an aggregate amount equal to, but not greater than, the amount necessary to cure all relevant financial covenants (including, without limitation all relevant financial covenants contained in the Subordinated Loan Agreement) (hereinafter, the “ Cure Amount ”), and upon the receipt by any Borrower of the cash proceeds thereof, the financial covenants shall then be recalculated giving effect to the following pro forma adjustments: (a) Adjusted Consolidated EBITDA shall be increased for the applicable Fiscal Quarter and for the subsequent three (3) consecutive Fiscal Quarters, solely for the purpose of measuring compliance with the financial covenants and not for any other purpose under this Agreement or any other Loan Document (including, without limitation, calculating basket levels), by an amount equal to the Cure Amount contributed by Holdings to the Borrowers; and (b) if, after giving effect to the foregoing recalculations, Borrowers shall then be in compliance with the requirements of all financial covenants, Borrowers shall be deemed to have been in compliance with such financial covenants as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach, Default or Event of Default of such financial covenants that had occurred shall be deemed not to have occurred for all purposes of this Agreement. In the event that (i) no Event of Default exists other than that arising due to failure of the Loan Parties to comply with the financial covenants set forth in Section 7.12 or the failure to deliver a notice of Default in respect thereof), and (ii) until the expiration of the Cure Period, then neither Administrative Agent nor any Lender shall exercise any remedies set forth in Section 8.02 hereof or under any Loan Document until after the Borrowers’ ability to cure has lapsed and the Borrowers have not exercised such Cure Right. Notwithstanding anything herein to the contrary, in no event shall Holdings or Borrowers be permitted to exercise the Cure Right hereunder (x) more than 5 times in the aggregate during the term of this Agreement or (y) more than 2 times in any 4 consecutive Fiscal Quarters.

ARTICLE IX

ADMINISTRATIVE AGENT

9.01. Appointment and Authority; Limitations on Lenders . Each of the Lenders and the L/C Issuer hereby irrevocably appoints BMO to act on its behalf as Administrative Agent hereunder and under the other Loan Documents and authorizes Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of Administrative Agent, the Lenders and the L/C Issuer, except for a Borrower’s consent right as expressly permitted in Section 9.06 and no Loan Party shall have rights as a third party beneficiary of any of such provisions (although each Loan Party shall be bound by such provisions). Administrative Agent shall be authorized to determine whether any conditions to funding any Loan or to issuance of a Letter of Credit have been satisfied. Each of the Lenders and the L/C Issuer hereby acknowledges and confirms that it has received a copy of the Intercreditor Agreement and hereby agrees to be bound by the provisions thereof. Actions taken by Administrative Agent hereunder, under the other Loan Documents or upon the instructions of Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as Administrative Agent shall believe in good faith shall be necessary), shall be binding upon each Lender.

 

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Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against Borrowers or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and the L/C Issuer; provided , however , that the foregoing shall not prohibit (a) Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the L/C Issuer from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.13) , or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Borrower under any Debtor Relief Law; and provided , further , that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b) , (c)  and (d)  of the preceding proviso and subject to Section 2.13 , any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.

9.02. Rights as a Lender . The Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Loan Parties or any Subsidiary or other Affiliate thereof as if such Person were not Administrative Agent hereunder and without any duty to account therefor to the Lenders.

9.03. Exculpatory Provisions . Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, Administrative Agent:

(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing;

(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, and shall not be required to take any action that, in its opinion may expose Administrative Agent to liability or that is contrary to any Loan Document or applicable law; and

(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Affiliates that is communicated to or obtained by Administrative Agent or any of its Affiliates in any capacity.

 

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Administrative Agent shall not be liable for any action taken (including any apportionment or distribution of payments) or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of its own bad faith, gross negligence or willful misconduct. Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice describing such Default or Event of Default is given to Administrative Agent by Borrower Agent, a Lender or the L/C Issuer. Administrative Agent shall have no obligation to take any action if it believes, in good faith, that such action would violate applicable Law or expose Administrative Agent to any liability for which it has not received satisfactory indemnification in accordance with the provisions of this Agreement.

Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to Administrative Agent.

9.04. Reliance by Administrative Agent . Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or made by the proper Person. Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless Administrative Agent shall have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. Administrative Agent may consult with legal counsel (who may be counsel for Borrowers), independent accountants and other experts selected by it.

9.05. Delegation of Duties . Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by Administrative Agent. Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.

 

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9.06. Resignation of Administrative Agent . Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer and Borrower Agent. Upon receipt of any such notice of resignation, the Required Lenders shall have the right to appoint a successor which shall be a Lender or a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States and which shall, so long as no Event of Default under Section 8.01(a) of 8.01(f) shall have occurred and be continuing, be reasonably acceptable to the Borrower Agent. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C Issuer appoint a successor Administrative Agent meeting the qualifications set forth above which shall, so long as no Event of Default under Section 8.01(a) of 8.01(f) shall have occurred and be continuing, be reasonably acceptable to the Borrower Agent. The Lenders, L/C Issuer and the Loan Parties hereby agree that notwithstanding anything herein to the contrary the Administrative Agent has the right to resign (and such resignation shall be effective) concurrently with the closing of a purchase and sale transaction pursuant to Section 24 of the Intercreditor Agreement. If the Administrative Agent resigns and no successor is appointed, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) all payments, communications and determinations provided to be made by, to or through Administrative Agent shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between Borrowers and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.

Any resignation by BMO as Administrative Agent pursuant to this Section shall also constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers and privileges and duties of the retiring L/C Issuer and Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.

 

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9.07. Non-Reliance on Administrative Agent and Other Lenders . Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and the L/C Issuer also acknowledges that it will, independently and without reliance upon Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

9.08. No Other Duties, Etc . Anything herein to the contrary notwithstanding, none of the Bookrunners or Arrangers or Agents (other than Administrative Agent) listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as Administrative Agent, a Lender or the L/C Issuer hereunder.

9.09. Administrative Agent May File Proofs of Claim; Credit Bidding . In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Administrative Agent shall have made any demand on Borrowers) shall be entitled and empowered, by intervention in such proceeding or otherwise (a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuer and Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and Administrative Agent) allowed in such judicial proceeding; and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments to Administrative Agent and, in the event that Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent under Section 10.04(c) .

 

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The Loan Parties and the Lender Parties hereby irrevocably authorize Administrative Agent, based upon the instruction of the Required Lenders, to (a) credit bid and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Section 363 of the Bankruptcy Code or any similar Laws in any other jurisdictions to which a Loan Party is subject, or (b) credit bid and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any other sale or foreclosure conducted by (or with the consent or at the direction of) Administrative Agent (whether by judicial action or otherwise) in accordance with applicable Law. In connection with any such credit bid and purchase, the Obligations owed to the Lender Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims being estimated for such purpose if the fixing or liquidation thereof would not unduly delay the ability of Administrative Agent to credit bid and purchase at such sale or other disposition of the Collateral and, if such claims cannot be estimated without unduly delaying the ability of Administrative Agent to credit bid, then such claims shall be disregarded, not credit bid, and not entitled to any interest in the asset or assets purchased by means of such credit bid) and the Lender Parties whose Obligations are credit bid shall be entitled to receive interests (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) in the asset or assets so purchased (or in the Equity Interests of the acquisition vehicle or vehicles that are used to consummate such purchase). Except as provided above and otherwise expressly provided for herein or in the other Security Instruments, Administrative Agent will not execute and deliver a release of any Lien on any Collateral. Upon request by Administrative Agent or Borrowers at any time, the Lender Parties will confirm in writing Administrative Agent’s authority to release any such Liens on particular types or items of Collateral pursuant to this Section 9.09 .

9.10. Collateral Matters . The Lender Parties irrevocably authorize Administrative Agent, at its option and in its discretion, (a) to release any Lien on any Collateral (i) upon the occurrence of the Facility Termination Date, (ii) at the time the property that is subject to such Lien is Disposed or to be Disposed as part of or in connection with any Disposition permitted hereunder or under any other Loan Document, or (iii) subject to Section 10.01, if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders or (iv) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guarantee pursuant to clause (c) or (d) below; (b) (i) to subordinate any Lien on any property granted to or held by Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted under Section 7.02(i) and (ii) that the Administrative Agent is authorized to release or subordinate any Lien on any property granted to or held by the Administrative Agent in accordance with the terms of the Security Agreement; and (c) to release any Borrower or any Subsidiary from its obligations under the Loan Documents (and all Liens granted by such Borrower or Subsidiary) if such Person ceases to be a Borrower or a Subsidiary as a result of a transaction permitted hereunder. Upon request by Administrative Agent at any time, the Required Lenders will confirm in writing Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under the Loan Documents pursuant to this Section 9.10 . In each case as specified in this Section 9.10, each Lender irrevocably authorizes the Administrative Agent to, at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release or subordination of such item of Collateral from the assignment and security interest granted under the Security Instruments, or to evidence the release of such Guarantor from its obligations under the Guarantee, in each case in accordance with the terms of the Loan Documents and this Section 9.10

 

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9.11. Other Collateral Matters.

(a) Care of Collateral . Administrative Agent shall have no obligation to assure that any Collateral exists or is owned by a Loan Party, or is cared for, protected or insured, nor to assure that Administrative Agent’s Liens have been properly created, perfected or enforced, or are entitled to any particular priority, nor to exercise any duty of care with respect to any Collateral.

(b) Lenders as Agent For Perfection by Possession or Control . Administrative Agent and Lender Parties appoint each Lender as agent (for the benefit of Lender Parties) for the purpose of perfecting Liens in any Collateral held or controlled by such Lender, to the extent such Liens are perfected by possession or control. If any Lender obtains possession or control of any Collateral, it shall notify Administrative Agent thereof and, promptly upon Administrative Agent’s request, deliver such Collateral to Administrative Agent or otherwise deal with it in accordance with Administrative Agent’s instructions.

9.12. Right to Perform, Preserve and Protect . The obligations of the Administrative Agent under the Loan Documents are only those expressly set forth therein. Without limiting the generality of the foregoing, the Administrative Agent shall not be required to take any action hereunder with respect to any Default or Event of Default, except as expressly provided herein. Upon the occurrence and during the continuation of an Event of Default, the Administrative Agent shall take such action to enforce its Lien on the Collateral and to preserve and protect the Collateral as may be directed by the Required Lenders. Unless and until the Required Lenders give such direction, the Administrative Agent may take (but shall not be obligated to take or refrain from taking) such actions as it deems appropriate and in the best interest of all the Lenders and L/C Issuer. Any instructions of the Required Lenders, or of any other group of Lenders called for under the specific provisions of the Loan Documents, shall be binding upon all the Lenders and the holders of the Obligations. Each Lender agrees to reimburse Administrative Agent and each of its Related Persons (to the extent not reimbursed by any Loan Party) promptly upon demand, severally and ratably, for any costs and expenses (including fees, charges and disbursements of financial, legal and other advisors paid in the name of, or on behalf of, any Loan Party) that may be incurred by Administrative Agent or any of its Related Persons in connection with the preparation, execution, delivery, administration, modification, consent, waiver or enforcement of, or the taking of any other action (whether through negotiations, through any work out, bankruptcy, restructuring or other legal or other proceeding (including without limitation, preparation for and/or response to any subpoena or request for document production relating thereto) or otherwise) in respect of, or legal advice with respect to, its rights or responsibilities under, any Loan Document.

9.13. Credit Product Providers and Credit Product Arrangements .

(a) Each Credit Product Provider, by delivery of a notice to Administrative Agent of the creation of a Credit Product Arrangement, agrees to be bound by Section 8.03 and this Article IX . Each Credit Product Provider shall indemnify Administrative Agent (and any sub-agent thereof) and each Related Party thereof (each a “ Credit Product Indemnitee ”) against, and hold harmless each such Credit Product Indemnitee from, any and all losses, claims, damages, liabilities and related expenses

 

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(including the reasonable fees, charges and disbursements of any counsel), incurred by any such Credit Product Indemnitee or asserted against any Credit Product Indemnitee by any third party or by Borrowers or any other Loan Party arising out of, in connection with, or as a result of such provider’s Credit Product Obligations.

(b) Except as otherwise expressly set forth herein, no Credit Product Provider that obtains the benefit of the provisions of Section 8.03 , any Guarantee or any Collateral by virtue of the provisions hereof or any other Loan Document shall have any voting rights or right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise (including with respect to the release or impairment of any Collateral or notice of or consent to any amendment, waiver or modification of the provisions hereof or of any other Loan Document) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Credit Product Arrangements in respect of any Payment in Full of the Obligations or the Facility Termination Date.

9.14. Designation of Additional Agents. The Administrative Agent, subject to the consent of the Borrowers (not to be unreasonably withheld), shall have the continuing right, for purposes hereof, at any time and from time to time to designate one or more of the Lenders (and/or its or their Affiliates) as “syndication agents,” “documentation agents,” “joint book runners,” “joint lead arrangers,” “joint arrangers” or other designations for purposes hereto, but such designation shall have no substantive effect, and such Lenders and their Affiliates shall have no additional powers, duties or responsibilities as a result thereof.

9.15. Authorization to Enter into Intercreditor Agreement . Each Lender hereby irrevocably appoints, designates and authorizes Administrative Agent to enter into the Intercreditor Agreement on its behalf and to take such action on its behalf under the provisions of any such agreement. Each Lender further agrees to be bound by the terms and conditions of the Intercreditor Agreement. In the event of any specific conflict or inconsistency between the provisions of Intercreditor Agreement and this Agreement, the provisions of Intercreditor Agreement shall control. Each Lender hereby authorizes and directs Administrative Agent to issue blockage notices in connection with the Subordinated Indebtedness at the direction of Administrative Agent or the Required Lenders.

ARTICLE X

MISCELLANEOUS

10.01. Amendments, Etc . Except as provided with respect to any Increase or as otherwise specifically provided herein, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by Borrowers, Borrower Agent or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and Borrowers, the applicable Borrower or the applicable Loan Party, as the case may be, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided , however , that no such amendment, waiver or consent shall (with respect to clauses (b) and (c) below, only the consent of the Lenders specified therein and not the Required Lenders is required):

 

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(a) extend or increase the Commitment of a Lender (or reinstate any Commitment terminated pursuant to Section 8.02 ) without the written consent of such Lender (it being understood that a waiver of any condition precedent in Section 4.01 or Section 4.02 of this Agreement or the waiver of any covenant, Default, Event of Default or mandatory prepayment or reductions shall not constitute an increase of any Commitment of a Lender);

(b) postpone any date fixed by this Agreement or any other Loan Document for any payment (but excluding the delay or waiver of any mandatory prepayment) of principal, interest, fees or other amounts due to a Lender (or any of them), including the Revolving Credit Maturity Date or the Term Loan Maturity Date, or any scheduled reduction of the Commitments hereunder or under any other Loan Document, in each case without the written consent of such Lender directly affected thereby;

(c) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01 ) any fees or other amounts payable hereunder or under any other Loan Document, without the written consent of such Lender directly affected thereby; provided , however , that only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” (so long as such amendment does not result in the Default Rate being lower than the interest rate then applicable to Base Rate Loans or Eurodollar Rate Loans, as applicable) or to waive any obligation of Borrowers to pay interest or Letter of Credit Fees at the Default Rate; provided , further , that any waiver of Default or Event of Default or default interest, waiver of a mandatory prepayment or any modification, waiver or amendment to the financial covenant definitions or any component thereof in this Agreement shall not constitute a reduction or forgiveness in the interest rates or the fees or premiums for purposes of this clause (c );

(d) change the provisions requiring pro rata payments to the Lenders set forth herein without the written consent of each Lender directly affected thereby;

(e) change any provision of this Section or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender;

(f) release any Borrower or any Guarantor from this Agreement without the written consent of each Lender, except to the extent such Person is the subject of a Disposition permitted by Section 7.05 (in which case such release may be made by Administrative Agent acting alone); or

 

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(g) release all or substantially all of the Collateral without the written consent of each Lender except with respect to Dispositions and releases of Collateral permitted or required hereunder (including pursuant to Section 7.05) or as provided in the other Loan Documents (in which case such release may be made by Administrative Agent acting alone);

and, provided further , that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by Administrative Agent in addition to the Lenders required above, affect the rights or duties of Administrative Agent under this Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the respective parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.

If any Lender does not consent (a “ Non-Consenting Lender ”) to a proposed amendment, waiver, consent or release with respect to any Loan Document that requires the consent of each Lender or any class of Lenders and that has been approved by the Required Lenders, Borrowers may replace such Non-Consenting Lender in accordance with Section 10.13 ; provided that such amendment, waiver, consent or release can be effected as a result of the assignment contemplated by such Section (together with all other such assignments required by Borrowers to be made pursuant to this paragraph).

Notwithstanding the terms of this Agreement or any amendment, waiver, consent or release with respect to any Loan Document, Non-Consenting Lenders shall not be entitled to receive any fees or other compensation paid to the Lenders in connection with any amendment, waiver, consent or release approved in accordance with the terms of this Agreement by the Required Lenders.

In addition, notwithstanding anything to the contrary in this Agreement, including this Section 10.01 , this Agreement and the other Loan Documents may be amended (or amended and restated) by the Administrative Agent, the Borrowers and the Lenders providing the applicable Credit Extension to increase the Term Loan Facility or the Revolving Credit Facility, in each case pursuant to Section 2.18 hereof and (a) to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement (including the rights of the Lenders to share ratably in prepayments following any such increase to the Term Loan Facility or the Revolving Credit Facility), the Security Agreement and the other Loan Documents with the Loans and the accrued interest and fees in respect thereof, (b) to include appropriately the Lenders holding such credit facility in any determination of the Required Lenders and (c) to amend other provision of the Loan Documents so that such increase to the Term Loan Facility or the Revolving Credit Facility pursuant to Section 2.18 are appropriately incorporated herein (including this Section 10.01 ).

 

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In addition, notwithstanding anything to the contrary in this Agreement, this Agreement and the other Loan Documents may be amended (or amended and restated) with the written consent of Administrative Agent, the Borrowers and the Required Lenders to (a) add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the outstanding principal and accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement (including the rights of the Lenders to share ratably in prepayments following any such addition of an additional credit facility), the Security Agreement and the other Loan Documents with the Loans and the accrued interest and fees in respect thereof, (b) include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and (c) to amend other provision of the Loan Documents so that such additional credit facilities are appropriately incorporated herein (including this Section 10.01 ).

In addition, notwithstanding anything to the contrary herein, this Agreement, (a) the Borrower Agent may by written notice to the Administrative Agent, make one or more offers (each, an “ Extension Offer ”) to all the Lenders holding Term Loans with a like maturity date or all Revolving Lenders having Revolving Credit Commitments with a like commitment termination date (each Loan or Commitment subject to such an Extension Offer, an “ Extension Request Class ”) to make one or more Extension Permitted Amendments pursuant to procedures specified by the Borrowers. Such notice shall set forth (i) the terms and conditions of the requested Extension Permitted Amendment and (ii) the date on which such Extension Permitted Amendment is requested to become effective (which shall not be less than 5 Business Days after the date of such notice, unless otherwise reasonably agreed to by the Administrative Agent). Extension Permitted Amendments shall become effective only with respect to the Loans and Commitments of the Lenders of the Extension Request Class that accept the applicable Extension Offer (such Lenders, the “ Extending Lenders ”) and, in the case of any Extending Lender, only with respect to such Lender’s Loans and Commitments of such Extension Request Class as to which such Lender’s acceptance has been made; and (b) an Extension Permitted Amendment shall be effected pursuant to an Extension Agreement executed and delivered by the Borrowers, each applicable Extending Lender and the Administrative Agent. No consent of any Lender or the Administrative Agent shall be required to effectuate any Extension Offer, other than (A) the consent of each Lender agreeing to such Extension Offer with respect to its Term Loans and/or Revolving Credit Commitment (or a portion thereof) and (B) with respect to any Extension of the Revolving Credit Commitments, the consent of the L/C Issuer and Swing Line Lender, which consent shall not be unreasonably withheld or delayed. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Extension Agreement. Each Extension Agreement may, without the consent of any Lender other than the applicable Extending Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrowers, to give effect to the provisions of this paragraph of Section 10.01 , including any amendments necessary to treat the applicable Loans and/or Commitments of the Extending Lenders as a new “tranche” of loans and/or commitments hereunder; provided that, in the case of any Extension Offer relating to Revolving Credit Commitments or Revolving Loans, (A) except

 

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as otherwise agreed by each L/C Issuer, the allocation of the participation exposure with respect to any then-existing or subsequently issued Letter of Credit as between the commitments of such new “tranche” and the remaining Revolving Credit Commitments shall be made on a ratable basis as between the commitments of such new “tranche” and the remaining Revolving Credit Commitments and (B) except as otherwise agreed by each L/C Issuer, the Revolving Credit Termination Date, as such term is used in reference to Letters of Credit of such L/C Issuer, may not be extended without the prior written consent of such L/C Issuer. With respect to all extensions consummated by Borrowers pursuant hereto, (i) such extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 2.06(a) or (b)  and (ii) no Extension Offer is required to be in any minimum amount or any minimum increment; provided that Borrower Agent may at its election specify as a condition to consummating any such extension that a minimum amount (to be determined and specified in the relevant Extension Offer in Borrower Agent’s sole discretion and may be waived by Borrower Agent) of Term Loans or Revolving Credit Commitments (as applicable) of any or all applicable tranches be tendered. For the avoidance of doubt, Lenders holding Extended Loans or Extended Commitments of the same tranche may elect to have payments made to them on a non-pro rata basis to effectuate the extended terms of such Extended Loans or Extended Commitments of the same tranche.

In addition, notwithstanding anything to the contrary contained in Section 10.01 , if the Administrative Agent and the Borrowers shall have jointly identified an obvious error or any error, defect or omission of a technical or immaterial nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and the Borrowers shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document.

10.02. Notices; Effectiveness; Electronic Communication.

(a) Notices Generally . Except in the case of notices and other communications expressly permitted to be given by telephone or in the case of notices otherwise expressly provided herein (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier or email (including as a .pdf or .tif file) as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:

if to a Loan Party, Administrative Agent, the L/C Issuer or the Swing Line Lender, to the address, telecopier number, electronic mail address or telephone number specified for such Person below, as changed pursuant to subsection (d) below:

 

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            (i)    If to Administrative Agent,    Bank of Montreal
   Swing Line Lender or L/C    111 West Monroe
   Issuer:    Chicago, Illinois 60603
      Attention: ###
      Facsimile No.: ###
      Telephone No. ###
      Email: ###
   With a copy to:    Katten Muchin Rosenman LLP
      525 West Monroe Street, Suite 1900
      Chicago, Illinois 60661
      Attention: ###
      Facsimile No.: ###
      Telephone No. ###
      Email: ###
            (ii)    If to a Loan Party:    J.A. Cosmetics US, Inc., as Borrower Agent
      10 West 33 rd Street, Suite 802
      New York, NY 10001
      Attention: ###
      Facsimile No.: ###
      Telephone No.: ###
      Email: ###
   With a copy to:    TPG Growth
      345 California Street, Suite 3300
      San Francisco, CA 94104
      Attention: ###
      Facsimile No.: ###
      Telephone No.: ###
      Email: ###
   With a copy to:    TPG Growth
      345 California Street, Suite 3300
      San Francisco, CA 94104
      Attention: ###
      Facsimile No.: ###
      Telephone No.: ###
      Email: ###

 

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   With a copy to:    Kirkland & Ellis LLP
      333 S. Hope Street
      Los Angeles, CA 90071
      Attention: ###
      Facsimile No.: ###
      Telephone No. ###
      Email: ###

if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire, as changed pursuant to subsection (d) below (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to Loan Parties).

Notices sent by hand or overnight courier service or by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not sent during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).

(b) Electronic Communications . Notices and other communications to the Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. Administrative Agent or Borrowers may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.

Unless Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed to have been given when sent; provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed given to the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

(c) The Platform . Each Loan Party hereby acknowledges that Administrative Agent and/or the Arranger will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of Borrowers hereunder (collectively, “ Borrower Materials ”) by posting Borrower Materials on SyndTrak,

 

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IntraLinks or another similar electronic system (the “ Platform ”). THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH BORROWER MATERIALS OR THE PLATFORM. In no event shall Administrative Agent or any of its Related Parties (collectively, the “ Agent Parties ”) have any liability to any Borrower, any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of a Borrower’s or Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided , however , that in no event shall any Agent Party have any liability to any Borrower, any Lender, the L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).

(d) Change of Address, E tc . Each of Borrowers, Administrative Agent, the L/C Issuer and the Swing Line Lender may change its address, telecopier number, electronic mail address or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier number, electronic mail address or telephone number for notices and other communications hereunder by notice to Borrower Agent, Administrative Agent, the L/C Issuer and the Swing Line Lender. In addition, each Lender agrees to notify Administrative Agent from time to time to ensure that Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.

(e) Reliance by Administrative Agent, L/C Issuer and Lenders . Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of Borrowers even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. All telephonic notices to and other telephonic communications with Administrative Agent may be recorded by Administrative Agent, and each of the parties hereto hereby consents to such recording.

10.03. No Waiver; Cumulative Remedies . No failure by any Lender, the L/C Issuer or Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or

 

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partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

10.04. Expenses; Indemnity; Damage Waiver.

(a) Costs and Expenses . Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses of the Administrative Agent and the Arranger incurred on or after the Closing Date (promptly following a written demand therefor, together with backup documentation supporting such reimbursement request) associated with the syndication of the Facilities and the preparation, execution, delivery and administration of the Loan Documents and any amendment or waiver with respect thereto (but limited, in the case of legal fees and expenses, to the reasonable and documented fees, disbursements and other charges of one counsel to the Administrative Agent and the Arranger taken as a whole, one regulatory counsel and, if necessary, of one local counsel in each relevant jurisdiction) and (ii) after the Closing Date, upon presentation of a summary statement, together with any supporting documentation reasonably requested by the Borrowers, all reasonable and documented out-of-pocket expenses of the Administrative Agent and the Lenders promptly following a written demand therefor (but limited, in the case of legal fees and expenses, to the reasonable and documented fees, disbursements and other charges of one counsel to the Administrative Agent and the Lenders taken as a whole, and, if necessary, of one local counsel to the Administrative Agent and the Lenders taken as a whole in each relevant jurisdiction and solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction to each group of affected Lenders similarly situated taken as a whole) in connection with the enforcement of the Loan Documents or protection of rights thereunder; provided that the foregoing indemnity will not apply to expenses (i) to the extent resulting from the willful misconduct, bad faith or gross negligence of Administrative Agent or any Lender, (ii) to the extent arising from a material breach of the obligations by Administrative Agent or any Lender under the Loan Documents (in the case of each of preceding clauses (i) and (ii), as determined by a court of competent jurisdiction in a final judgment) or (iii) to the extent arising from any dispute solely among Administrative Agent and any Lenders or among Lenders, other than any claims against any Administrative Agent in such capacity or any Lender in its capacity or in fulfilling its role as an administrative agent or arranger or any similar role under any Facility and other than any claims arising out of any act or omission on the part of any Loan Party or its Affiliates (as determined by a court of competent jurisdiction in a final judgment).

(b) Indemnification by Loan Parties . The Loan Parties shall indemnify Administrative Agent, the Arranger, each Issuing Bank and the Lenders and their respective affiliates, and each Related Party (each such Person being called an “ Indemnitee ”) against, and hold them harmless from and against all costs and expenses (including, any and all losses, claims, damages, liabilities and related expenses (including the reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel for the Indemnitees taken as a whole (absent an actual conflict of interest in which case affected Persons may engage and be reimbursed for one additional counsel

 

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for each such group of affected Indemnitees similarly situated taken as a whole), and, if reasonably necessary, a single local counsel for all Indemnitees taken as a whole in each relevant jurisdiction and, solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction to each group of affected Indemnitees similarly situated taken as a whole)), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by Borrowers or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby or, in the case of Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration and enforcement of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by any Loan Party or any of its Subsidiaries, or any Environmental Liability related in any way to any Loan Party or any of its Subsidiaries, (iv) any claims of, or amounts paid by Administrative Agent to, a Controlled Account Bank or other Person which has entered into a control agreement with Administrative Agent hereunder or (v) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party, the Sponsor or any of its Affiliates or by Borrowers or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or expenses (w) result from any settlement of any claim, litigation, investigation or proceeding without the consent of the Loan Parties (such consent not to be unreasonably withheld, conditioned or delayed), (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith, willful misconduct or material breach of the Loan Documents of or by any Indemnitee or any of its Related Parties or (y) any dispute solely among any Indemnitees (other than claims of an Indemnitee against Administrative Agent, in its capacity as such or any Lender in its capacity or fulfilling its role as an arranger or any similar role under the Loan Documents and other than any claims arising out of any act or omissions on the part of any Loan Party or any of its Affiliates (as determined by a court of competent jurisdiction by final judgment). No Indemnitee, Loan Party or any Subsidiary of a Loan Party or Related Party of a Loan Party or a Subsidiary of a Loan Party shall have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). For the avoidance of doubt, this Section 10.04(b) shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim. Notwithstanding the foregoing, each Indemnitee shall be obligated to refund and return promptly to the applicable Borrower, Holdings, Sponsor or Affiliate any and all amounts paid by any Borrower, Holdings, the Sponsor or any of their Affiliates under this clause

 

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(b) to such Indemnitee for any such fees, expenses or damages to the extent such Indemnitee is not entitled to payment of such amounts in accordance with the terms hereof. The Loan Parties shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement of any pending or threatened claim, litigation, investigation or proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless such settlement (i) includes an unconditional release of such Indemnitee in form and substance reasonably satisfactory to such Indemnitee (which approval shall not be unreasonably withheld or delayed) from all liability on claims that are the subject matter of such claim, litigation, investigation or proceeding and (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of such Indemnitee.

(c) Reimbursement by Lenders . To the extent that (i) the Loan Parties for any reason fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it, or (ii) any liabilities, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever are imposed on, incurred by, or asserted against, Administrative Agent, the L/C Issuer or a Related Party in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted to be taken by Administrative Agent, the L/C Issuer or a Related Party in connection therewith, then, in each case, each Lender severally agrees to pay to Administrative Agent (or any such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on such Lender’s portion of Loans, commitments and risk participations with respect to the Revolving Credit Facility) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity; and provided , further , that , the obligation of the Lenders to so indemnify shall not be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Administrative Agent, L/C Issuer or Related Party. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d) .

(d) Waiver of Consequential Damages, Etc . To the fullest extent permitted by applicable law, no party or Indemnitee shall assert, and each hereby waive any claim against any other party, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.

 

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(e) Payments . All amounts due under this Section shall be payable not later than 20 Business Days after demand therefor.

(f) Survival . The agreements in this Section shall survive the resignation of Administrative Agent, the L/C Issuer and the Swing Line Lender, the replacement of any Lender and the occurrence of the Facility Termination Date.

10.05. Marshalling; Payments Set Aside . None of Administrative Agent or Lenders shall be under any obligation to marshal any assets in favor of any Loan Party or against any Obligations. To the extent that any payment by or on behalf of any Loan Party is made to a Lender Party, or a Lender Party exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Lender Party in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The obligations of the Lenders and the L/C Issuer under clause (b)  of the preceding sentence shall survive the occurrence of the Facility Termination Date.

10.06. Successors and Assigns.

(a) Successors and Assigns Generally . The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that unless in connection with a transaction permitted by Section 7.04 , an Investment permitted hereunder to the extent the surviving or succeeding Person or assignee, as applicable, of such Investment has assumed all obligations of such Loan Party under the Loan Documents pursuant to documentation reasonably acceptable to Administrative Agent, or Permitted Acquisition and in accordance with the requirements thereof, no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to any Person (other than any of the Persons described in Subsection (b)(iv) of this Section) in accordance with the provisions of subsection (b) of this Section (such an assignee, an “ Eligible Assignee ”), (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void), (iv) to Sponsor or any Affiliate of Sponsor (other than a Debt Fund Affiliate) (each an “ Affiliated Lender ” and collectively the “ Affiliated

 

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Lenders ”) in accordance with the provisions of subsection (g) of this Section or (v) in the case of any Eligible Assignee that, immediately prior to or upon giving effect to such assignment, is a Debt Fund Affiliate, subsection (h). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Lender Parties) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b) Assignments by Lenders . Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment(s) and the Loans (including for purposes of this Section 10.06(b) , participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:

(i)  Minimum Amounts .

(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment under any Facility and the Loans at the time owing to it under such Facility or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and

(B) in any case not described in subsection (b)(i)(A) of this Section or in Section 10.06(g) , the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $1,000,000, in the case of any assignment in respect of the Revolving Credit Facility or Term Loan Facility or any Increase, unless such assignment is made to an existing Lender or an Affiliate or Approved Fund of any existing Lender, such assignment is of the assigning Lender’s entire interest in such facility or each of Administrative Agent and, so long as no Event of Default under Section 8.01(a) , 8.01(b) (solely with respect to the failure to perform or comply with Section 7.12 ) or 8.01(f) has occurred and is continuing, Borrower Agent otherwise consents (each such consent not to be unreasonably withheld or delayed); provided , however , that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single assignee (or to an assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.

 

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(ii) Required Consents . No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:

(A) the consent of Borrower Agent (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default under Section 8.01(a) , 8.01(b) (solely with respect to the failure to perform or comply with Section 7.12 ) or 8.01(f) has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that Borrower Agent shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to Administrative Agent within ten (10) Business Days after having received notice thereof; provided , further , that the Borrower Agent’s consent shall be required with respect to any assignment to a Disqualified Institution notwithstanding the existence of an Event of Default under Section 8.01(a) , 8.01(b) (solely with respect to a failure to perform or comply with Section 7.12 ) or 8.01(f) and Borrower Agent’s refusal to consent to an assignment to any Disqualified Institution (to the extent such consent is required) shall not be deemed to be unreasonable;

(B) the consent of Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (i) any Term Loan Commitment (excluding pursuant to Section 2.18 ), Revolving Credit Commitment or Revolving Loan if such assignment is to a Person that is not a Lender with a Commitment or Loan in respect of the applicable Facility, an Affiliate of such Lender or an Approved Fund with respect to such Lender or (ii) any Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund except for any assignments pursuant to Section 10.06(g) or (h)  hereof;

(C) the consent of the L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding) or assignments in respect of any Revolving Credit Commitment or Revolving Loan if such assignment is to a Person that is not a Lender with a Revolving Credit Commitment, an Affiliate of such Lender or an Approved Fund with respect to such Lender; and

(D) the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of the Revolving Credit Facility.

 

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(iii) Assignment and Assumption . The parties to each assignment shall execute and deliver to Administrative Agent an Assignment and Assumption, together with (except for any assignments pursuant to Section 10.06(g) hereof) a processing and recordation fee in the amount of $3,500; provided , however , that Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment and provided, further, that such fee shall not be payable in connection with an assignment to an Affiliate of a Lender or an Approved Fund. The assignee, if it is not a Lender, shall deliver to Administrative Agent an Administrative Questionnaire.

(iv) No Assignment to Certain Persons . No such assignment shall be made to (A) Sponsor, any Affiliate of Sponsor, any Borrower or any of a Borrower’s Affiliates or Subsidiaries (except as provided in subsection (g) or (h) of this Section), (B) any holder of the Subordinated Indebtedness, (C) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (C), (D) a natural person or (E) without Borrower Agent’s consent, any Disqualified Institution.

(v) Certain Additional Payments . In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of Borrower Agent and Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

Subject to acceptance and recording thereof by Administrative Agent in the Register pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01 , 3.04 , 3.05 and 10.04 with respect to facts and circumstances occurring prior to the effective date of

 

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such assignment). Upon request, each Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.06(d) ; provided that an assignment or transfer not in compliance with Section 10.06(b)(iv) shall be void and of no force or effect.

(c) Register . Administrative Agent, acting solely for this purpose as a non-fiduciary agent of Borrowers (in such capacity, subject to Section 10.17 ), shall maintain at Administrative Agent’s Office in the U.S. a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts and stated interest of the Loans and Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”). The entries in the Register shall be conclusive, and Borrowers, Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. In addition, Administrative Agent shall maintain on the Register information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender. The Register shall be available for inspection by Borrower Agent at any reasonable time and from time to time upon reasonable prior notice. In addition, at any time that a request for a consent for a material or substantive change to the Loan Documents is pending, any Lender may request and receive from Administrative Agent a copy of the Register.

(d) Participations . Any Lender may at any time, without the consent of, or notice to, any Borrower or Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender, Sponsor, any Affiliate of Sponsor, a Borrower or any of Borrowers’ Affiliates or Subsidiaries (except as provided in subjection (g) or (h) of this Section) or a Disqualified Institution) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Revolving Credit Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) Borrowers, Administrative Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, Borrowers agree that each Participant shall be entitled to the benefits of Sections 3.01 , 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. Each Participant agrees to be subject to Section 10.07 as though it were a Lender. Each Lender granting a

 

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participation shall as a non-fiduciary agent of the Borrowers maintain in the U.S. a register (“ Participation Register ”) with respect to the ownership and transfer of each participation containing the information set forth in the Register described in Section 10.06(c) . No Lender shall have any obligation to disclose all or any portion of the Participation Register (including any such portion containing the identity of any Participant or any information relating to a Participant’s interest in any rights or obligations under this Agreement) to any Person except to the extent that such disclosure is necessary to establish that the Loans or other rights or obligations under this Agreement are in registered form under Section 5f.103-1(c) or Section 1.871-14(c) of the Treasury Regulations. The entries in the Participation Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participation Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participation Register.

(e) Limitations upon Participant Rights . A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless Borrower Agent is notified of the participation sold to such Participant and such Participant agrees, for the benefit of Borrowers, to comply with Section 3.01(e) as though it were a Lender.

(f) Certain Pledges . Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(g) Assignments to Sponsor . Subject to clauses (A), (B) and (C) below, any Lender may assign all or a portion of the Term Loan (subject to the limitations contained in Sections 10.06(b)(i) ) to the Sponsor or any of its Affiliates (excluding Holdings and its Subsidiaries), without the consent of any Person but subject to acknowledgment by the Administrative Agent; provided that (i) the assigning Lender and the assignee shall execute and deliver to the Administrative Agent an Assignment and Assumption, (ii) at no time may the aggregate principal amount of the Term Loan held by the Sponsor and its Affiliates (other than Holdings and its Subsidiaries and Debt Fund Affiliates) exceed 25% of the aggregate principal amount of the Term Loans and incremental term loans then outstanding, and (iii) after giving effect to an assignment the number of Sponsor and its Affiliates (other than Debt Fund Affiliates) holding the Term Loans and incremental term loans shall not constitute 50% or more of the aggregate number of Lenders holding a portion of the Term Loans and incremental term loans at the time of such assignment.

 

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(A) Notwithstanding anything to the contrary in this Section 10.06 , but subject to the rights contained in clause (C) below, the Sponsor and its Affiliates shall not have any right to (1) attend (including by telephone or electronic means) any meeting or discussions (or portion thereof) among the Administrative Agent and any Lender to which representatives of the Sponsor, the Borrowers or the Guarantors are not invited, or (2) receive any information or material prepared by the Administrative Agent or any Lender or any communication by or among the Administrative Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Sponsor, the Borrowers or the Guarantors or their representatives.

(B) Notwithstanding anything to the contrary in this Section 10.06 or the definition of “Required Lenders”, for purposes of determining whether the Required Lenders have (1) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Borrower or any Guarantor therefrom, (2) otherwise acted on any matter related to any Loan Document, or (3) directed or required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, the Sponsor and its Affiliates (other than Holdings and its Subsidiaries) shall be deemed, to the extent not adversely affecting the Sponsor and its Affiliates (other than Holdings and its Subsidiaries) disproportionately as compared to other Lenders, to have voted its interest as a Lender without discretion in the same proportion as the allocation of voting with respect to such matter by Lenders who are not Sponsor or any of its Affiliates; provided that no amendment, modification, waiver, consent or other action with respect to any Loan Document shall deprive the Sponsor and its Affiliates of its pro rata share of any payments to which the Sponsor or such Affiliate is entitled under the Loan Documents or any vote which affects the Sponsor and its Affiliates disproportionately without the Sponsor or the applicable Affiliate providing its consent; and in furtherance of the foregoing, (x) the Sponsor and each of its Affiliates agrees to execute and deliver to the Administrative Agent any instrument reasonably requested by the Administrative Agent to evidence the voting of its interest as a Lender in accordance with the provisions of this Section 10.06(g) ; provided that if the Sponsor or such Affiliate fails to promptly execute such instrument such failure shall in no way prejudice any of the Administrative Agent’s rights under this paragraph and (y) the Administrative Agent is hereby appointed (such appointment being coupled with an interest) by the Sponsor and its Affiliates as each such Person’s attorney in fact, with full authority in the place and stead of such Person and in the name of such Person, from time to time in the Administrative Agent’s reasonable discretion to take any action and to execute and instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this Section 10.06(g)

 

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and (ii) Sponsor and its Affiliates in their capacities as a Lender shall retain the right to consent to an extension of the maturity date of their Term Loans, reduction in the principal amount of their Term Loans, reduction in the interest rate thereof or postponement of the scheduled due date therefor). Sponsor or its Affiliates may, with the consent of Borrower Agent and pursuant to documentation reasonably satisfactory to the Administrative Agent, contribute the Term Loans held by them as an equity contribution to the Borrowers (whether through any of its direct or indirect parent companies or otherwise) in exchange for debt or equity securities of the Borrowers or such parent company that are otherwise permitted to be issued by such Person at such time. If any Borrower or any Guarantor is the subject of any proceeding under any Debtor Relief Laws no Affiliated Lender shall (i) vote in opposition to a plan of reorganization of such Borrower or Guarantor that has been approved by all Lenders (exclusive of all Affiliated Lenders) unless such plan of reorganization affects such Affiliated Lender in its capacity as a Lender in a disproportionately adverse manner than its effect on other Lenders or (ii) vote in favor of any plan of reorganization of such Borrower or Guarantor that has not been approved by Lenders (exclusive of all Affiliated Lenders) holding a majority of the outstanding principal amount of the Loans (exclusive of the amount held by all Affiliated Lenders).

(C) The Sponsor or any of its Affiliates (other than Holdings and its Subsidiaries), in its capacity as a Lender of a portion of the Term Loan, in its sole and absolute discretion and with Borrower Agent’s consent, may, but is not required to, make one or more capital contributions or assignments of the portion of the Term Loan that it acquires in accordance with this Section 10.06 to Holdings solely in exchange for equity interests of Holdings upon no less than 3 Business Days’ prior written notice to the Administrative Agent. Immediately upon the acquisition by Holdings of such portion of the Term Loan, it shall transfer such portion to the Borrowers. Immediately upon any Borrower or any of a Borrower’s Subsidiaries’ acquisition of any portion of the Term Loan, (x) such portion of the Term Loan and all rights and obligations as a Lender related thereto shall for all purposes (including under this Agreement, the other Loan Documents and otherwise) be deemed to be irrevocably prepaid, terminated, extinguished, cancelled and of no further force and effect and such Borrower or such Borrower’s Subsidiary shall neither obtain nor have any rights as a Lender hereunder or under the other Loan Documents by virtue of such capital contribution or assignment and (y) Borrowers shall deliver to the Administrative Agent a written acknowledgement and agreement executed by a Responsible Officer and in form and substance reasonably acceptable to the Administrative Agent acknowledging the irrevocable prepayment, termination, extinguishment and cancellation of such portion of the Term Loan and confirming that such Borrowers have no rights as a Lender under this Agreement, the other Loan Documents or otherwise. The

 

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parties hereto agree that any prepayment, termination, extinguishment and/or cancellation of any Loans as contemplated by this Section 10.06 shall be disregarded for purposes of calculating each of Adjusted Consolidated EBITDA and Excess Cash Flow for any applicable period of calculation.

(h) Although Debt Fund Affiliates shall be Eligible Assignees and shall not be subject to the provisions of Section 10.06(g) , any Lender may, at any time, assign all or a portion of its rights and obligations with respect to Term Loans under this Agreement to a Person who is or will become, after such assignment, a Debt Fund Affiliate only through (x) Dutch auctions or other offers to purchase or take by assignment open to all Lenders on a pro rata basis in accordance with procedures of the type described in Section 2.19 (for the avoidance of doubt, without requiring any representation as to the possession of material non-public information by such Affiliate) or (y) open market purchase on a non-pro rata basis. Notwithstanding anything in Section 10.01 or the definition of “Required Lenders” to the contrary, for purposes of determining whether the Required Lenders have (i) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom, (ii) otherwise acted on any matter related to any Loan Document or (iii) directed or required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, all Term Loans, Revolving Credit Commitments and Revolving Loans held by Debt Fund Affiliates, in the aggregate, may not account for more than 49.9% of the amounts (including the amounts of Term Loans, Revolving Credit Commitments and Revolving Loans) included in determining whether applicable Lenders have consented to any action pursuant to Section 10.01 .

(i) Electronic Execution of Assignments . The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

(j) Resignation as L/C Issuer and/or Swing Line Lender after Assignment . Notwithstanding anything to the contrary contained herein, if at any time BMO assigns all of its Revolving Credit Commitment or Revolving Loans pursuant to subsection (b) above, such Person may, (i) upon 30 days’ notice to Borrower Agent and the Lenders, resign as L/C Issuer and/or (ii) in the case of BMO, upon 30 days’ notice to Borrower Agent, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer, or Swing Line Lender, Borrower Agent shall be entitled to appoint from among the Lenders willing to serve in such capacity a successor L/C Issuer or Swing Line Lender hereunder, as the case may be; provided , however , that no failure by Borrower Agent to appoint any such successor shall affect the resignation of such Person as L/C Issuer or

 

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Swing Line Lender, as the case may be. If BMO resigns as L/C Issuer, such Person shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c) ). If BMO resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c) . Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of such L/C Issuer with respect to such Letters of Credit.

10.07. Treatment of Certain Information; Confidentiality . Each of the Lender Parties agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, trustees, officers, employees, agents, advisors and representatives on a “need to know” basis (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process (in which case such Lender Party agrees to use commercially reasonable efforts (to the extent permitted by law and practical to do so) to notify the Borrower Agent promptly thereof), (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to a written agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to Borrowers and their obligations, (g) with the consent of Borrower Agent or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Lender Parties or any of their respective Affiliates on a nonconfidential basis from a source other than the Loan Parties other than as a result of a breach of any duty of confidentiality.

For purposes of this Section, “ Information ” means all information received from Sponsor, any Loan Party or any Subsidiary relating to a Loan Party or any Subsidiary or any of their respective businesses, other than any such information that is available to any Lender Party on a nonconfidential basis prior to disclosure by a Loan Party or any Subsidiary, provided that, in the case of information received from Sponsor, a Loan Party or any Subsidiary after the date

 

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hereof, any information not marked “PUBLIC” at the time of delivery will be deemed to be confidential; provided , that any information marked “PUBLIC” may also be marked “Confidential”. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information but in any event a reasonable level.

Each of the Lender Parties acknowledges that (a) the Information may include material non-public information concerning a Loan Party or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including Federal and state securities Laws.

The Administrative Agent may publish the name and logo of any Loan Party and the amount of the credit facility provided hereunder in any “tombstone” or comparable advertisement which Administrative Agent elects to publish provided the Loan Parties consent in advance in writing to the publication of such tombstone or other advertising materials by the Administrative Agent. Administrative Agent reserves the right to provide to industry trade organizations information necessary and customary for inclusion in league table measurements.

10.08. Right of Setoff . If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, only after obtaining the prior written consent of Administrative Agent, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency but other than any Excluded Accounts) at any time held and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of any Loan Party against any and all of the obligations of Borrowers now or hereafter existing under this Agreement or any other Loan Document to such Lender or the L/C Issuer, but only to the extent then due and owing; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to Administrative Agent for further application in accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify Borrower Agent and Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.

10.09. Interest Rate Limitation . Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “ Maximum Rate ”). If Administrative Agent or any Lender shall receive interest in an amount that exceeds

 

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the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to Borrowers. In determining whether the interest contracted for, charged, or received by Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

10.10. Counterparts; Integration; Effectiveness . This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Subject to Section 4.01 , this Agreement shall become effective when it shall have been executed by Administrative Agent and when Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement and each other Loan Document by telecopy or other electronic means (including .pdf or .tif files) shall be effective as delivery of a manually executed counterpart of this Agreement.

10.11. Survival . All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Lender Parties, regardless of any investigation made by any Lender Party or on their behalf and notwithstanding that any Lender Party may have had notice or knowledge of any Default or Event of Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Loan Obligation (other than contingent indemnification obligations for which no claim has been asserted) hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.

Further, the provisions of Sections 3.01 , 3.04 , 3.05 , 10.02 , 10.03 , 10.04 , 10.05 , 10.06 , 10.09 , 10.10 , 10.11 , 10.12 , 10.14 , 10.15 , 10.16 , 10.17 and 10.18 shall survive and remain in full force and effect regardless of the repayment of the Obligations, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.

10.12. Severability . If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this

 

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Section 10.12 , if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by Administrative Agent, the L/C Issuer or the Swing Line Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.

10.13. Replacement of Lenders . If any Lender requests compensation under Section 3.04 , if Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 , if any Lender is a Defaulting Lender, or if any Lender fails to approve any amendment, waiver or consent requested by Borrower Agent pursuant to Section 10.01 that has received the written approval of not less than the Required Lenders but also requires the approval of such Lender, then in each such case Borrower Agent may, at its sole expense and effort, upon notice to such Lender and Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06 ), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:

(a) Borrower Agent shall have paid to Administrative Agent the assignment fee specified in Section 10.06(b) ;

(b) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05 ) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or Borrower Agent (in the case of all other amounts);

(c) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01 , such assignment will result in a reduction in such compensation or payments thereafter;

(d) in the case of any such assignment resulting from the refusal of a Lender to approve a requested amendment, waiver or consent, the Person to whom such assignment is being made has agreed to approve such requested amendment, waiver or consent; and

(e) such assignment does not conflict with applicable Laws.

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrowers to require such assignment and delegation cease to apply. Subject to the immediately preceding sentence, any assignment or delegation made in compliance with this Section 10.13 should nonetheless be effective for all purposes hereunder and under the Loan Documents, regardless of whether a Lender being replaced fails to execute and deliver any documents in connection therewith.

 

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10.14. Governing Law; Jurisdiction; Etc.

(a) GOVERNING LAW . THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

(b) SUBMISSION TO JURISDICTION . EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST BORROWERS OR THEIR PROPERTIES IN THE COURTS OF ANY JURISDICTION.

(c) WAIVER OF VENUE . EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

(d) SERVICE OF PROCESS . EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02 . NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

 

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10.15. Waiver of Jury Trial . EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

10.16. USA PATRIOT Act Notice . Each Lender that is subject to the USA PATRIOT Act and Administrative Agent (for itself and not on behalf of any Lender) hereby notifies Borrowers that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies Borrowers, which information includes the name and address of Borrowers and other information that will allow such Lender or Administrative Agent, as applicable, to identify Borrowers in accordance with the USA PATRIOT Act.

10.17. No Advisory or Fiduciary Responsibility . In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Lender Parties are arm’s-length commercial transactions between each Loan Party, on the one hand, and the Lender Parties, on the other hand, (B) each Loan Party has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) each Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each Lender Party is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for any Loan Party or any of its Affiliates or any other Person and (B) no Lender Party has any obligation to any Loan Party or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents, (iii) the Lender Parties may be engaged in a broad range of transactions that involve interests that differ from those of the Loan Parties and their Affiliates, and no Lender Party has any obligation to disclose any of such interests to any Loan Party or its Affiliates and (iv) the Lender Parties have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and each of the Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. To the fullest extent permitted by law, each Loan Party hereby waives and releases any claims that it may have against any Lender Party with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

 

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10.18. Attachments . Any exhibits, schedules and annexes attached to this Agreement are incorporated herein and shall be considered a part of this Agreement for the purposes stated herein; except, that, in the event of any conflict between any of the provisions of such exhibits and the provisions of this Agreement, the provisions of this Agreement shall prevail.

ARTICLE XI

CONTINUING GUARANTEE

11.01. Guarantee .

(a) Holdings and each Subsidiary Guarantor hereby absolutely and unconditionally guarantees, as a guarantee of payment and performance and not merely as a guarantee of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all of the Secured Obligations, whether for principal, interest, premiums, fees, indemnities, damages, costs, expenses or otherwise, of Borrowers to the Lender Parties, arising hereunder or under any other Loan Document (including all renewals, extensions, amendments, refinancings and other modifications thereof and all costs, attorneys’ fees and expenses incurred by the Lender Parties in connection with the collection or enforcement thereof, subject to the limitations set forth in Section 10.04(a) hereof).

(b) Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Loan Party to honor all of its obligations under this Guarantee in respect of Swap Obligations; provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 11.01(b) for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 11.01(b) , or otherwise hereunder, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section 11.01(b) shall remain in full force and effect until Payment in Full of the Obligations. Each Qualified ECP Guarantor intends that this Section 11.01(b) constitute, and this Section 11.01(b) shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

11.02. Rights of Lenders . Holdings and each Subsidiary Guarantor consents and agrees that the Lender Parties may, at any time and from time to time, and without affecting the enforceability or continuing effectiveness hereof and subject only to the terms of this Agreement: (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time for payment or the terms of the Loan Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any security for the payment of this Guarantee or any Secured Obligations; (c) apply such security and direct the order or manner of sale thereof as Administrative Agent, the L/C Issuer and the Lenders in their sole discretion may determine in accordance with the terms of the Loan Documents; and (d) release or substitute one or more of any endorsers or other guarantors of any of the Loan Obligations. Without limiting the generality of the foregoing, Holdings and each Subsidiary Guarantor

 

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consents to the taking of, or failure to take, any action which might in any manner or to any extent vary the risks of Holdings or any Subsidiary Guarantor under this Guarantee or which, but for this provision, might operate as a discharge of Holdings or any Subsidiary Guarantor.

11.03. Certain Waivers .

(a) Holdings and each Subsidiary Guarantor waives, to the fullest extent permitted by law, (i) any defense arising by reason of any disability or other defense of any Borrower or any other Guarantor, or the cessation from any cause whatsoever (including any act or omission of any Lender Party) of the liability of Borrowers; (ii) any defense based on any claim that Holdings’ or any Subsidiary Guarantor’s obligations exceed or are more burdensome than those of any Borrower; (iii) the benefit of any statute of limitations affecting Holdings’ or any Subsidiary Guarantor’s liability hereunder; (iv) any right to require any Lender Party to proceed against any Borrower, proceed against or exhaust any security for the Secured Obligations, or pursue any other remedy in the power of any Lender Party whatsoever; (v) any benefit of and any right to participate in any security now or hereafter held by any Lender Party; and (vi) to the fullest extent permitted by law, any and all other defenses (other than a defense of payment in full) or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties. Holdings and each Subsidiary Guarantor expressly waives, to the fullest extent permitted by law, all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Secured Obligations, and all notices of acceptance of this Guarantee or of the existence, creation or incurrence of new or additional Secured Obligations, except as otherwise expressly set forth in this Agreement.

(b) Holdings and each Subsidiary Guarantor agrees that its obligations hereunder are absolute and unconditional, irrespective of (i) the genuineness, validity, regularity, enforceability, subordination or any future modification of, or change in, any Loan Obligations or Loan Document, or any other document, instrument or agreement to which any Borrower or other Loan Party is or may become a party or be bound; (ii) the absence of any action to enforce this Agreement (including this Section) or any other Loan Document, or any waiver, consent or indulgence of any kind by Administrative Agent or any Lender with respect thereto; (iii) the existence, value or condition of, or failure to perfect a Lien or to preserve rights against, any security or guarantee for the Loan Obligations or any action, or the absence of any action, by Administrative Agent or any Lender in respect thereof (including the release of any security or guarantee); (iv) the insolvency of any Borrower or any other Loan Party; (v) any election by Administrative Agent or any Lender in proceeding under Debtor Relief Laws for the application of Section 1111(b)(2) of the Bankruptcy Code; (vi) any borrowing or grant of a Lien by any Borrower or other Loan Party, as debtor-in-possession under Section 364 of the Bankruptcy Code or otherwise; (vii) the disallowance of any claims of Administrative Agent or any Lender against any Borrower for the repayment of any Obligations under Section 502 of the Bankruptcy Code or otherwise; or (viii) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, except defense of payment in full.

 

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(c) Holdings and each Subsidiary Guarantor expressly waives, to the fullest extent permitted by law, all rights that it may have now or in the future under any statute, at common law, in equity or otherwise, to compel Administrative Agent or Lenders to marshal assets or to proceed against any Borrower, or any other Person or security for the payment or performance of any Secured Obligations before, or as a condition to, proceeding against Holdings or such Subsidiary Guarantor. Holdings and each Subsidiary Guarantor waives, to the fullest extent permitted by law, all defenses available to a surety, guarantor or accommodation co-obligor other than defense of payment in full. It is agreed among Holdings and each Subsidiary Guarantor, Administrative Agent and Lenders that the provisions of this Article XI are essential to the transaction contemplated by the Loan Documents and that, but for such provisions, Administrative Agent and Lenders would decline to make Loans and issue Letters of Credit. Holdings and each Subsidiary Guarantor acknowledges that its guarantee pursuant to this Section is necessary to the conduct and promotion of its business, and can be expected to benefit such business.

(d) Administrative Agent and Lenders may, in their discretion, pursue such rights and remedies as they deem appropriate, including realization upon Collateral by judicial foreclosure or non-judicial sale or enforcement, without affecting any rights and remedies under this Article XI . If, in taking any action in connection with the exercise of any rights or remedies, Administrative Agent or any Lender shall forfeit any other rights or remedies, including the right to enter a deficiency judgment against any Loan Party or other Person, whether because of any applicable Laws pertaining to “election of remedies” or otherwise, Holdings and each Subsidiary Guarantor consents to such action and waives any claim based upon it, even if the action may result in loss of any rights of subrogation that Holdings or any Subsidiary Guarantor might otherwise have had. Any election of remedies that results in denial or impairment of the right of Administrative Agent or any Lender to seek a deficiency judgment against any Borrower shall not impair Holdings’ and each Subsidiary Guarantor’s obligation to pay the full amount of the Loan Obligations.

11.04. Obligations Independent . The obligations of Holdings and each Subsidiary Guarantor hereunder are those of primary obligor, and not merely as surety, and are independent of the Loan Obligations and the obligations of any other guarantor, and a separate action may be brought against Holdings and each Subsidiary Guarantor to enforce this Guarantee whether or not any Borrower or any other person or entity is joined as a party.

11.05. Subrogation . Neither Holdings nor any Subsidiary Guarantor shall exercise any right of subrogation or similar rights with respect to any payments it makes under this Guarantee until the Facility Termination Date. If any amounts are paid to Holdings or any Subsidiary Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Lender Parties and shall forthwith be paid to Administrative Agent for the benefit of the Lender Parties to reduce the amount of the Secured Obligations, whether matured or unmatured.

 

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11.06. Termination; Reinstatement . This Guarantee is a continuing and irrevocable guarantee of all Secured Obligations now or hereafter existing and shall remain in full force and effect until the Facility Termination Date (or, as to any applicable Guarantor, until the sale or Disposition of such Guarantor in a transaction permitted hereunder). Notwithstanding the foregoing, this Guarantee shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of a Borrower or Holdings or any Subsidiary Guarantor is made, or any of the Lender Parties exercises its right of setoff, in respect of the Secured Obligations and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by any of the Lender Parties in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had not occurred and whether or not the Lender Parties are in possession of or have released this Guarantee and regardless of any prior revocation, rescission, termination or reduction. The obligations of Holdings and each Subsidiary Guarantor under this paragraph shall survive termination of this Guarantee.

11.07. Subordination . If the Required Lenders so request after the occurrence and during the continuance of any Event of Default, any such obligation or indebtedness of any Borrower owing to Holdings or any Subsidiary Guarantor, whether now existing or hereafter arising, including but not limited to any obligation of any Borrower to Holdings or any Subsidiary Guarantor as subrogee of the Lender Parties or resulting from Holdings’ or any Subsidiary Guarantor’s performance under this Guarantee (and, in each case, the payment thereof), shall be subordinated to the Payment in Full of the Obligations and shall be enforced and performance received by Holdings or any Subsidiary Guarantor as trustee for the Lender Parties and the proceeds thereof shall be paid over to the Administrative Agent to be applied to the Secured Obligations, but without reducing or affecting in any manner the liability of Holdings or any Subsidiary Guarantor under this Guarantee.

11.08. Condition of Borrowers . Holdings and each Subsidiary Guarantor acknowledges and agrees that it has the sole responsibility for, and has adequate means of, obtaining from each Borrower and any other guarantor such information concerning the financial condition, business and operations of Borrowers and any such other guarantor as Holdings and each Subsidiary Guarantor requires, and that none of the Lender Parties has any duty, and neither Holdings nor any Subsidiary Guarantor is relying on the Lender Parties at any time, to disclose to Holdings or any Subsidiary Guarantor any information relating to the business, operations or financial condition of Borrowers or any other guarantor (Holdings and each Subsidiary Guarantor waiving any duty on the part of the Lender Parties to disclose such information and any defense relating to the failure to provide the same).

11.09. Limitation of Liability . Notwithstanding any provision of this Article XI to the contrary, it is intended that the provisions of this Article XI not constitute a “Fraudulent Conveyance” (as defined below). Consequently, each Lender Party and Loan Party agrees that if the provisions of this Article XI, or any Liens securing the obligations and liabilities arising pursuant to this Article XI, would, but for the application of this sentence, constitute a Fraudulent Conveyance, this Agreement and each such Lien shall be valid and enforceable only to the maximum extent that would not cause such provisions or such Lien to constitute a Fraudulent Conveyance, and such provisions shall automatically be deemed to have been amended

 

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accordingly at all relevant times. For purposes hereof, “ Fraudulent Conveyance ” means a fraudulent conveyance or fraudulent transfer under Section 548 of the Bankruptcy Code or a fraudulent conveyance or fraudulent transfer under the provisions of any applicable fraudulent conveyance or fraudulent transfer law or similar law of any Governmental Authority as in effect from time to time.

[Remainder of page is intentionally left blank; signature pages follow.]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

INITIAL BORROWER :
J.A. COSMETICS HOLDINGS, INC., a Delaware corporation
By:  

/s/ Frank Pisani

Name:   Frank Pisani
Title:   Vice President

Credit Agreement


ADMINISTRATIVE AGENT :
BANK OF MONTREAL, as Administrative Agent
By:  

/s/ Tara Cuprisin

Name:   Tara Cuprisin
Title:   Director

Credit Agreement


LENDERS :
BANK OF MONTREAL, as a Lender, an L/C Issuer and Swing Line Lender
By:  

/s/ Tara Cuprisin

Name:   Tara Cuprisin
Title:   Director

Credit Agreement


LENDERS (cont’d) :
JEFFERIES FINANCE LLC, as a Lender
By:  

/s/ Brian Buoye

Name:   Brian Buoye
Title:   Managing Director

Signature Page to Credit Agreement


LENDERS (cont’d):
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By:  

/s/ Karen D. Myers

Name:   Karen D. Myers
Title:   Senior Vice President

Signature Page to Credit Agreement


LENDERS (cont’d):
Ally Commercial Finance LLC, as a Lender
By:  

/s/ George Grieco

Name:   George Grieco
Title:   Senior Managing Director

Signature Page to Credit Agreement


Exhibit A

Form of Committed Loan Notice

Date:                            ,             

 

To: Bank of Montreal, as Administrative Agent for the Lenders parties to the Credit Agreement dated as of January 31, 2014 (as extended, renewed, modified, supplemented, amended or restated from time to time, the “ Credit Agreement ”), by and among J.A. Cosmetics Holdings, Inc., a Delaware corporation (“ Holdings ”), as the initial borrower (the “ Initial Borrower ” each of the Initial Borrower, and each Domestic Subsidiary of Initial Borrower who hereafter becomes a “Borrower” under the Credit Agreement pursuant to a Joinder Agreement, are referred to herein individually as a “ Borrower ” and collectively as the “Borrowers”), the Guarantors party thereto, certain Lenders which are signatories thereto, and Bank of Montreal, as Administrative Agent. Capitalized terms used herein but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Credit Agreement.

Ladies and Gentlemen:

    [The undersigned refers to the Credit Agreement, the terms defined therein being used herein as therein defined, and hereby gives you notice irrevocably, pursuant to Section 2.02 of the Credit Agreement, of a Borrowing requested by                                    1 and, in connection therewith, sets forth the following information:

1. The Business Day of the proposed Borrowing is                          ,              .

2. The aggregate amount of the proposed Borrowing is $                          .

3. The aggregate principal amount of requested Revolving Loans is $                      , of which $                      consists of [Base Rate Loans] and $                      consists of [ Eurodollar Rate Loans ] having an initial Interest Period of                  months.

4. The aggregate principal amount of Term Loans is $                  , of which $                  consists of [Base Rate Loans] and $                  consists of [Eurodollar Rate Loans] having an initial Interest Period of                  months.]

[The undersigned refers to the Credit Agreement, the terms defined therein being used herein as therein defined, and hereby gives you notice irrevocably, pursuant to Section 2.02 of the Credit Agreement, of the [conversion] [continuation] of the Loans specified herein, that:

1. The conversion/continuation Date is                          ,              .

2. The aggregate amount of the [Revolving] [Term] Loans to be [converted] [continued] is $              .

 

1   Include relevant Borrower.

 


3. The Loans are to be [converted into] [continued as] [Eurodollar] [Base Rate] Loans.

4. [If applicable:] The duration of the Interest Period for the [Revolving] [Term] Loans included in the [conversion] [continuation] shall be                  months.]

[The undersigned hereby certifies that the following statements will be true on the date of the proposed [Borrowing][continuation], immediately before and after giving effect thereto and to the application of the proceeds therefrom:

(a) the representations and warranties of the Loan Parties contained in Article V of the Credit Agreement or any other Loan Document are true and correct in all material respects (or in all respects for such representations and warranties that are by their terms already qualified as to materiality) on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are be true and correct in all material respects (or in all respects for such representations and warranties that are by their terms already qualified as to materiality) as of such earlier date; and

(b) no Default or Event of Default (or solely with respect to any proposed Increase of the Term Loans or any Increase pursuant to which any incremental term facilities are provided, no Specified Event of Default) has occurred and is continuing or would immediately result from such proposed Credit Extension.] 2

 

[J.A. COSMETICS HOLDINGS, INC.]/[J.A. COSMETICS US, INC.], a Delaware corporation 3
By    
  Name                                                                                       
  Title                                                                                          

 

2   Certification not required if this Committed Loan Notice is being submitted only in connection with the conversion of Loans to the other Type or a continuation of Eurodollar Rate Loans.
3   Prior to the consummation of the Closing Date Acquisition and the joinder by J.A. Cosmetics US, Inc., as a Borrower pursuant to a Joinder Agreement, J.A. Cosmetics Holdings, Inc. will be the signatory hereto. Upon the consummation of the Closing Date Acquisition and the joinder by J.A. Cosmetics US, Inc., as a Borrower pursuant to a Joinder Agreement, J.A. Cosmetics US, Inc. will be the signatory hereto.

 


Exhibit B

Form of Swing Line Loan Notice

                                  , 201   

 

To: Bank of Montreal, as Administrative Agent for the Lenders parties to the Credit Agreement dated as of January 31, 2014 (as extended, renewed, modified, supplemented, amended or restated from time to time, the “ Credit Agreement ”), by and among J.A. Cosmetics Holdings, Inc., a Delaware corporation (“ Holdings ”), as the initial borrower (the “ Initial Borrower ” each of the Initial Borrower, and each Domestic Subsidiary of Initial Borrower who hereafter becomes a “Borrower” under the Credit Agreement pursuant to a Joinder Agreement, are referred to herein individually as a “ Borrower ” and collectively as the “Borrowers”), the Guarantors party thereto, certain Lenders which are signatories thereto, and Bank of Montreal, as Administrative Agent. Capitalized terms used herein but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Credit Agreement.

The Borrower Agent, hereby gives you irrevocable notice pursuant to Section 2.04(b) of the Credit Agreement that it requests Swing Line Loans under the Credit Agreement (the “ Proposed Advance ”) to be made to                          4 and, in connection therewith, sets forth the following information:

A. The date of the Proposed Advance is              ,              (the “ Funding Date ”).

B. The aggregate principal amount of Proposed Advance is $              .

The undersigned hereby certifies that, except as set forth on Schedule A attached hereto, the following statements will be true on the date of the Proposed Advance both immediately before and after giving effect to the Proposed Advance to be issued on the Funding Date:

(i) the representations and warranties of the Loan Parties contained in Article V of the Credit Agreement or any other Loan Document are true and correct in all material respects (or in all respects for such representations and warranties that are by their terms already qualified as to materiality) on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are be true and correct in all material respects (or in all respects for such representations and warranties that are by their terms already qualified as to materiality) as of such earlier date;

(ii) the Revolving Credit Outstandings of any Revolving Lender do not exceed such Revolving Lender’s Revolving Credit Commitment; and

 

4 Include relevant Borrower.

 


(iii) no Default or Event of Default is continuing.

    Sincerely,

 

[J.A. COSMETICS HOLDINGS, INC.]/[J.A. COSMETICS US, INC.],

a Delaware corporation, as the Borrower Agent 5

By    
  Name                                                                                       
  Title                                                                                          

 

5   Prior to the consummation of the Closing Date Acquisition and the joinder by J.A. Cosmetics US, Inc., as a Borrower pursuant to a Joinder Agreement, J.A. Cosmetics Holdings, Inc. will be the signatory hereto. Upon the consummation of the Closing Date Acquisition and the joinder by J.A. Cosmetics US, Inc., as a Borrower pursuant to a Joinder Agreement, J.A. Cosmetics US, Inc. will be the signatory hereto.

 

 


Exhibit C-1

Form of Revolving Loan Note

 

U.S. $                                              ,             

F OR V ALUE R ECEIVED , the undersigned, J.A. Cosmetics Holdings, Inc., a Delaware corporation (“ Initial Borrower ”), hereby promises to pay to                      (the “ Lender ”) or its registered assigns on the Revolving Credit Termination Date of the hereinafter defined Credit Agreement, at the principal office of the Administrative Agent in Chicago, Illinois (or such other location as the Administrative Agent may designate to the Initial Borrower), in immediately available funds, the principal sum of                      Dollars ($                      ) or, if less, the aggregate unpaid principal amount of all Revolving Loans made by such Lender to the Borrowers pursuant to the Credit Agreement, together with interest on the principal amount of each Revolving Loan from time to time outstanding hereunder at the rates, and payable in the manner and on the dates, specified in the Credit Agreement.

This Note is one of the Revolving Loan Notes referred to in the Credit Agreement dated as of January 31, 2014, among the Initial Borrower (the Initial Borrower, together with each Domestic Subsidiary of Initial Borrower who hereafter becomes a “Borrower” thereunder pursuant to a Joinder Agreement may be referred to individually, as a “ Borrower ” and collectively, as “ Borrowers ”), the Guarantors party thereto, the Lenders and L/C Issuer parties thereto, and Bank of Montreal, as Administrative Agent (as extended, renewed, supplemented, modified amended or restated from time to time, the “ Credit Agreement ”), and this Note and the holder hereof are entitled to all the benefits and security provided for thereby or referred to therein, to which Credit Agreement reference is hereby made for a statement thereof. All defined terms used in this Note, except terms otherwise defined herein, shall have the same meaning as in the Credit Agreement. This Note shall be governed by and construed in accordance with the internal laws of the State of New York.

Voluntary prepayments may be made hereon, certain prepayments are required to be made hereon, and this Note may be declared due prior to the expressed maturity hereof, all in the events, on the terms and in the manner as provided for in the Credit Agreement.

The Borrower hereby waives to the extent permitted by applicable law demand, presentment, protest or notice of any kind hereunder.

[ Signature Page Follows ]


J.A. COSMETICS HOLDINGS, INC., a
Delaware corporation 6
By    
  Name                                                                                       
  Title                                                                                          

 

 

6 Upon the consummation of the Closing Date Acquisition and the joinder by J.A. Cosmetics US, Inc., as a Borrower pursuant to a Joinder Agreement, J.A. Cosmetics US, Inc. will be the signatory hereto.


Exhibit C-2

Form of Term Loan Note

 

U.S. $                                              ,             

F OR V ALUE R ECEIVED , the undersigned, J.A. Cosmetics Holdings, Inc., a Delaware corporation (“ Initial Borrower ”), hereby promises to pay to                      (the “ Lender ”) or its registered assigns at the principal office of the Administrative Agent in Chicago, Illinois (or such other location as the Administrative Agent may designate to the Initial Borrower), in immediately available funds, the principal sum of                      Dollars ($                      ) or, if less, the aggregate unpaid principal amount of all Term Loans made or maintained by such Lender to the Borrowers pursuant to the Credit Agreement, in installments in the amounts called for by Section 2.05(a) of the Credit Agreement, commencing on June 30, 2014, together with interest on the principal amount of such Term Loan from time to time outstanding hereunder at the rates, and payable in the manner and on the dates, specified in the Credit Agreement.

This Note is one of the Term Loan Notes referred to in the Credit Agreement dated as of January 31, 2014, among the Initial Borrower (the Initial Borrower, together with each Domestic Subsidiary of Initial Borrower who hereafter becomes a “Borrower” thereunder pursuant to a Joinder Agreement may be referred to individually, as a “ Borrower ” and collectively, as “ Borrowers ”), the Guarantors party thereto, the Lenders and L/C Issuer parties thereto, and Bank of Montreal, as Administrative Agent (as extended, renewed, supplemented, modified, amended or restated from time to time, the “ Credit Agreement ”), and this Note and the holder hereof are entitled to all the benefits and security provided for thereby or referred to therein, to which Credit Agreement reference is hereby made for a statement thereof. All defined terms used in this Note, except terms otherwise defined herein, shall have the same meaning as in the Credit Agreement. This Note shall be governed by and construed in accordance with the internal laws of the State of New York.

Voluntary prepayments may be made hereon, certain prepayments are required to be made hereon, and this Note may be declared due prior to the expressed maturity hereof, all in the events, on the terms and in the manner as provided for in the Credit Agreement.

The Borrower hereby waives to the extent permitted by applicable law demand, presentment, protest or notice of any kind hereunder.

[ Signature Page Follows ]


J.A. COSMETICS HOLDINGS, INC., a
Delaware corporation 7
By    
  Name                                                                                       
  Title                                                                                          

 

 

7 Upon the consummation of the Closing Date Acquisition and the joinder by J.A. Cosmetics US, Inc., as a Borrower pursuant to a Joinder Agreement, J.A. Cosmetics US, Inc. will be the signatory hereto.


EXHIBIT D

TO

CREDIT AGREEMENT

COMPLIANCE CERTIFICATE

[BORROWER AGENT]

Date:              , 20             

This certificate is given by                      , a              , in its capacity as Borrower Agent, pursuant to Section 6.02(a) of that certain Credit Agreement dated as of January 31, 2014 among Borrower Agent, J.A. Cosmetics Holdings, Inc., a Delaware corporation (the “ Initial Borrower ”; the Initial Borrower and each Domestic Subsidiary of Initial Borrower that becomes a “Borrower” thereunder pursuant to a Joinder Agreement collectively, the “ Borrowers ”), the other Loan Parties from time to time party thereto, the Lenders from time to time party thereto, and Bank of Montreal, as Administrative Agent for Lenders (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement”) . Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement.

The undersigned Responsible Officer hereby certifies to Administrative Agent and Lenders, solely as an officer of Borrower Agent and not individually, as of the date hereof, that:

(a) the financial statements delivered with this certificate in accordance with Section 6.01(a) and/or 6.01(b) of the Credit Agreement were prepared in accordance with GAAP and fairly present in all material respects the financial condition of Holdings and its Subsidiaries as of the dates indicated therein [, subject to year-end adjustments and the absence of footnotes] [note: delete bracketed text where the Compliance Certificate is delivered in conjunction with the annual audited financial statements.]

(b) I have reviewed the terms of the Credit Agreement and have made, or caused to be made under my supervision, a review in reasonable detail of the transactions and conditions of Holdings and its Subsidiaries during the accounting period covered by such financial statements;

(c) such review has not disclosed the existence as of the date hereof of a Default or an Event of Default, except as set forth in Schedule 1 hereto, which includes a description of the nature of such Default or Event of Default and what action Borrowers have taken, are undertaking and/or propose to take with respect thereto;

 

1


(d) Borrowers are in compliance with the covenants contained in Section 7.12(a) and 7.12(b) of the Credit Agreement, as demonstrated by the calculation of such covenants below, except as set forth below;

(e) subsequent to the delivery of the last Compliance Certificate submitted pursuant to the Credit Agreement, except as set forth in Schedule 2 hereto, no Loan Party has (i) obtained any U.S. Federal registration of a patent or trademark, or (ii) applied for the U.S. Federal registration of a patent or trademark;

(f) subsequent to the delivery of the last Compliance Certificate submitted pursuant to the Credit Agreement, except as set forth in Schedule 3 hereto, (i) no Subsidiary of a Loan Party has merged or consolidated with or liquidated or dissolved into a Loan Party and (ii) no Subsidiary that is not a Loan Party has merged into any other Subsidiary that is not a Loan Party;

(g) subsequent to the delivery of the last Compliance Certificate submitted pursuant to the Credit Agreement, except as set forth in Schedule 4 hereto (which shall set forth the information in reasonable detail), there has been no material change in accounting policies or financial reporting practices by any Loan Party or any Subsidiary; and

(h) attached hereto as Schedule 5 is a correct calculation of the Available Amount as of [              ].

IN WITNESS WHEREOF, the undersigned officer has executed and delivered this certificate, solely as an officer of Borrower Agent and not individually, this              day of              ,              .

 

 
By    
Name    
Title                of the Borrower Agent

 

2


CONSOLIDATED TOTAL NET LEVERAGE RATIO

(Section 7.12(a))

 

Consolidated Total Net Funded Debt is defined as follows:    
The sum (but without duplication) of the aggregate principal amount of Indebtedness of Holdings and its Subsidiaries as of the last day of the Measurement Period, determined on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with any Permitted Acquisition or other permitted Investment), solely to the extent consisting of (a) obligations for borrowed money, (b) obligations under Capital Leases and synthetic or other similar financing leases, (c) obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (d) direct or contingent obligations arising under letters of credit (including standby and commercial but excluding all Letters of Credit), bankers’ acceptances, bank guarantees and similar instruments, (e) obligations to pay the deferred purchase price of property or services (other than (i) accrued expenses and trade payables incurred in the Ordinary Course of Business, (ii) any working capital adjustment or any earnout obligation, deferred compensation, non-compete or similar obligations under employment agreements of such Person and (iii) any earnout obligations and other similar deferred purchase price obligations (other than obligations with respect to seller notes) solely to the extent such earnout obligations and other similar deferred purchase price obligations (other than obligations with respect to seller notes) either (x) are subordinated in right of payment to the Obligations on terms reasonably satisfactory to the Administrative Agent or (y) are payable (including with respect to principal, interest and fees) no earlier than the date that is 180 days after the Facility Termination Date), in each case, only if due and payable, (f) obligations with respect to seller notes, (g) obligations with respect to the redemption, repayment or other repurchase or payment in respect of any Disqualified Equity Interest; provided, Consolidated Total Net Funded Debt shall not include (i) obligations under Swap Contracts entered into in the Ordinary Course of Business for bona fide hedging purposes and not for speculative purposes and (ii) unsecured and non-interest bearing obligations of Holdings arising as a result of the exercise of the Seller Put Option    
   

 

 

3


Less:  Unrestricted cash and Cash Equivalents of any Loan Party (other than any Net Cash Proceeds from the issuance by Holdings of any Permitted Cure Securities, or cash common equity contributions received by Holdings pursuant to Section 8.04 of the Credit Agreement) with respect to which Administrative Agent has a perfected Lien, not to exceed $10,000,000 in the aggregate; provided, that notwithstanding the foregoing, until the expiration of the time period permitted under Section 6.14 of the Credit Agreement, such cash and Cash Equivalents shall be deducted for purposes of calculating Consolidated Total Net Funded Debt regardless of whether Administrative Agent has a perfected Lien on such cash and Cash Equivalents

   
   

 

Consolidated Total Net Funded Debt as of the last day of the Measurement Period     $
   

 

Adjusted Consolidated EBITDA for the Measurement Period is defined as follows 1 :    
Consolidated net income (or loss) for the Measurement Period of Holdings, the Borrowers, and their Subsidiaries, but excluding: (a) the income (or loss) of any Person that is not a Subsidiary, provided that consolidated net income shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash to a Borrower or Subsidiary thereof from a Person that is not a Subsidiary in respect of such period and (b) except as otherwise provided below, the income (or loss) of any Person accrued prior to the date it became a Subsidiary of a Borrower or is merged into or consolidated with Borrower or a Subsidiary of a Borrower; provided, extraordinary, non-recurring or unusual gains, losses, charges or expenses shall be excluded from the calculation of consolidated net income (or loss) (it being understood, for the avoidance of doubt, that items that are subject to a cap in other areas of the calculation of Adjusted Consolidated EBITDA shall not be permitted to be added-back on the basis of being “unusual” or “non-recurring”)    
   

$

 

1 To include Acquired EBITDA and exclude Disposed EBITDA per the paragraph on page 10 of this certificate.

 

4


Plus (without duplication):

 

Any provision for taxes based on income, profits or capital, including but not limited to federal, provincial, state, franchise and similar taxes and foreign withholding taxes of such Person paid or accrued during such period (including penalties, interest, costs and expenses related to such taxes or arising from any tax examinations) deducted in the determination of consolidated net income for the Measurement Period

   
   
   

 

Interest expense (including but not limited to (i) net payments, if any, pursuant to interest rate Swap Contracts entered into for the purpose of hedging interest rate risk, (ii) bank fees, (iii) costs of surety bonds in connection with financing activities, and (iv) fees, charges, commissions, and discounts owed with respect to letters of credit or bankers acceptances) (less, interest income) deducted (or included) in the determination of consolidated net income for the Measurement Period

   
   
   

 

Amortization and depreciation (including but not limited to the amortization of deferred financing fees or costs and the amortization of original issue discount resulting from the issuance of Indebtedness at less than par and, to the extent a synthetic or other similar financing lease is Indebtedness, rental payments in connection with such leases that are expensed) deducted in the determination of consolidated net income for the Measurement Period

   
   
   

 

Losses (less gains) from asset Dispositions (other than asset Dispositions in the Ordinary Course of Business) included in the determination of consolidated net income for the Measurement Period

   
     

Non-cash expenses, charges or losses (less non-cash gains or income), including any write-offs or write-downs, including impairment charges, deducted (or included) in the determination of consolidated net income for the Measurement Period; provided that if any such amount represents an accrual or reserve for a potential cash item in any future period, the cash payment in respect thereof that is paid in a subsequent Measurement Period shall be deducted from Adjusted Consolidated EBITDA to such extent in such subsequent Measurement Period

   
   

 

 

5


Expenses and fees deducted in the determination of consolidated net income and incurred during the Measurement Period to consummate the Transaction, whether occurring before or within 180 days after the Closing Date

   
   

 

Expenses and fees (including expenses and fees paid to Administrative Agent and Lenders and the lenders under the Subordinated Indebtedness Documents and any other Indebtedness) deducted in the determination of consolidated net income and incurred during the Measurement Period and after the Closing Date in connection with the consummation or administration of the Loan Documents and the Subordinated Indebtedness Documents or the documents governing such other Indebtedness (including in connection with any actual or proposed amendment, supplement, waiver or other modification to the Loan Documents or Subordinated Indebtedness Documents or any other Indebtedness, whether or not consummated)

   
   

 

Fees and expenses incurred under the Management Agreement, and fees, expenses and indemnifications of directors, in each case permitted under the Credit Agreement and deducted in the determination of consolidated net income during the Measurement Period

   
   

 

Expenses deducted in the determination of consolidated net income during the Measurement Period and covered by indemnification or other reimbursement provisions, or purchase price adjustments in connection with any Permitted Acquisition or other permitted Investment (to the extent deducted from the determination of consolidated net income during the Measurement Period), in each case to the extent actually received in cash during such Measurement Period, or to the extent that Borrower Agent reasonably expects a payment in respect of the applicable indemnification or other reimbursement provision, or purchase price adjustment will be received in cash within 180 days after the date such expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually paid, indemnified or reimbursed in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period)

   
   

 

 

6


Expenses and fees deducted in the determination of consolidated net income during the Measurement Period and which are incurred in connection with the consummation (or attempted or proposed or anticipated consummation) of any Permitted Acquisitions or any Acquisitions which would reasonably be expected to have (if they had been consummated) satisfied the requirements of the defined term “Permitted Acquisition” but for the fact they are not consummated; provided that the add-back for all amounts attributable to all such non-consummated transactions shall not exceed $1,000,000 (or such higher amount reasonably acceptable to Administrative Agent) in any Fiscal Year

     
     
     

 

Expenses and fees deducted in the determination of consolidated net income during the Measurement Period and which are incurred in connection with any proposed or actual issuance of debt or equity, restricted payment, Investment permitted under Section 7.03(b) or (l) of the Credit Agreement or asset Dispositions (other than asset Dispositions in the Ordinary Course of Business); provided, that the add-back for all amounts attributable to all such non-consummated transactions shall not exceed $1,000,000 (or such higher amount reasonably acceptable to Administrative Agent) in any Fiscal Year

     
     
     

 

Without duplication of any other add-back set forth herein, losses, charges or expenses deducted in the determination of consolidated net income during the Measurement Period, but for which insurance or indemnity recovery is actually received in cash during the Measurement Period or to the extent that Borrower Agent reasonably expects such insurance or indemnity recovery will be received in cash within 180 days after the date such loss, charge or expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually indemnified or recovered in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period)

     
     

 

 

7


Without duplication of any other add-back set forth herein, expenses, charges or losses deducted in the determination of consolidated net income during the Measurement Period and reimbursed by third parties to the extent such reimbursements are actually received in cash during the Measurement Period or to the extent that Borrower Agent reasonably expects such reimbursement will be received in cash within 180 days after the date such loss, charge or expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually reimbursed in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period)

     
     

 

Non-cash exchange or translation losses (less non-cash gains) deducted (or included) in the determination of consolidated net income during the Measurement Period and arising from foreign currency hedging transactions or currency fluctuations

     
     

 

Non-cash deductions or charges (less non-cash gains or positive adjustments, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Adjusted Consolidated EBITDA in any prior Measurement Period and excluding any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase Adjusted Consolidated EBITDA in such prior period) to net income attributable to purchase accounting adjustments made in accordance with GAAP

     
     

 

the amount of any earn out or other similar deferred purchase price obligation (other than obligations constituting salary payments pursuant to ordinary course employment agreements and salary bonuses payable thereunder) which was reserved or paid during such Measurement Period and deducted in the calculation of consolidated net income for such Measurement Period, to the extent such obligations and, if paid, the payment thereof are permitted under the Credit Agreement

     
     

 

 

8


(i) the amount of any deferred compensation, signing bonuses, retention and relocation costs and expenses, restructuring charges, integration costs or other business optimization expenses, costs associated with establishing new facilities or reserves, including any one-time costs incurred in connection with acquisitions, and costs related to the closure and/or consolidation of facilities, in each case, to the extent deducted in the calculation of consolidated net income for the Measurement Period (collectively, the “ Restructuring Charges, Business Optimization Expenses and Reserves ”), as calculated in the good faith determination of the Borrowers and as certified by the Borrower Agent’s chief financial officer, chief executive officer, controller or other comparable executive and (ii) the amount of cost savings, operating expense reductions, and synergies projected by the Borrowers in good faith to be realized as a result of specified actions taken or initiated prior to or during the 12-month period following the date thereof (which will be added to Adjusted Consolidated EBITDA as so projected until fully realized and calculated on a Pro Forma Basis as though such cost savings, operating expense reductions and synergies had been realized during such period), net of the amount of actual benefits realized during such period from such actions; provided that (x) such cost savings, operating expense reductions and synergies are reasonably identifiable and factually supportable (in the good faith determination of the Borrowers) and (y) such actions have been taken or initiated or are reasonably expected to be taken, no later than 12 months after the last day of the relevant Measurement Period (it being agreed and understood that no add-back for Restructuring Charges, Business Optimization Expenses and Reserves shall be permitted in any subsequent Measurement Period where any such action is discontinued or is no longer reasonably expected to be taken) (collectively, the “ Cost Savings and Synergies ”); provided, that the aggregate amount of add-backs made for the revenue synergies portion of Cost Savings and Synergies during any Measurement Period shall not exceed 10% (or such greater amount approved by Administrative Agent) of Adjusted Consolidated EBITDA on a Pro Forma Basis for that period calculated after giving pro forma effect to the inclusion of the add-backs pursuant to this clause and, without duplication, the Pro Forma Adjustments, and the add-backs pursuant to this clause shall not be duplicative of other adjustments for the same Measurement Period; provided, further, that the aggregate amount of add-backs made for Restructuring Charges, Business Optimization Expenses and Reserves and Cost Savings and Synergies during any Measurement Period, together with the aggregate Pro Forma Adjustments during such Measurement Period, shall not exceed 20% of Adjusted Consolidated EBITDA on a Pro Forma Basis for that period calculated after giving pro forma effect to the inclusion of the add-backs pursuant to this clause and, without duplication, after giving effect to the Pro Forma Adjustments as set forth below and the add-backs pursuant to this clause shall not be duplicative of other adjustments for the same Measurement Period

  
  
  
  
  
  
  
  
  
  
  
  
  
     

 

 

9


the amount of any severance costs to the extent deducted in the calculation of consolidated net income for the Measurement Period, as calculated in the good faith determination of the Borrowers and as certified by the Borrower Agent’s chief financial officer, chief executive officer, controller or other comparable executive

  
  
     

 

any costs or expense incurred by Holdings, the Borrowers or a Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of Holdings (or the Borrowers through Holdings) or Net Cash Proceeds of an issuance of Equity Interests (other than Disqualified Equity Interests) of Holdings or the Borrowers

     
     

 

proceeds received during such Measurement Period by Holdings and its Subsidiaries of business interruption insurance or business interruption proceeds that Borrower Agent reasonably expects will be received in cash within 180 days after the date of the business interruption event giving rise to such proceeds (with a deduction in the applicable future Measurement Period for any amount so added back to the extent not actually received in a subsequent Measurement Period and added back hereto in a prior Measurement Period, provided, that if such proceeds are actually received in a subsequent Measurement Period and previously added back in a prior Measurement Period, such amount shall not be permitted to be added back for such subsequent Measurement Period), in each case, to the extent not already included in consolidated net income

     
     

 

 

10


payments to or on behalf of Holdings or any indirect parent company of the Borrowers for out-of-pocket legal, accounting and filing costs, director fees, expenses and indemnities and other overhead expenses incurred in the Ordinary Course of Business for the benefit of Borrowers and their Subsidiaries or otherwise related to Holdings’ or such indirect parent company’s ownership of Borrowers and their Subsidiaries, in each case, to the extent deducted in the calculation of consolidated net income

     
     
     

 

Pro Forma Adjustments (as defined in the Credit Agreement)

     

 

for purposes of compliance with the financial covenants set forth in Sections 7.12(a) and (b), the amount of any proceeds from the issuance of Permitted Cure Securities or any cash common equity contributions received in connection with an exercise of a Cure Right pursuant to Section 8.04 of the Credit Agreement in respect of such Measurement Period

     
     

 

Less:

 

Cash payments made during such Measurement Period in respect of an accrual or reserve added back to consolidated net income in the calculation of Adjusted Consolidated EBITDA in a prior Measurement Period

     
     
     

 

Adjusted Consolidated EBITDA for the Measurement Period (for use in Section 7.12(b) of the Compliance Certificate) 2      
      $
     

 

 

2 Notwithstanding the foregoing, Adjusted Consolidated EBITDA for each period set forth below shall be deemed to be the amount set forth below opposite such month (subject to Pro Forma Adjustments and as a result of acquisitions, all as set forth above):
Period    Consolidated
EBITDA
 

Quarter ending June 30, 2013

   $ 3,785,428   

Quarter ending September 30, 2013

   $ 8,112,504   

Month ending October 31, 2013

   $ 4,659,358   

Month ending November 30, 2013

   $ 4,780,369   

 

11


Notwithstanding the foregoing there shall be included in determining Adjusted Consolidated EBITDA for any period, without duplication, (A) the Acquired EBITDA of any Person, all or substantially all of the assets of a Person, or any business unit, line of business or division of any Person acquired by the Borrowers or any Subsidiary during such period (but not the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired), to the extent not subsequently sold, transferred or otherwise disposed of by the Borrowers or such Subsidiary during such Measurement Period (each such Person, property, business or asset acquired and not subsequently so disposed of, an “ Acquired Entity or Business ”), based on the actual Acquired EBITDA of such Acquired Entity or Business for such Measurement Period (including the portion thereof occurring prior to such acquisition) and (B) an adjustment in respect of each Acquired Entity or Business equal to the amount of the Pro Forma Adjustment with respect to such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition), in the case of each of the foregoing clauses (A) and (B), as specified in a certificate executed by a Responsible Officer and delivered to the Administrative Agent; provided, that the aggregate amount of Pro Forma Adjustments for such period, together with the aggregate add-backs to consolidated net income made for Restructuring Charges, Business Optimization Expenses and Reserves and Cost Savings and Synergies during such period, shall not exceed 20% of Adjusted Consolidated EBITDA on a Pro Forma Basis for that period calculated after giving pro forma effect to the Pro Forma Adjustments pursuant to this clause and, without duplication, the add-backs to consolidated net income made for Restructuring Charges, Business Optimization Expenses and Reserves and Cost Savings and Synergies, and the Pro Forma Adjustments pursuant to this clause shall not be duplicative of other adjustments for the same period. There shall be excluded in determining Adjusted Consolidated EBITDA for any period the Disposed EBITDA of any Person, all or substantially all of the assets of a Person, or any business unit, line of business or division of any Person sold, transferred or otherwise disposed of, closed or classified as discontinued operations by the Borrowers or any Subsidiary during such Measurement Period (each such Person, property, business or asset so sold or disposed, a “ Sold Entity or Business ”), based on the actual Disposed EBITDA of such Sold Entity or Business for such Measurement Period (including the portion thereof occurring prior to such sale, transfer, disposition or conversion).

 

Consolidated Total Net Leverage Ratio (ratio of Consolidated Total Net Funded Debt as of the last day of the Measurement Period to Adjusted Consolidated EBITDA for the Measurement Period)              to 1.0            
Maximum Permitted Consolidated Total Net Leverage Ratio for the Measurement Period              to 1.0            
In Compliance    Yes/No            

 

12


CONSOLIDATED INTEREST COVERAGE RATIO

(Section 7.12(b))

 

Interest expenses paid (or required to be paid) in cash during the Measurement Period, net of (x) interest income received in cash and (y) net payments, if any, received pursuant to interest rate obligations under any Swap Contracts with respect to Indebtedness, by Holdings and its Subsidiaries for the Measurement Period (“ Total Cash Interest Expenses ”) 3    $                         
Adjusted Consolidated EBITDA for the Measurement Period (calculated in the manner required by Section 7.12(a) of the Compliance Certificate)    $                         
Consolidated Interest Coverage Ratio (Ratio of Adjusted Consolidated EBITDA to Total Cash Interest Expenses) for the Measurement Period             to 1.0
Minimum required Consolidated Interest Coverage Ratio for the Measurement Period             to 1.0
In Compliance    Yes/No

 

3   (a) For purposes of calculating the Consolidated Interest Coverage for the Measurement Periods ending March 31, 2014, June 30, 2014, September 30, 2014 and December 31, 2014, Total Cash Interest Expenses for each such Measurement Period shall be calculated by taking the amount of interest for the period from the Closing Date through the last day of the applicable Measurement Period and multiplying such amount by a fraction, the numerator of which is 365 and the denominator of which is the number of days from the Closing Date through the last day of such Measurement Period.
   (b) For the avoidance of doubt, Total Cash Interest Expense shall be calculated on a Pro Forma Basis.

 

13


CALCULATION OF CONSOLIDATED SENIOR NET LEVERAGE RATIO

 

Consolidated Senior Net Debt is defined as follows:   
Consolidated Total Net Funded Debt (calculated in Section 7.12(a) of the Compliance Certificate) as of the last day of the Measurement Period    $                         

Less:  the outstanding principal balance of all Subordinated Indebtedness as of the last day of the Measurement Period

   $                         
Consolidated Senior Net Debt as of the last day of the Measurement Period    $                         
Adjusted Consolidated EBITDA (calculated in Section 7.12(a) of the Compliance Certificate) for the Measurement Period    $                         
Consolidated Senior Net Leverage Ratio (ratio of Consolidated Senior Net Debt as of the last day of the Measurement Period to Adjusted Consolidated EBITDA for the Measurement Period)             to 1.0

 

14


EXHIBIT E

TO

CREDIT AGREEMENT

EXCESS CASH FLOW CERTIFICATE

[BORROWER AGENT]

Date:                  , 20         

This certificate is given by [                      ], a [                      ], in its capacity as Borrower Agent, pursuant to Section 6.02(b) of that certain Credit Agreement dated as of January 31, 2014 among Borrower Agent, J.A. Cosmetics Holdings, Inc., a Delaware corporation (the “ Initial Borrower ”; the Initial Borrower and each Domestic Subsidiary of Initial Borrower that becomes a “Borrower” thereunder pursuant to a Joinder Agreement collectively, the “ Borrowers ”), the other Loan Parties from time to time party thereto, the Lenders from time to time party thereto, and Bank of Montreal, as Administrative Agent for Lenders (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”). Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement.

The undersigned Responsible Officer hereby certifies to Administrative Agent and Lenders, solely as an officer of Borrower Agent and not individually, as of the date hereof that:

 

  (a) set forth below is a correct calculation of Excess Cash Flow for the year ended December 31, 20          and a correct calculation of the required prepayment of:

$                           ; and

 

  (b) Schedule I attached hereto is based on the audited financial statements which have been delivered to the Administrative Agent in accordance with subsection 6.01(a) of the Credit Agreement.

[Remainder of page intentionally blank; signature page follows]

 

1


IN WITNESS WHEREOF, the undersigned officer has executed and delivered this certificate, solely as an officer of Borrower Agent and not individually, this          day of                      , 201_.

 

[                          ], as Borrower Agent
By      
Name      
Title      

 

2


Schedule I

to Excess Cash Flow Certificate

[BORROWER AGENT]

Calculations as of              , 201_

 

Excess Cash Flow Calculation   

A.     Cash Flow

        

1.      Adjusted Consolidated EBITDA for the applicable Fiscal Year (calculated in the manner set forth in the Compliance Certificate, but for the avoidance of doubt, excluding any Cure Amount included in the calculation of Adjusted Consolidated EBITDA)

     $                            

Less, in each case, during the applicable Fiscal Year and without duplication: 1

  

2.      Unfinanced Capital Expenditures (calculated in the manner set forth in Schedule III hereto)

     $                            

3.      Any taxes based on income, profits or capital, including but not limited to federal, provincial, state, franchise and similar taxes and foreign withholding taxes paid during such period (including penalties, interest, costs and expenses related to such taxes or arising from any tax examination) paid in cash and deducted in the determination of net income, net of any cash tax credit or other cash tax benefits received

     $                            

4.      Interest expense (including but not limited to (i) net payments, if any, pursuant to interest rate Swap Contracts entered into for the purpose of hedging interest rate risk, (ii) bank fees, (iii) costs of surety bonds in connection with financing activities, and (iv) fees, charges, commissions, and discounts owed with respect to letters of credit or bankers acceptances) paid in cash, net of interest income received in cash, by Holdings and its Subsidiaries

     $                            

5.      The aggregate amount of amortization payments required to be made, and actually made, by Holdings and its Subsidiaries in respect of all principal on all Indebtedness

   $                            

 

1 For the avoidance of doubt, (a) the deductions set forth in items A2 through A10 shall exclude such amounts attributable to the target of a Permitted Acquisition prior to the consummation of such Acquisition and (b) any amounts included as Unfinanced Capital Expenditures shall not be included as a deduction in any other item.

 

3


6.      (i) Fees and expenses paid pursuant to the Management Agreement and (ii) directors’ fees, expenses and indemnifications, in case of each of the foregoing clauses (i) and (ii), to the extent paid in cash, permitted to be paid pursuant to the Credit Agreement and added back to net income in the calculation of Adjusted Consolidated EBITDA

   $                         

7.      Purchase price paid in cash in respect of all Permitted Acquisitions or Investments made in cash, in each instance permitted pursuant to Section 7.03(b), (f) or (l) of the Credit Agreement to the extent not funded with proceeds from the incurrence of Indebtedness (other than Revolving Loans), the issuance of Equity Interests (including capital contributions) or the Available Amount

   $                         

8.      Transaction fees, costs and expenses paid in cash and incurred in connection with (i) the consummation (or attempted or proposed or anticipated consummation) of any Permitted Acquisitions or any Acquisitions which would reasonably be expected to have (if they had been consummated) satisfied the requirements of the defined term “Permitted Acquisition” but for the fact that they are not consummated and (ii) any proposed or actual issuance of debt or equity, restricted payment or other Investment permitted pursuant to Section 7.03(b) or (l), in each instance in (i) and (ii) to the extent (a) not funded with proceeds of Indebtedness (other than Revolving Loans), from the issuance of Equity Interests (including capital contributions) or the Available Amount and (b) added back to net income in the determination of Adjusted Consolidated EBITDA

   $                         

9.      Fees and expenses (including those paid to Administrative Agent and the Lenders and the lenders under the Subordinated Indebtedness Documents and any other Indebtedness) paid in cash in connection with the consummation or administration of the Loan Documents or Subordinated Indebtedness Documents (including, but not limited to fees and expenses in connection with the Transaction) or any other Indebtedness (including in connection with any actual or proposed amendment, supplement, waiver or other modification to the Loan Documents or Subordinated Indebtedness Documents or any other Indebtedness, whether or not consummated), to the extent added back to net income in the determination of Adjusted Consolidated EBITDA, in each instance to the extent not funded with proceeds of Indebtedness (other than Revolving Loans) or from the issuance of Equity Interests (including capital contributions)

   $                         

 

4


10.    Purchase price adjustments in connection with any Permitted Acquisition or other permitted Investment, in each case to the extent paid in cash during such Fiscal Year not funded with proceeds of Indebtedness (other than Revolving Loans) or from the issuance of Equity Interests (including capital contributions)

   $                         

11.    the amount of any earn out obligation paid in cash during such Fiscal Year

   $                         

12.    Restructuring Charges, Business Optimization Expenses and Reserves (as defined in Exhibit D to the Credit Agreement) to the extent paid in cash and added back to net income in the determination of Adjusted Consolidated EBITDA

   $                         

13.    Cost Savings and Synergies (as defined in Exhibit D to the Credit Agreement) to the extent added back to net income in the determination of Adjusted Consolidated EBITDA

   $                         

14.    proceeds received by Holdings and its Subsidiaries of business interruption insurance to the extent added back to net income in the determination of Adjusted Consolidated EBITDA

   $                         

15.    Restricted Payments paid in cash and permitted by Section 7.06(c), (d) or (e) of the Credit Agreement

   $                         

16.    Any increases in working capital of Holdings and its Subsidiaries (as calculated pursuant to Schedule II below)

   $                         

17.    Amount of any proceeds from the issuance of Permitted Cure Securities or cash common equity contributions received in connection with an Equity Cure pursuant to Section 8.04 of the Credit Agreement, to the extent added back to net income in the determination of Adjusted Consolidated EBITDA and without duplication of amounts excluded pursuant to A.1. above

   $                         

18.    All other add backs to Adjusted Consolidated EBITDA to the extent paid in cash and added back to net income in the determination of Adjusted Consolidated EBITDA, in each instance to the extent not funded with proceeds from the incurrence of Indebtedness (other than Revolving Loans), the issuance of Equity Interests (including capital contributions), the Available Amount, insurance proceeds, indemnity payments or other third party reimbursements

   $                         

 

5


19.    cash losses from extraordinary, non-recurring or unusual items

   $                         

20.    the amount paid in cash in respect of any item for which, in a prior Fiscal Year, a non-cash loss, expense, accrual or charge (other than any non-cash accrual for a potential cash item in any future period, the cash payment of which was paid in the applicable Fiscal Year) was included in determining Adjusted Consolidated EBITDA in such prior Fiscal Year

   $                         

21.    severance costs to the extent paid in cash and added back to net income in the determination of Adjusted Consolidated EBITDA

   $                         

B.     Total deductions from Adjusted Consolidated EBITDA (sum of A2 through A21 above)

   $                         

C.     Any cash gains from extraordinary items, other than any business interruption proceeds

   $                         

D.     Any decreases in working capital of Holdings and its Subsidiaries for the applicable Fiscal Year (as calculated pursuant to Schedule II below)

   $                         

E.     Excess Cash Flow (A1 minus B plus C plus D above)

   $                         

F.      Applicable ECF Percentage

   [50%] [25%] [0%]  2

G.     Gross Excess Cash Flow Prepayment Amount (result of E multiplied by F above)

   $                         

H.     The aggregate amount of voluntary prepayments of the Term Loan (other than Discounted Voluntary Prepayments) and, to the extent accompanied by a corresponding permanent reduction in the Revolving Credit Commitment, the Revolving Credit Facility, in each case, made (i) during such Fiscal Year (other than any voluntary prepayments made during the first 120 days of such Fiscal Year to the extent such voluntary prepayments were credited in the calculation of the Excess Cash Flow prepayment for the prior Fiscal Year) or (ii) within 120 days after the end of the Fiscal Year for which such Excess Cash Flow is being calculated that are applied in the manner set forth in Section 2.06(b)(iv) of the Credit Agreement, in each case, to the extent not financed with proceeds from the incurrence of long-term Indebtedness (other than Revolving Loans)

   $                         

I.      Net Excess Cash Flow Prepayment Amount (G minus H above)

   $                         

 

2 Choose applicable percentage pursuant to Section 2.06(b)(i) of the Credit Agreement.

 

6


For the avoidance of doubt, for purposes of calculating Excess Cash Flow for any Fiscal Year, for each Permitted Acquisition or other Investment constituting an Acquisition permitted to be made under the Credit Agreement consummated during such Fiscal Year, the Adjusted Consolidated EBITDA of a target of any such Permitted Acquisition or Investment shall be included in such calculation only from and after the date of the consummation of such Permitted Acquisition and/or Investment and (y) for the purposes of calculating Net Working Capital, the (A) total assets of a target of such Permitted Acquisition (other than cash and Cash Equivalents), as calculated as at the date of consummation of the applicable Permitted Acquisition, which may properly be classified as current assets on a consolidated balance sheet of Holdings and its Subsidiaries in accordance with GAAP (assuming, for the purpose of this clause (A), that such Permitted Acquisition has been consummated) and (B) the total liabilities of Holdings and its Subsidiaries, as calculated as at the date of consummation of the applicable Permitted Acquisition, which may properly be classified as current liabilities on a consolidated balance sheet of Holdings and its Subsidiaries in accordance with GAAP (assuming, for the purpose of this clause (B), that such Permitted Acquisition has been consummated), shall, in the case of both immediately preceding clauses (A) and (B), be calculated as the difference between the Net Working Capital at the end of the applicable Fiscal Year from the date of consummation of the Permitted Acquisition.

 

7


Schedule II

to Excess Cash Flow Certificate

Decrease (increase) in Working Capital, for the purposes of the calculation of Excess Cash Flow, means the following:

 

     Beg. of Period    End of Period

Consolidated current assets:

   $                 $             

Less (to the extent included in current assets):

     

Cash

  

 

  

 

Cash Equivalents

  

 

  

 

Deferred Tax Assets

  

 

  

 

Adjusted current assets

   $                 $             

Consolidated current liabilities:

   $                 $             

Less (to the extent included in current liabilities):

     

Revolving Loans

  

 

  

 

Current portion of Indebtedness and accrued interest thereon

  

 

  

 

Deferred Tax Liabilities

     

Current liabilities consisting of deferred revenue

     

Adjusted current liabilities

   $                 $             

Working Capital (adjusted current

   $                 $             

assets minus adjusted current liabilities)

     

Decrease (Increase) in Working Capital

      $             

(beginning of period minus end of period Working Capital)

     

 

8


Schedule III

to Excess Cash Flow Certificate

Calculation of Unfinanced Capital Expenditures

 

Expenditures capitalized during the Fiscal Year by Holdings and its Subsidiaries that, in conformity with GAAP, are or are required to be included as additions to property, plant or equipment or other long-term assets   

$                

Less, in each instance to the extent included above and without duplication:     

(i)     expenditures made in connection with the replacement, substitution, restoration or repair of assets to the extent financed with (x) insurance proceeds paid on account of the loss of or damage to the assets being replaced, restored or repaired or (y) awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced

  

 

(ii)    the purchase price of equipment that is purchased substantially concurrently with the trade-in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time,

  

 

(iii)  the purchase of plant, property or equipment to the extent financed with the proceeds of Dispositions that are not required to be applied to prepay Term Loans pursuant to Section 2.06(b)(ii) of the Credit Agreement

  

 

(iv)   expenditures that are accounted for as capital expenditures by Holdings, the Borrowers or any Subsidiary and that actually are paid for or reimbursed by a Person other than Holdings, the Borrowers or any Subsidiary

  

 

(v)    expenditures that are paid with proceeds of Equity Interests (including capital contributions) or the Available Amount

  

 

(vi)   the book value of any asset owned by the Borrowers or any Subsidiary prior to or during such period to the extent that such book value is included as a capital expenditure during such period as a result of such Person reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having been made in such period; provided that (x) any expenditure necessary in order to permit such asset to be reused shall be included as a Consolidated Capital Expenditure during the period in which such expenditure actually is made and (y) such book value shall have been included in Consolidated Capital Expenditures when such asset was originally acquired

  

 

 

9


(vii)    any capitalized interest expense reflected as additions to property, plant or equipment in the consolidated balance sheet of Holdings, the Borrowers and their Subsidiaries

  

 

(viii)  any non-cash compensation or other non-cash costs reflected as additions to property, plant or equipment in the consolidated balance sheet of Holdings, the Borrowers and their Subsidiaries

  

 

Equals: Consolidated Capital Expenditures

  

$                

Less:  Consolidated Capital Expenditures financed during the Fiscal Year under Capital Leases or other Indebtedness (excluding drawings under the Revolving Credit Facility)

  

 

Equals:Unfinanced Capital Expenditures

  

$                

 

10


Exhibit F

Form of Assignment and Assumption

Dated                                  ,             

Reference is made to the Credit Agreement dated as of January 31, 2014 (as extended, renewed, supplemented, modified, amended or restated from time to time, the Credit Agreement ) among J.A. Cosmetics Holdings, Inc., a Delaware corporation (“ Holdings ), as the initial borrower (the Initial Borrower ; each of the Initial Borrower, and each Domestic Subsidiary of Initial Borrower who hereafter becomes a “Borrower” under the Credit Agreement pursuant to a Joinder Agreement may be referred to individually, as a Borrower and collectively, as Borrowers ”), the Guarantors party thereto, certain Lenders which are signatories thereto, and Bank of Montreal, as Administrative Agent. Terms defined in the Credit Agreement are used herein with the same meaning, except terms otherwise defined herein.

                                                                                                                                                                                 (the “ Assignor ”) and                                                   (the Assignee ) agree as follows:

1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, the amount and specified percentage interest shown on Annex I hereto of the Assignor’s rights and obligations under the Credit Agreement as of the Effective Date (as defined herein), including, without limitation, the Assignor’s Commitments as in effect on the Effective Date and the Loans, if any, owing to the Assignor on the Effective Date and the Assignor’s Revolver Percentage of any outstanding L/C Obligations.

2. The Assignor (i) represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any adverse claim, lien, or encumbrance of any kind; (ii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other instrument or document furnished pursuant thereto; and (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any Subsidiary or the performance or observance by the Borrower or any Subsidiary of any of their respective obligations under the Credit Agreement or any other instrument or document furnished pursuant thereto.

3. The Assignee (i) confirms that it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered to the Lenders pursuant to Section 6.01(a) and (b) thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, the Assignor or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent to take such action as Administrative Agent on its behalf and to exercise such powers under the


Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto; (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender; and (v) specifies as its lending office (and address for notices) the offices set forth on its Administrative Questionnaire.

[4. The Assignee further: 8

(a) represents and warrants to Assignor and Agent that (i) it is Sponsor or an Affiliate of Sponsor (an “Affiliated Lender” and together with Sponsor and all other Affiliates of Sponsor that are Lenders under the Credit Agreement, collectively, the “Affiliated Lenders”) and (ii) after giving effect to such assignment, (A) the aggregate principal amount of the Term Loan held by the Affiliated Lenders (other than Holdings and its Subsidiaries and Debt Fund Affiliates) does not exceed twenty-five percent (25%) of the aggregate principal amount of all Term Loans and incremental term loans then outstanding under the Credit Agreement and (B) the aggregate number of Affiliated Lenders (other than Debt Fund Affiliates) holding the Term Loans and incremental term loans does not constitute fifty percent (50%) or more of the aggregate number of all Lenders holding a portion of the Term Loans and incremental term loans at the time of such assignment;

(b) acknowledges and agrees that it shall have no right to (i) attend (including by telephone or electronic means) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Sponsor, the Borrowers or the Guarantors are not invited or (B) receive any information or material prepared by the Administrative Agent or any Lender or any communication by or among the Administrative Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Sponsor, the Borrowers or the Guarantors or any of their representatives; and

(c) acknowledges and agrees that for purposes of the Credit Agreement and for purposes of determining whether the Required Lenders have (i) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom, (ii) otherwise acted on any matter related to any Loan Document or (iii) directed or required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, an Affiliated Lender (other than Holdings and its Subsidiaries) shall be deemed, to the extent not adversely affecting such Affiliated Lender (other than Holdings and its Subsidiaries) disproportionately as compared to other Lenders, to have voted its interest as a Lender without discretion in the same proportion as the allocation of voting with respect to such matter by Lenders who are not Affiliated Lenders; provided, that no (i) amendment, modification, waiver or

 

8   Include only if Assignment is to Sponsor or any of its Affiliates (other than Debt Fund Affiliates) pursuant to Section 10.06(g) of the Credit Agreement.


other action with respect to any Loan Document shall deprive any Affiliated Lender of its pro rata share of any payments to which such Affiliated Lender in entitled under the Loan Documents or any vote which affects such Affiliated Lender disproportionately without such Affiliated Lender providing its consent; and in furtherance of the foregoing, (x) such Affiliated Lender agrees to execute and deliver to the Administrative Agent any instrument reasonably requested by the Administrative Agent to evidence the voting of its interest as a Lender in accordance with the provisions of Section 10.06(g) of the Credit Agreement; provided that if such Affiliated Lender fails to promptly execute such instrument such failure shall in no way prejudice any of the Administrative Agent’s rights under Section 10.06(g)(B) of the Credit Agreement and (y) the Administrative Agent is hereby appointed (such appointment being coupled with an interest) by such Affiliated Lender as such Affiliated Lender’s attorney in fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s reasonable discretion to take any action and to execute and instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of Section 10.06(g) of the Credit Agreement; and (ii) such Affiliated Lender in its capacity as a Lender shall retain the right to consent to, in addition to any other action which would affect such Affiliated Lender in a disproportionately adverse manner than the effect of such action on other Lenders that are not Affilaited Lenders an extension of the maturity date of its Term Loans, reduction in the principal amount of its Term Loans, reduction in the interest rate thereof or postponement of the scheduled due date therefor.]

5. As consideration for the assignment and sale contemplated in Annex I hereof, the Assignee shall pay to the Assignor on the Effective Date in Federal funds the amount agreed upon between them. It is understood that commitment and/or letter of credit fees accrued to the Effective Date with respect to the interest assigned hereby are for the account of the Assignor and such fees accruing from and including the Effective Date are for the account of the Assignee. Each of the Assignor and the Assignee hereby agrees that if it receives any amount under the Credit Agreement which is for the account of the other party hereto, it shall receive the same for the account of such other party to the extent of such other party’s interest therein and shall promptly pay the same to such other party.

6. The effective date for this Assignment and Assumption shall be                                      (the Effective Date ”). Following the execution of this Assignment and Assumption, it will be delivered to the Administrative Agent for acceptance and recording by the Administrative Agent and, if required, the Borrower.

7. Upon such acceptance and recording, as of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment and Assumption, have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to the extent provided in this Assignment and Assumption, relinquish its rights and be released from its obligations under the Credit Agreement.


8. Upon such acceptance and recording, from and after the Effective Date, the Administrative Agent shall make all payments under the Credit Agreement in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and commitment fees with respect thereto) to the Assignee. The Assignor and Assignee shall make all appropriate adjustments in payments under the Credit Agreement for periods prior to the Effective Date directly between themselves.

9. This Assignment and Assumption shall be governed by, and construed in accordance with, the laws of the State of New York.

[Remainder of Page Intentionally Left Blank; Signature Pages Follow]


[Assignor Lender]
By    
  Name    
  Title    

 

[Assignee Lender]
By    
  Name    
  Title    

 

[Accepted and consented this          day of                     
J.A. COSMETICS US, INC., a Delaware corporation, as Borrower Agent
By    
  Name    
  Title]  9    

 

Accepted and consented to by the

Administrative Agent [and L/C Issuer]  10

this      day of                 

BANK OF MONTREAL, as Administrative Agent [and L/C Issuer]
By    
  Name    
  Title       ]

 

9 Include only if required pursuant to Section 10.06 of the Credit Agreement.
10   Include only if required pursuant to Section 10.06 of the Credit Agreement.


Annex I

to Assignment and Assumption

The assignee hereby purchases and assumes from the assignor the following interest in and to all of the Assignor’s rights and obligations under the Credit Agreement as of the effective date.

 

Facility Assigned    Aggregate

Commitment/Loans

For All Lenders

   Amount of

Commitment/Loans

Assigned

   Percentage Assigned

of

Commitment/Loans

Revolving Credit 11    $                             $                                      %
Term Loan    $                             $                                      %

 

11   May not be assigned to Affiliated Lenders


 

 

EXHIBIT G

CLOSING CHECKLIST

CREDIT AGREEMENT

Dated as of January 31, 2014

among

J.A. COSMETICS HOLDINGS, INC., as Initial Borrower,

and each other Person that becomes a Borrower hereunder by execution of a Joinder Agreement,

as the Borrowers,

THE OTHER PERSONS PARTY HERETO THAT ARE DESIGNATED AS LOAN

PARTIES,

as Guarantors,

CERTAIN FINANCIAL INSTITUTIONS,

as Lenders,

BANK OF MONTREAL,

as Administrative Agent, Swing Line Lender and an L/C Issuer

and

BANK OF MONTREAL, ACTING UNDER ITS TRADE NAME

BMO CAPITAL MARKETS,

as Arranger and Bookrunner

 

 

 

Capitalized terms used herein and otherwise not defined

have the meanings ascribed to them in the Credit Agreement.

Items in bold indicate items to be prepared or obtained

by the Initial Borrower or the Initial Borrower’s counsel

 

1


   P ARTIES TO THE T RANSACTION :
A DMINISTRATIVE A GENT :    B ANK OF M ONTREAL
   111 West Monroe
   Chicago, IL 60603
  

###

   Phone: ###
   Email: ###
  

###

   Phone: ###
   Email: ###
  

###

   Phone: ###
   Email: ###
  

###

   Email: ###
A DMINISTRATIVE A GENT S    K ATTEN M UCHIN R OSENMAN LLP
C OUNSEL :    525 West Monroe Street
   Chicago, Illinois 60661
  

###

   Phone: ###
   Email: ###
  

###

   Phone: ###
   Email: ###
  

###

   Phone: ###
   Email: ###
I NITIAL B ORROWER :    J.A. C OSMETICS H OLDINGS , I NC .
   301 Commerce Street, Suite 3300
   Fort Worth, TX 76102
S PONSOR :    TPG G ROWTH II A DVISORS
   345 California Street, Suite 3300
   San Francisco, California 94104
  

###

   Email: ###
  

###

   Email: ###
  

###

   Email: ###

 

2


I NITIAL B ORROWER AND S PONSOR S    K IRKLAND & E LLIS LLP
C OUNSEL :    333 South Hope Street
   Los Angeles, California 90071
  

###

   Phone: ###
   Email: ###
  

###

   Phone: ###
   Email: ###
  

###

   Phone: ###
   Email: ###

 

3


S UBORDINATED L ENDER :    P ENNANT P ARK I NVESTMENT C ORPORATION
   590 Madison Avenue, 15 th Floor
   New York, New York 10022
S UBORDINATED L ENDER A GENT :    U.S. B ANK , N ATIONAL A SSOCIATION
   225 Asylum Street, 23 rd Floor
   Hartford, Connecticut 06103
S UBORDINATED L ENDER S    L ATHAM & W ATKINS LLP
C OUNSEL :    885 Third Avenue
   New York, New York 10022
  

###

   Phone: ###
   Email: ###
  

###

   Phone: ###
   Email: ###

 

4


P ARTIES TO THE T RANSACTION :

 

A DMINISTRATIVE A GENT    BMO, as Administrative Agent
BMO    Bank of Montreal
B ORROWERS    (i) prior to the consummation of the Closing
   Date Acquisition, Initial Borrower and (ii) after
   giving effect to the consummation of the
   Closing Date Acquisition, J.A. Cosmetics, JA
   139 Fulton, JA 741 Retail and JA Cosmetics
   Retail
G UARANTORS    after giving effect to the consummation of the
   Closing Date Acquisition, Holdings
JA 139 F ULTON    JA 139 FULTON STREET CORP., a New
   York corporation
JA 741 R ETAIL    JA 741 RETAIL CORP., a New York
   corporation
J.A. C HINA H OLDINGS    J.A. China Holdings, LLC, a Delaware limited
   liability company
JA C OSMETICS R ETAIL    JA COSMETICS RETAIL, INC., a New York
   corporation
J.A. C OSMETICS    J.A. Cosmetics US, Inc., a Delaware
   corporation
J.A. S HANGHAI    J.A. Cosmetics Trading (Shanghai) Co., Ltd., a
   corporation existing under the laws of China
H OLDINGS    J.A. Cosmetics Holdings, Inc., a Delaware
   corporation
I NITIAL B ORROWER    Holdings
L ENDERS    BMO, Jefferies Finance LLC, Ally
   Commercial Finance LLC, U.S. Bank National
   Association
L OAN P ARTIES    Borrowers, Holdings and any other Person who
   becomes a Borrower by Joinder to the Credit
   Agreement and each Guarantor
S ELLERS    J.A. Cosmetics, Corp., a New Jersey
   corporation, TSG5 L.P., a Delaware limited
   partnership and each of the TSG Co-Investors
   (as defined in the Stock Purchase Agreement)
S PONSOR    TPG Growth II Advisors and its Controlled
   Investment Affiliates
S UBORDINATED L ENDERS    PennantPark Investment Corporation,
   PennantPark Floating Rate Capital Ltd. and
   PennantPark Credit Opportunities Fund, LP
S UBORDINATED L ENDER A GENT    U.S. Bank National Association
S WING L INE L ENDER    BMO

 

5


I. P RIMARY L OAN D OCUMENTS

 

  1. Credit Agreement by and among Administrative Agent, Lenders and Initial Borrower

 

  

(a)     Schedules to Credit Agreement

  

Schedule 2.01

       —       Commitments and Applicable Percentages
  

Schedule 5.05

       —       Litigation
  

Schedule 5.07(b)(1)

       —       Owned Real Estate
  

Schedule 5.07(b)(2)

       —       Leased Real Estate
  

Schedule 5.09

       —       Insurance
  

Schedule 5.11(d)

       —       Pension Plans
  

Schedule 5.11(e)

       —       Foreign Plans
  

Schedule 5.12

       —       Subsidiaries; Capitalization; Other Equity Investments
  

Schedule 5.16

       —       Labor Matters
  

Schedule 7.01

       —       Existing Indebtedness
  

Schedule 7.02

       —       Existing Liens
  

Schedule 7.03

       —       Existing Investments
  

Schedule 7.08

       —       Affiliate Transactions
  

Schedule 10.02

       —       Administrative Agent’s Office (and Account)
  

(b)     Exhibits to Credit Agreement

  

Exhibit A

  Form of Committed Loan Notice
  

Exhibit B

  Form of Swing Line Loan Notice
  

Exhibit C-1

  Form of Revolving Loan Note
  

Exhibit C-2

  Form of Term Loan Note
  

Exhibit D

  Form of Compliance Certificate
  

Exhibit E

  Form of Excess Cash Flow Certificate
  

Exhibit F

  Form of Assignment and Assumption
  

Exhibit G

  Closing Checklist
  

Exhibit H

  Form of Joinder to Credit Agreement

 

  2. Joinder to Credit Agreement among J.A. Cosmetics, JA 139 Fulton, JA 741 Retail, JA Cosmetics Retail and Holdings and acknowledged by the Administrative Agent and Initial Borrower

 

  3. Revolving Notes in the aggregate principal amount of up to $20,000,000, payable to the following Lenders:

 

(a) BMO

   $ 13,500,000.00   

(b) US Bank

   $ 2,500,000.00   

(c) Ally Commercial Finance LLC*

   $ 4,000,000.00   
  

 

* Lender did not request a Note

 

6


  4. Term Notes in the aggregate principal amount of $ 105,000,000, payable to the following Lenders:

 

(a) BMO

   $ 74,000,000.00   

(b) US Bank

   $ 2,500,000.00   

(c) Ally Commercial Finance LLC*

   $ 21,000,000.00   

(d) Jefferies Finance LLC*

   $ 7,500,000.00   

 

* Lender did not request a Note

 

  5. Subordination and Intercreditor Agreement among Initial Borrower, Administrative Agent, Subordinated Lender Agent and Subordinated Lenders

 

  6. Joinder to Subordination and Intercreditor Agreement among the Loan Parties (other than Initial Borrower) and acknowledged by Administrative Agent, Subordinated Lender Agent, Subordinated Lenders and Initial Borrower

 

II. P RIMARY C OLLATERAL D OCUMENTS

 

  7. Pledge and Security Agreement by and among Initial Borrower and Administrative Agent, for the benefit of the Lender Parties

 

  (a) Schedules to Pledge and Security Agreement

 

 

(i)

   Schedule I       Legal Names; Organizational Identification Numbers; States or Jurisdictions of Organization
 

(ii)

   Schedule II       United States Registered Copyrights
 

(iii)

   Schedule III       U.S. Federal Patents and Applications
 

(iv)

   Schedule IV       U.S. Federal Registered Trademarks and Applications
 

(v)

   Schedule V       Location of Grantors
 

(vi)

   Schedule VI       Deposit Accounts, Securities Accounts and Commodities Accounts
 

(vii)

   Schedule VII       UCC Financing Statements
 

(viii)

   Schedule VIII       Commercial Tort Claims
 

(ix)

   Schedule IX       Pledged Debt
 

(x)

   Schedule X       Pledged Shares

 

  (b) Exhibits to Pledge and Security Agreement

 

  (i) Exhibit A   —   Pledge Amendment

 

  (ii) Exhibit B   —   Grant of a Security Interest – [Trademarks][Copyrights][Patents]

 

  (iii) Exhibit C   —   Form of Security Agreement Supplement

 

7


  (c) Stock Certificate No. A-1, representing 100% of the issued and outstanding stock of J.A. Cosmetics

 

 

  (i) Irrevocable Proxy executed by Initial Borrower with respect to its equity interests in J.A. Cosmetics

 

  (ii) Stock Power, undated and executed in blank

 

  8. Joinder to Pledge and Security Agreement among the Loan Parties (other than Initial Borrower), and Administrative Agent

 

  (a) Irrevocable Proxy executed by J.A. Cosmetics with respect to its equity interests in J.A. China Holdings

 

  (b) Stock Certificate No. 1, representing 100% of the issued and outstanding stock of JA Cosmetics Retail

 

  (i) Irrevocable Proxy executed by J.A. Cosmetics with respect to its equity interests in J.A. Cosmetics Retail

 

  (ii) Stock Power, undated and executed in blank

 

  (c) Stock Certificate No. 1, representing 100% of the issued and outstanding stock of JA 741 Retail

 

  (i) Irrevocable Proxy executed by JA Cosmetics Retail with respect to its equity interests in JA 741 Retail

 

  (ii) Stock Power, undated and executed in blank

 

  (d) Stock Certificate No. 1, representing 100% of the issued and outstanding stock of JA 139 Fulton

 

  (i) Irrevocable Proxy executed by JA Cosmetics Retail with respect to its equity interests in JA 139 Fulton

 

  (ii) Stock Power, undated and executed in blank

 

  9. Collateral Assignment of Closing Date Acquisition Documents executed between the Initial Borrower and Administrative Agent

 

  10. Trademark Security Agreement by J.A. Cosmetics

Schedule 1 - Description of Trademarks and Trademark Applications

 

  11. Patent Security Agreement by J.A. Cosmetics

Schedule 1 - Description of Patents and Patent Applications

 

III. A NCILLARY D OCUMENTS

 

  12. Initial Notice of Borrowing

 

8


  13. Funds Flow Memorandum

 

  14. Unaudited Monthly Financial Statements

 

  15. Officer’s Closing Certificate

 

  16. Solvency Certificate

 

  17. Fee Letter executed by Initial Borrower and acknowledged by Administrative Agent

 

  18. Insurance Certificates

 

  (a) Property Insurance Certificates naming Administrative Agent, for the benefit of the Lender Parties, as mortgagee and lender’s loss payee

 

  (b) Liability Insurance Certificates naming Administrative Agent, for the benefit of the Lender Parties, as additional insured

 

IV. O RGANIZATIONAL D OCUMENTS

 

  19. S ECRETARY S C ERTIFICATE OF I NITIAL B ORROWER

Exhibit A     —    Certificate of Incorporation certified by the Secretary of the State of Delaware

Exhibit B     —    Bylaws, as amended through the Closing Date

Exhibit C     —    Good Standing Certificate (Delaware)

Exhibit D     —    Resolutions

Exhibit E     —    Incumbency

 

  20. S ECRETARY S C ERTIFICATE OF J.A. C OSMETICS

Exhibit A     —    Certificate of Incorporation certified by the Secretary of the State of Delaware

Exhibit B     —    Bylaws, as amended through the Closing Date

Exhibit C     —    Good Standing Certificate (Delaware)

Exhibit D     —    Resolutions

Exhibit E     —    Incumbency

 

  21. S ECRETARY S C ERTIFICATE OF JA C OSMETICS R ETAIL

Exhibit A     —    Certificate of Incorporation certified by the Secretary of the State of New York

Exhibit B     —    Bylaws, as amended through the Closing Date

Exhibit C     —    Good Standing Certificate (New York)

Exhibit D     —    Resolutions

Exhibit E     —    Incumbency

 

9


  22. S ECRETARY S C ERTIFICATE OF JA 741 R ETAIL

Exhibit A     —    Certificate of Incorporation certified by the Secretary of the State of New York

Exhibit B     —    Bylaws, as amended through the Closing Date

Exhibit C     —    Good Standing Certificate (New York)

Exhibit D     —    Resolutions

Exhibit E     —    Incumbency

 

  23. S ECRETARY S C ERTIFICATE OF JA 139 F ULTON

Exhibit A     —    Articles of Incorporation certified by the Secretary of the State of New York

Exhibit B     —    Bylaws, as amended through the Closing Date

Exhibit C     —    Good Standing Certificate (New York)

Exhibit D     —    Resolutions

Exhibit E     —    Incumbency

 

V. D UE D ILIGENCE

 

  24. Perfection Certificate

 

  (a) Schedules to Perfection Certificate

 

  25. UCC, State and Federal Tax Lien and Judgment Searches for the entities and in the locations listed on Exhibit A attached hereto

 

  26. Intellectual Property Search Results for the entities listed on Exhibit A attached hereto

 

  27. Financing Statements listed on Exhibit B hereto

 

  28. W-9 for Holdings and each of the Loan Parties

 

  29. KYC Information

 

VI. D EBT R EPAYMENT AND T ERMINATION D OCUMENTS

 

  30. Payoff Letter executed and delivered by each of the following financial institution:

 

  (a) U.S. Bank National Association

 

  31. UCC Terminations and Intellectual Property Security Agreement Terminations listed on Exhibit C attached hereto

 

VII.  C ERTIFIED C OPIES OF C LOSING D ATE A CQUISITION D OCUMENTS

 

  32. Stock Purchase Agreement, together with all exhibits and schedules thereto

 

 

10


  33. Escrow Agreement

 

  34. Rollover Agreement

 

  35. Haynes Option Termination Agreement

 

  36. Stockholders Agreement

 

  37. Registration Rights Agreement

 

  38. Restrictive Covenant and Non-Competition Agreements

 

  39. TSG Non-Solicitation Agreement

 

  40. Haynes Non-Solicitation Agreement

 

  41. Cosmopack Letter Agreement

 

  42. Evidence of termination of Agreements with Insiders (including, without limitation, the TSG5 Management Agreement and Wellrise Asset Purchase Agreement and Consulting Agreement)

 

  43. Employment Agreements with the following individuals:

 

  (a) Alan Shamah

 

  (b) Joseph Shamah

 

  (c) Frank Pisani

 

  (d) William Zhao

 

  44. Landlord Estoppels

 

  (a) 45 Mayhill Street, Saddle Brook, NJ 07663

 

  (b) 4-16 West 33rd Street, in the City of New York, State of New York

 

VIII. C ERTIFIED C OPIES O F S UBORDINATED I NDEBTEDNESS D OCUMENTS

 

  45. Subordinated Loan Agreement , together with all exhibits and schedules thereto

 

  46. Joinder to Second Lien Credit Agreement among J.A. Cosmetics, JA 139 Fulton, JA 741 Retail, JA Cosmetics Retail and Holdings and acknowledged by the Subordinated Lender Agent and Initial Borrower

 

  47. Second Lien Pledge and Security Agreement by and among the Initial Borrower, Subordinated Lender Agent and the other parties from time to time party thereto

 

 

11


  48. Joinder to Second Lien Pledge and Security Agreement among the Loan Parties (other than Initial Borrower), and Subordinated Lender Agent

 

  49. Second Lien Trademark Security Agreement by J.A. Cosmetics

 

  50. Second Lien Patent Security Agreement by J.A. Cosmetics

 

  51. Second Lien Collateral Assignment of Closing Date Acquisition Documents executed between the Initial Borrower and Subordinated Lender Agent

 

IX. C ERTIFIED C OPIES OF M ISCELLANEOUS D OCUMENTS

 

  52. Management Agreement

 

X. L EGAL O PINIONS

 

  53. Phase 1 Opinion of Counsel to the Loan Parties (Kirkland & Ellis LLP) in connection with the Loan Documents, addressed to Administrative Agent and the other Lender Parties

 

  54. Phase 2 Opinion of Counsel to the Loan Parties (Kirkland & Ellis LLP) in connection with the Loan Documents, addressed to Administrative Agent and the other Lender Parties

 

XI. P OST -C LOSING O BLIGATIONS

 

  55. Post-Closing Lien Search Reports

 

  56. Insurance Endorsements

 

  57. Deposit Account Control Agreements executed among the applicable Loan Parties, Administrative Agent and the following depository institutions:

 

  (a) US Bank

 

  (b) JPMorgan Chase

 

  58. Landlord Waiver and Collateral Access Agreement regarding the real property located at the following:

 

  (a) 45 Mayhill Street, Saddle Brook, NJ 07663

 

  (b) 4-16 West 33rd Street, in the City of New York, State of New York

 

12


E XHIBIT A

S EARCHES

 

Debtor

  

Search Jurisdiction(s)

J.A. Cosmetics Holdings, Inc.

  

DE SOS

Tarrant County, TX

J.A. Cosmetics US, Inc.

  

DE SOS

Bergen County, NJ

New York County, NY

J.A. China Holdings, LLC

   DE SOS

J.A. Cosmetics Trading (Shanghai) Co., Ltd.

  

District of Columbia SOS

New York County, NY

JA Cosmetics Retail, Inc.

  

NY SOS

New York County, NY

JA 741 Retail Corp.

  

NY SOS

New York County, NY

JA 139 Fulton Street Corp.

  

NY SOS

New York County, NY

J.A. Cosmetics Corp.

   NJ SOS

 

13


E XHIBIT B

F INANCING S TATEMENTS

 

Name

   Jurisdiction      Type of
Filing
     Filing
Date
   Filing No.    Post-filing
Search

J.A. Cosmetics Holdings, Inc.

     DE SOS         Blanket            

J.A. Cosmetics US, Inc.

     DE SOS         Blanket            

JA COSMETICS RETAIL, INC.

     NY SOS         Blanket            

JA 741 RETAIL CORP.

     NY SOS         Blanket            

JA 139 FULTON STREET CORP.

     NY SOS         Blanket            

 

14


E XHIBIT C

L IEN R ELEASES , M ORTGAGE R ELEASES , IP R ELEASES

 

Debtor Name

  

Secured Party

  

Jurisdiction

  

Orig. Filing Date

  

Orig. Filing No.

  

Termination Filing
No./ Date

J.A. Cosmetics US, Inc.

   U.S. Bank National Association, as Administrative Agent    DE SOS    12/14/11    20114795079   

J.A. China Holdings, LLC

   U.S. Bank National Association, as Administrative Agent    DE SOS    12/14/11    20114795277   

J.A. Cosmetics US, Inc.

   U.S. Bank National Association    USPTO    12/21/11    Reel/Frame: 4683/0802   

 

15


Exhibit H

Form of Joinder to Credit Agreement

 

                     ,             

This Joinder to Credit Agreement (this “Agreement”) dated as of this [      ] day of [                      ], [              ] is made by [                      , a                      and                      , a (each a “New Borrower” and collectively, the “New Borrowers”)] and [                      , a                      and                      a                      (each a “New Loan Party” and collectively, the “New Loan Parties”)] to and in favor of Bank of Montreal, in its capacity as Administrative Agent for the Lenders and L/C Issuer parties under the Credit Agreement referred to below.

Reference hereby is made to that certain Credit Agreement, dated as of January 31, 2014 (as extended, renewed, modified, supplemented, amended or restated from time to time, the “ Credit Agreement ”) by and among J.A. Cosmetics Holdings, Inc., a Delaware corporation (“ Holdings ”), as the initial borrower (the “ Initial Borrower ”; the Initial Borrower, together with each other Person who joins in the execution of the Credit Agreement and agrees to be bound as a Borrower thereby pursuant to a Joinder Agreement, are referred to individually as a “ Borrower ” and collectively as the “ Borrowers ”), the Guarantors party thereto, certain Lenders which are signatories thereto, and Bank of Montreal, as Administrative Agent for the Lenders and L/C Issuer. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Credit Agreement.

[Each New Borrower hereby (i) acknowledges, agrees and elects to be a “ Borrower ” and a “ Loan Party ” for all purposes of and under the Credit Agreement, each of the Notes referenced therein and each of the other Loan Documents and delivered in connection therewith, effective from the date hereof and (ii) appoints Initial Borrower, and from and after the consummation of the Closing Date Acquisition, J.A. Cosmetics US, Inc., a Delaware corporation (“ J.A. Cosmetics ”), to act on its behalf as the “Borrower Agent”, and Initial Borrower, and from and after the consummation of the Closing Date Acquisition, J.A. Cosmetics, acknowledges and agrees that it shall act as “Borrower Agent” for each New Borrower, under and in accordance with the terms and conditions of the Credit Agreement. All references in the Credit Agreement and the other Loan Documents to the terms “Borrower” or “Borrowers” and “Loan Party” or “Loan Parties” shall be deemed to include each New Borrower. By its execution of this Agreement, each New Borrower hereby confirms that the representations and warranties contained in Article V of the Credit Agreement are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) as to such New Borrower as of the effective date of this Agreement, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such earlier date). Without limiting the generality of the foregoing, each New Borrower hereby agrees to perform all the obligations of a Borrower and a Loan Party under, and to be bound in all respects by the terms of, the Credit Agreement, each of the Notes and the Fee Letter to the same extent and with the same force and effect as if it were a signatory party thereto as a Borrower and a Loan Party and hereby acknowledges and agrees that it is jointly and severally liable for all of the now existing and hereafter arising Secured Obligations.]


[Each New Loan Party hereby (i) acknowledges, agrees and elects to be a “ Loan Party ” and a “ Guarantor ” for all purposes of and under the Credit Agreement and each of the other Loan Documents and delivered in connection therewith, effective from the date hereof. All references in the Credit Agreement and the other Loan Documents to the terms “Loan Party”, “Loan Parties”, “Guarantor” or “Guarantors” shall be deemed to include each New Loan Party. By its execution of this Agreement, each New Loan Party hereby confirms that the representations and warranties contained in Article V of the Credit Agreement are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) as to such New Loan Party as of the effective date of this Agreement, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such earlier date). Without limiting the generality of the foregoing, each New Loan Party hereby agrees to perform all the obligations of a Loan Party and a Guarantor under, and to be bound in all respects by the terms of, the Credit Agreement to the same extent and with the same force and effect as if it were a signatory party thereto as a Loan Party and a Guarantor.]

[The Administrative Agent, for and on behalf of the Lenders, in accordance with the Credit Agreement, hereby irrevocably releases and forever discharges Holdings of all of its Secured Obligations solely in its capacity as a Borrower (but not, for the avoidance of doubt, any Secured Obligations of Holdings in its capacity as a Guarantor and Grantor, which Secured Obligations (and the Liens granted to secure such Secured Obligations) are hereby reaffirmed by Holdings) with respect to the Credit Agreement or any of the other Loan Documents on or prior to the date hereof. The New Borrower hereby assumes (i) all such Secured Obligations of Holdings in its capacity as a Borrower under and with respect to the Credit Agreement and each of the other Loan Documents, it being agreed and understood that such release of Holdings and assumption by the New Borrower shall not constitute or effect a novation of such Secured Obligations under the Credit Agreement or any other Loan Document and (ii) all of Holding’s obligations under the Fee Letter. It is the express intention of the parties hereto to reaffirm the Indebtedness created under the Credit Agreement which is evidenced by the Notes provided for therein and secured by the Collateral.] 1

Except as specifically modified hereby, all of the terms and conditions of the Credit Agreement and other Loan Documents shall remain unchanged and in full force and effect.

 

1   To be used solely in the Agreement delivered on the Closing Date.


No reference to this Agreement need be made in the Credit Agreement or in any other Loan Document or other document or instrument making reference to the same, any reference to Loan Documents in any of such to be deemed a reference to the Credit Agreement, or other Loan Documents, as applicable, as modified hereby.

Each of the undersigned acknowledges that this Agreement shall be effective upon execution by each New Loan Party and the Administrative Agent. This Agreement shall be construed in accordance with and governed by the internal laws of the State of New York.

This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart. Delivery of an executed signature page of this Agreement by facsimile transmission or electronic transmission shall be as effective as delivery of a manually executed counterpart hereof.

[Remainder of Page Intentionally Left Blank; Signature Page to Follow]


Very truly yours,
[NEW BORROWER(S):
[                                                                                        ]
By:    
Name:    
Title                                                                                                ]
Very truly yours,
[NEW LOAN PARTY:
[                                                                                        ]
By:    
Name:    
Title:   ]

Joinder to Credit Agreement


BANK OF MONTREAL,

as Administrative Agent

By:    
Name:    
Title:    

Joinder to Credit Agreement


Acknowledged and accepted as of the date first written above:

 

[J.A. COSMETICS HOLDINGS, INC.]
By:    
Name:    
Title:    
[J.A. COSMETICS US, INC.]
By:    
Name:    
Title:    
[JA COSMETICS RETAIL, INC.]
By:    
Name:    
Title:    
[JA 741 RETAIL CORP.]
By:    
Name:    
Title:    
[JA 139 FULTON STREET CORP.]
By:    
Name:    
Title:    

Joinder to Credit Agreement

Exhibit 10.6(b)

FIRST AMENDMENT TO CREDIT AGREEMENT

THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this “ Amendment ”) is entered into as of June 7, 2016 (the “ First Amendment Effective Date ”) by and among e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.), a Delaware corporation (“ e.l.f. Cosmetics ”), JA 139 Fulton Street Corp., a New York corporation (“ JA 139 Fulton ”), JA 741 Retail Corp., a New York corporation (“ JA 741 Retail ”), JA Cosmetics Retail, Inc., a New York corporation (“ JA Cosmetics Retail ”), J.A. RF, LLC, a Delaware limited liability company (“ JA RF ”), and J.A. Cherry Hill, LLC, a Delaware limited liability company (“ JA Cherry Hill ”; collectively with e.l.f. Cosmetics, JA 139 Fulton JA 741 Retail, JA Cosmetics Retail and JA RF, the “ Borrowers ”), e.l.f. Beauty, Inc. (formerly known as J.A. Cosmetics Holdings, Inc.), a Delaware corporation (“ e.l.f. Beauty ”), the other Persons party hereto that are designated as a “Loan Party” on the signature pages hereof, Bank of Montreal, a Canadian chartered bank acting through its Chicago branch (in its individual capacity, “ BMO ”), as Administrative Agent, an L/C Issuer and as a Lender, and the other Lenders signatory hereto.

W I T N E S S E T H:

WHEREAS, Borrowers, the other Loan Parties, BMO, as Administrative Agent, an L/C Issuer and as a Lender, and the other Lenders from time to time party thereto are parties to that certain Credit Agreement dated as of January 31, 2014 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”); and

WHEREAS, the Loan Parties have requested, among other things, (a) that the applicable Lenders (i) increase the aggregate principal amount of the Revolving Credit Facility by $5,000,000 and (ii) make additional Term Loans in the aggregate principal amount of $64,000,000 and (b) that the Lenders amend certain provisions of the Credit Agreement, and, subject to the satisfaction of the conditions set forth herein, the Administrative Agent and the Lenders signatory hereto are willing to do so, on the terms set forth herein;

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties agree as follows:

1. Defined Terms . Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Credit Agreement.

2. Amendments to Credit Agreement . Upon satisfaction of the conditions set forth in Section 3 hereof, the Credit Agreement is hereby amended as follows:

(a) Section 1.01 (Defined Terms) of the Credit Agreement is hereby amended by, as applicable (i) adding the following defined terms and the definitions therefor in appropriate alphabetical order and (ii) restating the applicable defined terms and the definitions therefor in appropriate alphabetical order:

“Applicable Percentage” means (a) in respect of the Revolving Credit Facility, with respect to any Revolving Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Credit Facility, represented by the amount of the


Revolving Credit Commitment of such Revolving Lender at such time; provided that if the Aggregate Revolving Credit Commitments have been terminated at such time, then the Applicable Percentage of each Revolving Lender shall be the Applicable Percentage of such Revolving Lender immediately prior to such termination and after giving effect to any subsequent assignments, and (b) in respect of the Term Loan Facility, with respect to any Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Term Loan Facility represented by (i) on or prior to the Closing Date, such Term Lender’s Term Loan Commitment at such time, (ii) thereafter but prior to the First Amendment Effective Date, the Outstanding Amount of such Term Lender’s Term Loans at such time, (iii) on the First Amendment Effective Date, the sum of (1) the Outstanding Amount of such Term Lender’s Closing Date Term Loans at such time plus (2) such Term Lender’s First Amendment Term Loan Commitment at such time and (iv) thereafter, the Outstanding Amount of such Term Lender’s Term Loans at such time. The initial Applicable Percentage of each Lender with respect to each Facility is set forth opposite the name of such Lender on Schedule 2.01 (or, solely with respect to the First Amendment Term Loans, opposite the name of such Lender on Schedule 2(c) to the First Amendment) or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

“Closing Date Term Loan” has the meaning specified in Section 2.01(b)(i).

“Closing Date Term Loan Commitment” means, as to each Term Lender, its obligation to make Closing Date Term Loans to Borrowers on the Closing Date pursuant to Section 2.01(b) in an aggregate original principal amount equal to the amount set forth opposite such Term Lender’s name on Schedule 2.01.

“First Amendment Dividend” means the declaration and making of a cash dividend payment on account of the Equity Interests of Holdings to its shareholders within ten (10) Business Days following the First Amendment Effective Date in a net amount (after giving effect to any repayment to Holdings of any outstanding loans owing from direct or indirect holders of Equity Interests of Holdings) of approximately, and not to exceed, $68,000,000 in the aggregate.

“First Amendment Effective Date” means June 7, 2016.

“First Amendment Term Lenders” means those Term Lenders with First Amendment Term Loan Commitments and, after the First Amendment Term Loans are made, those Term Lenders holding First Amendment Term Loans.

“First Amendment Term Loan” has the meaning specified in Section 2.01(b)(ii).

“First Amendment Term Loan Commitment” means, as to each Term Lender, its obligation to make First Amendment Term Loans to Borrowers on the First Amendment Effective Date pursuant to Section 2.01(b) in an aggregate original principal amount equal to the amount set forth opposite such Term Lender’s name on Schedule 2(c) to the First Amendment under the heading “First Amendment Term Loan Commitments”.

 

2


“First Amendment to Credit Agreement” shall mean that certain First Amendment to Credit Agreement, dated as of the First Amendment Effective Date, by and among the Borrowers, the Guarantors party thereto, the Administrative Agent and the Lenders party thereto.

“Intercreditor Agreement” means that certain subordination agreement among Administrative Agent, U.S. Bank National Association, as collateral agent for the holders of Subordinated Indebtedness, the holders of Subordinated Indebtedness and the Loan Parties dated as of the date hereof and in form and substance reasonably acceptable to Administrative Agent and as amended as of the First Amendment Effective Date and as may be further amended in accordance with the terms thereof.

“Revolving Credit Facility” means the facility described in Sections 2.01(a), 2.03 and 2.04 providing for Revolving Loans, Letters of Credit and Swing Line Loans to or for the benefit of Borrowers by the Revolving Lenders, L/C Issuer and Swing Line Lender, as the case may be, in the maximum aggregate principal amount at any time outstanding of $25,000,000 as adjusted from time to time pursuant to the terms of this Agreement.

“Second Amendment to Subordinated Loan Agreement” shall mean that certain Second Amendment to Second Lien Credit Agreement, dated as of the First Amendment Effective Date, by and among the Borrowers, the Guarantors party thereto, the Subordinated Lender Agent and the Subordinated Lenders party thereto.

“Securitization” means an existing or proposed public or private offering of securities by, or other financing facility involving, a Lender or any of its Affiliates or their respective successors and assigns, which represent an interest in, or which are collateralized, in whole or in part, by the Loans or the Commitments.

“Term Loan” means a Base Rate Loan or a Eurodollar Rate Loan made to Borrowers pursuant to Section 2.01(b) (including, without limitation, the First Amendment Term Loan) or any Increase under an incremental term facility pursuant to Section 2.18.

“Term Loan Commitments” means the Closing Date Term Loan Commitments and the First Amendment Term Loan Commitments.

“Term Loan Facility” means the facility described in Section 2.01(b), providing for Term Loans to Borrowers by the Term Lenders in an aggregate principal amount outstanding, as of the First Amendment Effective Date after giving effect to the First Amendment and the funding of the First Amendment Term Loan, of $163,750,000.

(b) Borrowers and the Lenders hereby agree that the Aggregate Revolving Credit Commitments on the date hereof is $20,000,000. Borrowers and the applicable Lenders further agree that pursuant to Section 2.18 of the Credit Agreement the Aggregate Revolving Credit Commitments shall be increased by $5,000,000 (the “ First Amendment Revolving Credit Commitment Increase ”) on the First Amendment Effective Date to an aggregate principal amount equal to $25,000,000. The $5,000,000 increase to the Aggregate Revolving Credit Commitments shall be allocated in accordance with the amounts set forth opposite the applicable

 

3


Lenders’ names on Schedule 2(c) to the First Amendment under the heading “Increase in Revolving Credit Commitment”. Each such Lender’s Revolving Credit Commitment shall be increased accordingly (or, in the case of any new Lender, shall be such amount) on the First Amendment Effective Date. Each Lender with a Revolving Credit Commitment agrees that any Revolving Loans funded on the First Amendment Effective Date shall be funded in accordance with the Applicable Percentages of such Lender after giving effect to the increase in the Aggregate Revolving Credit Commitments described in this Section 2(c). Pursuant to and in accordance with Section 2.18 of the Credit Agreement, each such Lender also agrees that any outstanding Revolving Loans and participation interests in L/C Obligations and Swing Line Loans shall be re-allocated and adjusted among each Lender with a Revolving Credit Commitment on the First Amendment Effective Date (after giving effect to this Amendment) to the extent necessary to keep the outstanding applicable Revolving Loans ratable among such Lenders in accordance with any revised Applicable Percentages, as applicable (and each such Lender shall be deemed to have assigned and/or purchased, as necessary, any such interests in order to accurately reflect such new Applicable Percentages as of the First Amendment Effective Date and the Borrower Agent hereby consents to all such assignments), and the Borrowers agree to pay any additional amounts required pursuant to Section 3.05 of the Credit Agreement resulting therefrom.

(c) Section 2.01(b) of the Credit Agreement is hereby amended by deleting it in its entirety and substituting the following language therefor:

“(b) Term Loan Commitments .

(i) Subject to the terms and conditions set forth herein, each Lender with a Closing Date Term Loan Commitment severally agrees to make a Term Loan to Borrowers on the Closing Date in an amount equal to such Lender’s Closing Date Term Loan Commitment (the “ Closing Date Term Loan ”). The advance of such Term Loan shall be made simultaneously by the Lenders on the Closing Date in accordance with their respective Applicable Percentages of the Term Loan Facility (as such terms were defined and in effect on the Closing Date). Amounts borrowed under this Section 2.01(b)(i) and repaid or prepaid may not be reborrowed. The Borrowers, the other Credit Parties, Administrative Agent and the Lenders acknowledge and agree that the Closing Date Term Loan was fully funded on the Closing Date and that the outstanding principal balance of the Closing Date Term Loan on the First Amendment Effective Date immediately prior to the effectiveness of the First Amendment is $99,750,000.

(ii) Subject to the terms and conditions set forth herein, each Lender with a First Amendment Term Loan Commitment severally agrees to make a Term Loan to Borrowers on the First Amendment Effective Date in an amount equal to such Lender’s First Amendment Term Loan Commitment. The advance of the First Amendment Term Loan shall be made simultaneously by the First Amendment Term Lenders in accordance with the amounts set forth opposite each such First Amendment Term Lender’s name on Schedule 2(c) to the First Amendment under the heading “First Amendment Term Loan Commitments” (collectively, the “ First Amendment Term Loan ”). Amounts borrowed under

 

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this Section 2.01(b)(ii) and repaid or prepaid may not be reborrowed. The First Amendment Term Loan is not, and shall not be deemed, an Increase made pursuant to Section 2.18 . The First Amendment Term Loan shall be deemed to be made in addition to the Closing Date Term Loan and not in repayment thereof and shall constitute a Term Loan for all purposes under the Credit Agreement and each other Loan Document. Without limiting the generality of the foregoing, the loans made pursuant to this subsection 2.01(b)(ii) shall (v) constitute Obligations under the Loan Documents and have all of the benefits thereof, (w) have all of the rights, remedies, privileges and protections applicable to the Term Loans under the Credit Agreement and the other Loan Documents, (x) be secured by the Liens granted to the Administrative Agent under the Security Instruments, (y) be evidenced by Term Notes (if requested by the applicable Term Lender) and (z) bear interest at rates and have all other terms otherwise applicable to the Term Loans under the Credit Agreement. Immediately after giving effect to the making of the First Amendment Term Loan pursuant to this subsection 2.01(b)(ii) on the First Amendment Effective Date, the principal amount of the Term Loans outstanding under the Credit Agreement shall be $163,750,000. All references to a “Term Loan” or the “Term Loans” contained in this Agreement, the Security Agreement and the other Loan Documents shall be deemed to include the First Amendment Term Loan, together with the Closing Date Term Loan and other Term Loans, as applicable. Each Borrower hereby (x) represents, warrants, agrees, covenants and reaffirms that, as of the First Amendment Effective Date, it has no defense, set off, claim or counterclaim against the Administrative Agent and the Lenders with regard to its Obligations in respect of the Term Loans (including, without limitation, the Closing Date Term Loan and the First Amendment Term Loan) and (y) reaffirms its obligation to repay the Term Loans (including, without limitation, the Closing Date Term Loan and the First Amendment Term Loan) in accordance with the terms and provisions of this Agreement and the other Loan Documents.”

(d) Section 2.05(a) of the Credit Agreement is hereby amended by deleting it in its entirety and substituting the following language therefor:

“(a) Term Loans . Borrowers unconditionally promise to pay to Administrative Agent (i) for the account of each Term Lender with a Closing Date Term Loan the aggregate principal amount of the Closing Date Term Loan outstanding in equal installments of $656,250 (as such amount is reduced as a result of prepayments applied in accordance with the terms of this Agreement) each on the last day of each Fiscal Quarter, commencing with the Fiscal Quarter ending June 30, 2014, with the final scheduled installment of the Closing Date Term Loan in an amount equal to the entire remaining unpaid principal balance of the Closing Date Term Loan due on January 31, 2019 and (ii) for the account of each Term Lender with a First Amendment Term Loan the aggregate principal amount of the First Amendment Term Loan outstanding in equal installments of $400,000 (as such amount is reduced as a result of prepayments applied in accordance with the terms of this Agreement) each on the last day of each Fiscal Quarter ending after the First Amendment Effective Date, commencing with the Fiscal Quarter ending

 

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September 30, 2016, with the final scheduled installment of the First Amendment Term Loan in an amount equal to the entire remaining unpaid principal balance of the First Amendment Term Loan due on January 31, 2019.

The outstanding unpaid principal balance and all accrued and unpaid interest on the Closing Date Term Loan and the First Amendment Term Loan shall be due and payable on the earlier of (i) the Term Loan Maturity Date, and (ii) the date of the acceleration of such Term Loans in accordance with the terms hereof.”

(e) Section 2.06(b)(iv)(A) of the Credit Agreement is hereby amended by replacing the reference to “Section 2.06(b)(vii)” therein with “Section 2.06(b)(iv)”.

(f) Section 5.15(b) of the Credit Agreement is hereby amended by deleting it in its entirety and substituting the following language therefor:

“Each Loan Party and each Subsidiary is in compliance in all material respects with, and the advances of the Loans and use of the proceeds thereof will not result in a violation of, (a) the Trading With the Enemy Act (50 U.S.C. § 1 et seq., as amended) (the “ Trading With the Enemy Act ”) or any of the foreign assets control regulations administered by the United States Treasury Department, Office of Foreign Assets Control (“ OFAC ”) (31 C.F.R., Subtitle B, Chapter V, as amended) (the “ Foreign Assets Control Regulations ”) and any other enabling legislation or executive order relating thereto (which, for the avoidance of doubt, shall include, but shall not be limited to, Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (Sept. 25, 2001)) (the “ Executive Order ”)) by any party hereto and/or (b) the Uniting and Strengthening America by Providing Appropriate Tools Required To Intercept And Obstruct Terrorism (USA PATRIOT) Act of 2001 (“ USA PATRIOT Act ”). None of the Loan Parties or any of their Subsidiaries is a “blocked person” as described in the Executive Order, the Trading With the Enemy Act or the Foreign Assets Control Regulations. None of the Loan Parties will use any part of the proceeds of the Loans for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977.”

(g) Section 6.01(a) of the Credit Agreement is hereby amended by deleting it in its entirety and substituting the following language therefor:

“(a) (x) if Holdings is required to file a Form 10-K under the Exchange Act, a copy of the Form 10-K of Holdings within 2 Business Days after the date on which Holdings files or is required to file its Form 10-K under the Exchange Act (after giving effect to any extension pursuant to Rule 12b-25 under the Exchange Act (or any successor rule)) and, unless the audit report and opinion of an Auditor (as defined below) in such Form 10-K satisfies the requirements of clauses (A)

 

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and (B) of Section 6.01(a)(y) below, a report and opinion of an Auditor which satisfies such requirements, or (y) if Holdings is not required to file a Form 10-K under the Exchange Act, within 120 days after the end of each Fiscal Year (in the case of the Fiscal Year ending December 31, 2013, 150 days), a consolidated balance sheet of Holdings and its Subsidiaries (in the case of the Fiscal Year ending December 31, 2013, of J.A. Cosmetics and its Subsidiaries) as of the end of such Fiscal Year, and the related consolidated statements of income or operations, and cash flows for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an accounting firm of nationally recognized standing or otherwise reasonably acceptable to the Administrative Agent, it being agreed and understood that as of the Closing Date, McGladrey LLP is acceptable to the Administrative Agent (the “ Auditor ”), which report and opinion shall (A) not be subject to any “going concern” qualification or other qualification or exception or any qualification or exception as to the scope of such audit (except for qualifications relating to changes in accounting principles practice reflecting changes in GAAP and required or approved by such Auditor or relating to the financial statements for the fiscal year ending immediately prior to the final stated maturity of the Loans (including, for the avoidance of doubt, any Increases) or Subordinated Indebtedness, applicable, solely because of the impending maturity of the Loans or Subordinated Indebtedness, as applicable) and (B) shall state that such financial statements fairly present in all material respects the financial condition of Holdings and its Subsidiaries as of the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP;”

(h) Section 6.01(b) of the Credit Agreement is hereby amended by deleting it in its entirety and substituting the following language therefor:

“(b) (x) if Holdings is required to file a Form 10-Q under the Exchange Act, a copy of the Form 10-Q of Holdings, within 2 Business Days after the date on which Holdings files or is required to file its Form 10-Q under the Exchange Act (after giving effect to any extension pursuant to Rule 12b-25 under the Exchange Act (or any successor rule)) and, unless otherwise included in such Form 10-Q, comparative form figures for the preceding Fiscal Year or (y) if Holdings is not required to file a Form 10-Q under the Exchange Act, within 45 days after the end of each Fiscal Quarter of each Fiscal Year, commencing with the Fiscal Quarter ending March 31, 2014 (in the case of each of the Fiscal Quarters ending March 31, 2014 and June 30, 2014, 60 days), (i) unaudited consolidated balance sheet of Holdings and its Subsidiaries as of the end of such Fiscal Quarter and the related consolidated statements of income or operations and cash flows for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, setting forth in each case in comparative form figures for the preceding Fiscal Year and the financial projections for the current Fiscal Year (or, in the case of quarterly financial statements delivered with respect to the Fiscal Quarters ending March 31, 2014, June 30, 2014, September 30, 2014 and December 31, 2014, to the corresponding

 

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period set forth in the financial model delivered to the Administrative Agent prior to the Closing Date) certified by a Responsible Officer of Borrower Agent to the effect that such statements fairly present in all material respects in accordance with GAAP the financial condition of Holdings and its Subsidiaries as of the dates indicated and the results of their operations for the periods indicated, subject to year-end adjustments and the absence of footnotes and (ii) a flash report of cash balances of Foreign Subsidiaries as of the last day of such Fiscal Quarter; and”

(i) Section 7.06(e) of the Credit Agreement is hereby amended by deleting it in its entirety and substituting the following language therefor:

“(e) (i) only if no Event of Default shall have occurred and be continuing, both immediately before or as a result of the making of such Restricted Payment, the Loan Parties may make payments of management, consulting, monitoring, transaction and advisory fees to Sponsor or its Affiliates in accordance with the Management Agreement as in effect on the Closing Date and the payment of out-of-pocket costs and expenses, reimbursements and indemnification payments required thereunder and (ii) only if no Specified Event of Default shall have occurred and be continuing, both immediately before or as a result of the making of such Restricted Payment, the Loan Parties may make, with notice to Administrative Agent, (x) a payment in connection with the termination of the Management Agreement upon a Qualified IPO, which fee shall equal the aggregate amount of accrued and unpaid management fees (but not any Subsequent Fees (as defined therein) or similar fees) as of such date of termination any (y) to the extent paid solely with the proceeds of such Qualified IPO, a payment of any Subsequent Fee or similar fee due and payable in connection with such Qualified IPO in accordance with the Management Agreement as in effect on the Closing Date; provided , that if at any time any such fees pursuant to clauses (i) or (ii) of this Section 7.06(e) are not permitted to be paid as a result of the occurrence and continuance of an Event of Default or a Specified Event of Default, as applicable,, then (x) such amounts shall continue to accrue (plus accrued interest, if any, with respect thereto), and (y) any such amounts that have accrued but which were not permitted to be paid may be paid so long as such Event of Default or Specified Event of Default, as applicable, has been waived or cured and no other Event of Default or Specified Event of Default, as applicable, has occurred and is continuing or would immediately result therefrom (it being agreed and understood that out-of-pocket costs and expenses, reimbursements, indemnities and other similar payments may be paid during the continuance of any Event of Default or any Specified Event of Default, as applicable);”

(j) Section 7.06(m) of the Credit Agreement is hereby amended by deleting it in its entirety and substituting the following language therefor:

“(m) the First Amendment Dividend;”

 

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(k) Section 7.06(n) is hereby amended by deleting the “.” at the end thereof and substituting “; and” therefor.

(l) Section 7.06 of the Credit Agreement is hereby amended by adding the following clause (o) at the end thereof:

“(o) from and after the consummation of a Qualified IPO, the payment of any dividend or distribution or the consummation of any irrevocable redemption within sixty (60) days after the date of declaration of the dividend or distribution or giving of the redemption notice, as the case may be, if at the date of such declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and was permitted to be paid under this Agreement.”

(m) Section 7.12(a) of the Credit Agreement is hereby amended by deleting the table set forth therein in its entirety and substituting the table set forth below therefor:

 

Measurement Period Ending

  

Maximum Consolidated

Total Net Leverage

Ratio

June 30, 2016

   6.50 to 1.00

September 30, 2016

   6.50 to 1.00

December 31, 2016

   6.25 to 1.00

March 31, 2017

   6.00 to 1.00

June 30, 2017

   5.50 to 1.00

September 30, 2017

   5.50 to 1.00

December 31, 2017

   5.25 to 1.00

March 31, 2018

   5.25 to 1.00

June 30, 2018

   5.00 to 1.00

September 30, 2018

   5.00 to 1.00

December 31, 2018 and each Fiscal Quarter thereafter

   4.75 to 1.00

(n) Section 7.12(b) of the Credit Agreement is hereby amended by deleting the table set forth therein in its entirety and substituting the table set forth below therefor:

 

Measurement Period Ending

  

Minimum Consolidated

Interest Coverage Ratio

June 30, 2016

   1.80 to 1.00

September 30, 2016

   1.80 to 1.00

December 31, 2016

   1.90 to 1.00

March 31, 2017

   1.90 to 1.00

June 30, 2017

   2.00 to 1.00

September 30, 2017

   2.00 to 1.00

December 31, 2017

   2.15 to 1.00

March 31, 2018

   2.15 to 1.00

June 30, 2018

   2.25 to 1.00

September 30, 2018

   2.25 to 1.00

December 31, 2018 and each Fiscal Quarter thereafter

   2.40 to 1.00

 

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(o) Section 10.07 of the Credit Agreement is hereby amended by (i) replacing the “ or” immediately preceding clause (h) thereof with “, ” and (ii) inserting the following language as new clauses (i) and (j) at the end thereof, respectively:

“, (i) to rating agencies if requested or required by such agencies in connection with a rating or credit estimate relating to the Loans or Commitments hereunder or (j) to a Person that is (i) an investor or prospective investor in a Securitization that agrees that its access to information regarding the Borrower and the Loans and Commitments is solely for purposes of evaluating an investment in such Securitization and who agrees to treat such information as confidential or (ii) a trustee, collateral agent, collateral manager, servicer, noteholder, equityholder or secured party in a Securitization in connection with the administration, servicing and evaluation of, and reporting on, the assets serving as collateral for such Securitization.”

(p) Schedule 2.01 to the Credit Agreement is hereby deleted in its entirety and Schedule 2.01 attached hereto shall be substituted in lieu thereof.

(q) Exhibit D to the Credit Agreement is hereby deleted in its entirety and Exhibit D attached hereto shall be substituted in lieu thereof.

(r) Exhibit E to the Credit Agreement is hereby deleted in its entirety and Exhibit E attached hereto shall be substituted in lieu thereof.

3. Conditions . The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent:

a. the execution and delivery of this Amendment by the Administrative Agent, the requisite Lenders, the Borrowers and each Loan Party;

b. Borrower Agent shall have delivered to Administrative Agent a certificate dated as of the First Amendment Effective Date evidencing that (1) on a Pro Forma Basis after giving effect to the Increase to the Aggregate Revolving Credit Commitments (assuming such incremental Revolving Loans are fully drawn on the First Amendment Effective Date), the First Amendment Term Loans and the First Amendment Dividend, the Consolidated Total Net Leverage Ratio of Holdings and its Subsidiaries as of the end of the Fiscal Quarter most recently ended as to which financial statements were required to be delivered pursuant to this Agreement is equal to or less than the lesser of (A) the maximum Consolidated Total Net Leverage Ratio permitted pursuant to Section 7.12(a) for the Fiscal Quarter most recently ended as to which financial statements were required to be delivered pursuant to this Agreement and (B) 4.50 to 1.00 and (2) on a Pro Forma Basis after giving effect to the Increase to the Aggregate Revolving Credit Commitments (assuming such incremental Revolving Loans are fully drawn on the First

 

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Amendment Effective Date), the First Amendment Term Loans and the First Amendment Dividend, the Consolidated Senior Net Leverage Ratio of Holdings and its Subsidiaries as of the end of the Fiscal Quarter most recently ended as to which financial statements were required to be delivered pursuant to this Agreement is equal to or less than 3.60 to 1.00;

c. delivery to Administrative Agent of (i) an amendment to the Subordinated Loan Agreement executed by the Loan Parties, the Subordinated Lender Agent and the requisite Subordinated Lenders in form and substance reasonably acceptable to Administrative Agent and (ii) an amendment to the Intercreditor Agreement executed by the Loan Parties, the Subordinated Lender Agent and the Subordinated Lenders in form and substance reasonably acceptable to Administrative Agent;

d. delivery to Administrative Agent of the other documents and other items identified in the Closing Checklist, a copy of which is attached hereto as Annex A , each in form and substance reasonably satisfactory to Administrative Agent.

e. receipt by Administrative Agent, for itself and the Lenders under the Credit Agreement prior to the effectiveness of this Amendment that have delivered and released their respective executed signature pages to this Amendment on or prior to the date hereof (such Lenders, the “ Consenting Lenders ”), a non-refundable consent fee equal to 0.25% of the sum of (i) the aggregate principal amount of the Aggregate Revolving Credit Commitments of the Consenting Lenders as of the First Amendment Effective Date (immediately prior to giving effect to this Amendment) and (ii) the aggregate principal amount of the Term Loans of the Consenting Lenders as of the First Amendment Effective Date (immediately prior to giving effect to this Amendment), which fee shall be due and payable in full on the First Amendment Effective Date;

f. receipt by Administrative Agent, for the First Amendment Term Lenders, a non-refundable closing fee equal to 1.00% of the aggregate principal amount of the First Amendment Term Loan, which fee shall be due and payable in full on the First Amendment Effective Date;

g. receipt by Administrative Agent, for the applicable Revolving Lenders, a non-refundable closing fee equal to 1.00% of the aggregate principal amount of the First Amendment Revolving Credit Commitment Increase, which fee shall be due and payable in full on the First Amendment Effective Date;

h. the truth and accuracy of the representations and warranties contained in Section 4 hereof;

g. no Default or Event of Default exists or shall arise as a direct result of the effectiveness of this Amendment (including after giving effect to the Increase and First Amendment Term Loans contemplated hereby); and

h. all accrued costs, fees and expenses (including all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to Administrative Agent) due and payable to Administrative Agent and the Arranger pursuant to this Amendment and the Credit Agreement, in each case, on or before the First Amendment Effective Date shall have been paid, to the extent set forth hereunder or otherwise invoiced with reasonable detail at least one (1) Business Day prior to the First Amendment Effective Date.

 

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4. Representations and Warranties . Each Loan Party hereby represents and warrants to Administrative Agent and each Lender as follows:

a. the representations and warranties made by such Loan Party contained in the Loan Documents are true and correct in all material respects (or in all respects for such representations and warranties that are by their terms already qualified as to materiality), except to the extent such representation or warranty expressly relates to an earlier date, in which case, such representations and warranties were true and correct in all material respects (or in all respects for such representations and warranties that are by their terms already qualified as to materiality) as of such earlier date;

b. such Loan Party is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization;

c. such Loan Party has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to execute, deliver and perform its obligations under this Amendment and the Credit Agreement, as amended hereby;

d. the execution, delivery and performance by such Loan Party of this Amendment and the Credit Agreement, as amended hereby, have, in each case, been duly authorized by all necessary organizational action and (A) do not and will not (i) contravene the terms of its Organization Documents, (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under (other than as permitted by Section 7.02) (x) any Contractual Obligation to which such Person is a party or (y) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject, (iii) violate any Law material to any Loan Party or Subsidiary in any material respect, except with respect to any conflict, breach, or contravention referred to in clause (A)(ii), to the extent that such conflict, breach or contravention would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or (B) do not or will not require any approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person, except for (i) filings necessary to perfect Liens on the Collateral granted by the Loan Parties in favor of the Administrative Agent for the benefit of the Lender Parties, (ii) the approvals, consents, exemptions, authorizations, actions, notices, and filings which have been duly obtained, taken, given or made and are in full force and effect or (iii) if the failure to obtain the same, take such action or give such notice could reasonably be expected to result in a Material Adverse Effect;

e. this Amendment and the Credit Agreement, as amended hereby, constitutes the legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to or affecting the rights and remedies of creditors or by general equitable principles; and

 

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f. no Default or Event of Default exists or shall arise as a direct result of the effectiveness of this Amendment.

5. No Modification . Except as expressly set forth herein, nothing contained herein shall be deemed to constitute a waiver of compliance with any term or condition contained in the Credit Agreement or any of the other Loan Documents or constitute a course of conduct or dealing among the parties. Except as expressly stated herein, the Administrative Agent and Lenders reserve all rights, privileges and remedies under the Loan Documents. Except as amended or consented to hereby, the Credit Agreement and other Loan Documents remain unmodified and in full force and effect. All references in the Loan Documents to the Credit Agreement shall be deemed to be references to the Credit Agreement as amended and waived hereby.

6. Counterparts . This Amendment may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute a single contract. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart. Delivery of an executed counterpart of a signature page of this Amendment by telecopy or other electronic means (including .pdf or .tiff files) shall be effective as delivery of a manually executed counterpart of this Amendment.

7. Successors and Assigns . The provisions of this Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided that none of the Loan Parties may assign or transfer any of its rights or obligations under this Amendment except as permitted by the Credit Agreement.

8. Governing Law and Jurisdiction .

(a) Governing Law . THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

(b) SUBMISSION TO JURISDICTION . EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT, THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN

 

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ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AMENDMENT, THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AMENDMENT, THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST BORROWERS OR THEIR PROPERTIES IN THE COURTS OF ANY JURISDICTION.

(c) SERVICE OF PROCESS . EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02 OF THE CREDIT AGREEMENT. NOTHING IN THIS AMENDMENT, THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

(d) WAIVER OF VENUE . EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT, THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

9. Severability . The illegality or unenforceability of any provision of this Amendment or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Amendment or any instrument or agreement required hereunder. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

10. Reaffirmation . Each of the Loan Parties as debtor, grantor, pledgor, guarantor, assignor, or in other any other similar capacity in which such Loan Party grants liens or security interests in its property or otherwise acts as accommodation party or guarantor, as the case may be, hereby (i) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each of the Loan Documents to which it is a party (after giving effect hereto) and (ii) to the extent such Loan Party granted liens on or security interests in any of its property pursuant to any such Loan Document as security for or otherwise guaranteed the Borrower’s Obligations under or with respect to the Loan Documents, ratifies and reaffirms such guarantee and grant of security interests and liens and confirms and agrees that such security interests and liens hereafter secure all of the Obligations as amended hereby. Each of the Loan Parties hereby consents to this Amendment and acknowledges that each of the Loan Documents remains in full force and effect and is hereby ratified and reaffirmed. The execution of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent or Lenders, constitute a waiver of any provision of any of the Loan Documents or serve to effect a novation of the Obligations.

 

14


11. Release . In consideration of the Lenders’ and the Administrative Agent’s agreements contained in this Amendment, each Loan Party hereby irrevocably releases and forever discharge the Lenders and the Administrative Agent and their affiliates, subsidiaries, successors, assigns, directors, officers, employees, agents, consultants and attorneys (each, a “ Released Person ”) of and from any and all claims, suits, actions, investigations, proceedings or demands, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law of any kind or character, known or unknown, which such Loan Party ever had or now has against Administrative Agent, any Lender or any other Released Person which relates, directly or indirectly, to any acts or omissions of Administrative Agent, any Lender or any other Released Person relating to the Credit Agreement or any other Loan Document on or prior to the date hereof.

[Remainder of Page Intentionally Left Blank; Signature Pages Follow]

 

15


IN WITNESS WHEREOF, each of the undersigned has executed this Amendment as of the date set forth above.

 

LOAN PARTIES :
e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.)
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer
JA 139 Fulton Street Corp.
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer
JA 741 Retail Corp.
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer
JA Cosmetics Retail, Inc.
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer
JA RF, LLC
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer


IN WITNESS WHEREOF, each of the undersigned has executed this Amendment as of the date set forth above.

 

JA Cherry Hill, LLC
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer
e.l.f. Beauty, Inc. (formerly known as J.A. Cosmetics Holdings, Inc.)
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer


IN WITNESS WHEREOF, the each of the undersigned has executed this Amendment as of the date set forth above.

 

ADMINISTRATIVE AGENT AND LENDERS:
BANK OF MONTREAL, as Administrative Agent and as a Lender
By:  

/s/ Tara Cuprisin

Name:   Tara Cuprisin
Title:   Director


IN WITNESS WHEREOF, the each of the undersigned has executed this Amendment as of the date set forth above.

 

Great Lakes CLO 2012-1, LTD., as a Lender
  By: BMO Asset Management Corp.,
  As Asset Manager
By:  

/s/ Michael P. King

Name:   Michael P. King
Title:   Director, Sr. Portfolio Manager
  BMO Asset Management Corp.
Great Lakes CLO 2014-1, LTD., as a Lender
  By: BMO Asset Management Corp.,
  As Asset Manager
By:  

/s/ Michael P. King

Name:   Michael P. King
Title:   Director, Sr. Portfolio Manager
  BMO Asset Management Corp.


IN WITNESS WHEREOF, the each of the undersigned has executed this Amendment as of the date set forth above.

 

DC Funding Partners LLC, collateral manager for DENALI CAPITAL CLO VII, LTD., as a Lender
By:  

/s/ Nicole D. Kouba

Name:   Nicole D. Kouba
Title:   Vice President
DC Funding Partners LLC, collateral manager for DENALI CAPITAL CLO X, LTD.
By:  

/s/ Nicole D. Kouba

Name:   Nicole D. Kouba
Title:   Vice President


IN WITNESS WHEREOF, the each of the undersigned has executed this Amendment as of the date set forth above.

 

Fifth Street SLF II, Ltd. , as a Lender
By: Fifth Street CLO Management LLC, its Agent
By:  

/s/ Ivelin M. Dimitrov

Name:   Ivelin M. Dimitrov
Title:   Chief Investment Officer


IN WITNESS WHEREOF, the each of the undersigned has executed this Amendment as of the date set forth above.

 

U.S. Bank National Association, as a Lender
By:  

/s/ Jason Nadler

Name:   Jason Nadler
Title:   Managing Director


IN WITNESS WHEREOF, the each of the undersigned has executed this Amendment as of the date set forth above.

 

BANCALLIANCE INC.
By: AP Commercial LLC, its attorney-in-fact, as a Lender
By:  

/s/ John Gray

Name:   John Gray
Title:   Executive Vice President


IN WITNESS WHEREOF, the each of the undersigned Required Lenders has consented to this Amendment as of the date set forth above.

 

AP MA Funding LLC, as a Lender
By:  

/s/ John Gray

Name:   John Gray
Title:   Executive Vice President


IN WITNESS WHEREOF, the each of the undersigned has executed this Amendment as of the date set forth above.

 

IA CLARINGTON FLOATING RATE INCOME FUND, as a Lender
By:  

/s/ Jeffrey Sujitno

Name:   Jeffrey Sujitno
Title:   Portfolio Manager


IN WITNESS WHEREOF, the each of the undersigned has executed this Amendment as of the date set forth above.

 

Monroe FCM Direct Loan Fund Financing SPV LLC
By: Monroe FCM Direct Loan Fund LP, as its Designated Manager
By: Monroe FCM Direct Loan Fund LLC, its General Partner
By:  

/s/ Nathan Harrell

Name:   Nathan Harrell
Title:   Vice President


IN WITNESS WHEREOF, the each of the undersigned has executed this Amendment as of the date set forth above.

 

Monroe Capital CLO 2014-1, Ltd.
By: Monroe Capital Management LLC, as Asset Manager and Attorney-in-fact
By:  

/s/ Nathan Harrell

Name:   Nathan Harrell
Title:   Vice President


IN WITNESS WHEREOF, the each of the undersigned has executed this Amendment as of the date set forth above.

 

AIB Debt Management, Limited, as a Lender
By:  

/s/ Donna Cleary

Name:   Donna Cleary
Title:   Vice President, Investment Advisor
By:  

/s/ Kate Zhuk

Name:   Kate Zhuk
Title:   Assistant Vice President, Investment Advisor


IN WITNESS WHEREOF, the each of the undersigned has executed this Amendment as of the date set forth above.

 

Wells Fargo Bank, N.A., as a Lender
By:  

/s/ Maribelle Villaseñor

Name:   Maribelle Villaseñor
Title:   Vice President


IN WITNESS WHEREOF, the each of the undersigned has executed this Amendment as of the date set forth above.

 

Compass Bank, as a Lender
By:  

/s/ Natalie Yates

Name:   Natalie Yates
Title:   Vice President


IN WITNESS WHEREOF, the each of the undersigned has executed this Amendment as of the date set forth above.

 

Ally Bank, as a Lender
By:  

/s/ Tom Magraw

Name:   Tom Magraw
Title:   Authorized Signatory


IN WITNESS WHEREOF, the each of the undersigned has executed this Amendment as of the date set forth above.

 

Crescent Direct Lending Fund L.P.,
as a Lender
By: Crescent Direct Lending, LLC,
its General Partner
By:  

/s/ Michael Rogers

Name:   Michael Rogers
Title:   Managing Director
By:  

/s/ Gia Heimlich

Name:   Gia Heimlich
Title:   Vice President


IN WITNESS WHEREOF, the each of the undersigned has executed this Amendment as of the date set forth above.

 

JFIN MM CLO 2014 LTD.
By: Apex Credit Partners LLC, as Portfolio Manager
By:  

/s/ Steve Goetschius

Name:   Steve Goetschius
Title:   Managing Director
JFIN FUND III LLC
By: Jefferies Finance LLC, as Collateral Manager
By:  

/s/ J. Paul McDonnell

Name:   J. Paul McDonnell
Title:   Managing Director


EXHIBIT A

Search Jurisdictions

 

Debtor

  

Jurisdiction

JA RF, LLC

   DE SOS

JA Cherry Hill, LLC

   DE SOS

e.l.f. Beauty, Inc.

   DE SOS

e.l.f. Cosmetics, Inc.

   DE SOS

JA Cosmetics Retail, Inc.

   NY SOS

JA 741 Retail Corp.

   NY SOS

JA 139 Fulton Street Corp.

   NY SOS

J.A. Cosmetics Corp.

   NJ SOS

9298-4442 Québec Inc.

   DC Recorder of Deeds

 

5


Exhibit D

See attached.


EXHIBIT D

TO

CREDIT AGREEMENT

COMPLIANCE CERTIFICATE

e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.)

Date:              , 20     

This certificate is given by                      , a                      , in its capacity as Borrower Agent, pursuant to Section 6.02(a) of that certain Credit Agreement dated as of January 31, 2014 among Borrower Agent, e.l.f. Beauty, Inc. (formerly known as J.A. Cosmetics Holdings, Inc.), a Delaware corporation (the “ Initial Borrower ”; the Initial Borrower and each Domestic Subsidiary of Initial Borrower that becomes a “Borrower” thereunder pursuant to a Joinder Agreement collectively, the “ Borrowers ”), the other Loan Parties from time to time party thereto, the Lenders from time to time party thereto, and Bank of Montreal, as Administrative Agent for Lenders (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”). Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement.

The undersigned Responsible Officer hereby certifies to Administrative Agent and Lenders, solely as an officer of Borrower Agent and not individually, as of the date hereof, that:

(a) the financial statements delivered with this certificate in accordance with Section 6.01(a) and/or 6.01(b) of the Credit Agreement were prepared in accordance with GAAP and fairly present in all material respects the financial condition of Holdings and its Subsidiaries as of the dates indicated therein [, subject to year-end adjustments and the absence of footnotes] [note: delete bracketed text where the Compliance Certificate is delivered in conjunction with the annual audited financial statements.]

(b) I have reviewed the terms of the Credit Agreement and have made, or caused to be made under my supervision, a review in reasonable detail of the transactions and conditions of Holdings and its Subsidiaries during the accounting period covered by such financial statements;

(c) such review has not disclosed the existence as of the date hereof of a Default or an Event of Default, except as set forth in Schedule 1 hereto, which includes a description of the nature of such Default or Event of Default and what action Borrowers have taken, are undertaking and/or propose to take with respect thereto;

 

1


(d) Borrowers are in compliance with the covenants contained in Section 7.12(a) and 7.12(b) of the Credit Agreement, as demonstrated by the calculation of such covenants below, except as set forth below;

(e) subsequent to the delivery of the last Compliance Certificate submitted pursuant to the Credit Agreement, except as set forth in Schedule 2 hereto, no Loan Party has (i) obtained any U.S. Federal registration of a patent or trademark, or (ii) applied for the U.S. Federal registration of a patent or trademark;

(f) subsequent to the delivery of the last Compliance Certificate submitted pursuant to the Credit Agreement, except as set forth in Schedule 3 hereto, (i) no Subsidiary of a Loan Party has merged or consolidated with or liquidated or dissolved into a Loan Party and (ii) no Subsidiary that is not a Loan Party has merged into any other Subsidiary that is not a Loan Party;

(g) subsequent to the delivery of the last Compliance Certificate submitted pursuant to the Credit Agreement, except as set forth in Schedule 4 hereto (which shall set forth the information in reasonable detail), there has been no material change in accounting policies or financial reporting practices by any Loan Party or any Subsidiary; and

(h) attached hereto as Schedule 5 is a correct calculation of the Available Amount as of [                      ] .

IN WITNESS WHEREOF, the undersigned officer has executed and delivered this certificate, solely as an officer of Borrower Agent and not individually, this      day of              ,          .

 

e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.)
By  

 

Name  

 

Title                                           of the Borrower Agent

 

2


CONSOLIDATED TOTAL NET LEVERAGE RATIO

(Section 7.12(a))

 

Consolidated Total Net Funded Debt is defined as follows:    
The sum (but without duplication) of the aggregate principal amount of Indebtedness of Holdings and its Subsidiaries as of the last day of the Measurement Period, determined on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with any Permitted Acquisition or other permitted Investment), solely to the extent consisting of (a) obligations for borrowed money, (b) obligations under Capital Leases and synthetic or other similar financing leases, (c) obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (d) direct or contingent obligations arising under letters of credit (including standby and commercial but excluding all Letters of Credit), bankers’ acceptances, bank guarantees and similar instruments, (e) obligations to pay the deferred purchase price of property or services (other than (i) accrued expenses and trade payables incurred in the Ordinary Course of Business, (ii) any working capital adjustment or any earnout obligation, deferred compensation, non-compete or similar obligations under employment agreements of such Person and (iii) any earnout obligations and other similar deferred purchase price obligations (other than obligations with respect to seller notes) solely to the extent such earnout obligations and other similar deferred purchase price obligations (other than obligations with respect to seller notes) either (x) are subordinated in right of payment to the Obligations on terms reasonably satisfactory to the Administrative Agent or (y) are payable (including with respect to principal, interest and fees) no earlier than the date that is 180 days after the Facility Termination Date), in each case, only if due and payable, (f) obligations with respect to seller notes, (g) obligations with respect to the redemption, repayment or other repurchase or payment in respect of any Disqualified Equity Interest; provided, Consolidated Total Net Funded Debt shall not include (i) obligations under Swap Contracts entered into in the Ordinary Course of Business for bona fide hedging purposes and not for speculative purposes and (ii) unsecured and non-interest bearing obligations of Holdings arising as a result of the exercise of the Seller Put Option                         
   

 

 

3


Less:   Unrestricted cash and Cash Equivalents of any Loan Party (other than any Net Cash Proceeds from the issuance by Holdings of any Permitted Cure Securities, or cash common equity contributions received by Holdings pursuant to Section 8.04 of the Credit Agreement) with respect to which Administrative Agent has a perfected Lien, not to exceed $10,000,000 in the aggregate; provided, that notwithstanding the foregoing, until the expiration of the time period permitted under Section 6.14 of the Credit Agreement, such cash and Cash Equivalents shall be deducted for purposes of calculating Consolidated Total Net Funded Debt regardless of whether Administrative Agent has a perfected Lien on such cash and Cash Equivalents    
     

 

Consolidated Total Net Funded Debt as of the last day of the Measurement Period   $  
     

 

Adjusted Consolidated EBITDA for the Measurement Period is defined as follows 1 :    
Consolidated net income (or loss) for the Measurement Period of Holdings, the Borrowers, and their Subsidiaries, but excluding: (a) the income (or loss) of any Person that is not a Subsidiary, provided that consolidated net income shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash to a Borrower or Subsidiary thereof from a Person that is not a Subsidiary in respect of such period and (b) except as otherwise provided below, the income (or loss) of any Person accrued prior to the date it became a Subsidiary of a Borrower or is merged into or consolidated with Borrower or a Subsidiary of a Borrower; provided, extraordinary, non-recurring or unusual gains, losses, charges or expenses shall be excluded from the calculation of consolidated net income (or loss) (it being understood, for the avoidance of doubt, that items that are subject to a cap in other areas of the calculation of Adjusted Consolidated EBITDA shall not be permitted to be added-back on the basis of being “unusual” or “non-recurring”)   $  
     

 

 

 

1   To include Acquired EBITDA and exclude Disposed EBITDA per the paragraph on page 10 of this certificate.

 

4


Plus (without duplication):

 

Any provision for taxes based on income, profits or capital, including but not limited to federal, provincial, state, franchise and similar taxes and foreign withholding taxes of such Person paid or accrued during such period (including penalties, interest, costs and expenses related to such taxes or arising from any tax examinations) deducted in the determination of consolidated net income for the Measurement Period

                        
   

 

Interest expense (including but not limited to (i) net payments, if any, pursuant to interest rate Swap Contracts entered into for the purpose of hedging interest rate risk, (ii) bank fees, (iii) costs of surety bonds in connection with financing activities, and (iv) fees, charges, commissions, and discounts owed with respect to letters of credit or bankers acceptances) (less, interest income) deducted (or included) in the determination of consolidated net income for the Measurement Period

                        
   

 

Amortization and depreciation (including but not limited to the amortization of deferred financing fees or costs and the amortization of original issue discount resulting from the issuance of Indebtedness at less than par and, to the extent a synthetic or other similar financing lease is Indebtedness, rental payments in connection with such leases that are expensed) deducted in the determination of consolidated net income for the Measurement Period

   
   

 

Losses (less gains) from asset Dispositions (other than asset Dispositions in the Ordinary Course of Business) included in the determination of consolidated net income for the Measurement Period

                        
   

 

Non-cash expenses, charges or losses (less non-cash gains or income), including any write-offs or write-downs, including impairment charges, deducted (or included) in the determination of consolidated net income for the Measurement Period; provided that if any such amount represents an accrual or reserve for a potential cash item in any future period, the cash payment in respect thereof that is paid in a subsequent Measurement Period shall be deducted from Adjusted Consolidated EBITDA to such extent in such subsequent Measurement Period

                        
   

 

 

5


Expenses and fees deducted in the determination of consolidated net income and incurred during the Measurement Period to consummate the Transaction, whether occurring before or within 180 days after the Closing Date or subsequently required to account for the Transaction from a GAAP perspective and in accordance with GAAP

                        
   

 

Expenses and fees (including expenses and fees paid to Administrative Agent and Lenders and the lenders under the Subordinated Indebtedness Documents and any other Indebtedness) deducted in the determination of consolidated net income and incurred during the Measurement Period and after the Closing Date in connection with the consummation or administration of the Loan Documents and the Subordinated Indebtedness Documents or the documents governing such other Indebtedness (including in connection with any actual or proposed amendment, supplement, waiver or other modification to the Loan Documents or Subordinated Indebtedness Documents or any other Indebtedness, whether or not consummated, including, for the avoidance of doubt, the First Amendment to Credit Agreement and the Second Amendment to Subordinated Loan Agreement)

                        
   

 

Fees and expenses incurred under the Management Agreement, and fees, expenses and indemnifications of directors, in each case permitted under the Credit Agreement and deducted in the determination of consolidated net income during the Measurement Period

                        
   

 

Expenses deducted in the determination of consolidated net income during the Measurement Period and covered by indemnification or other reimbursement provisions, or purchase price adjustments in connection with any Permitted Acquisition or other permitted Investment (to the extent deducted from the determination of consolidated net income during the Measurement Period), in each case to the extent actually received in cash during such Measurement Period, or to the extent that Borrower Agent reasonably expects a payment in respect of the applicable indemnification or other reimbursement provision, or purchase price adjustment will be received in cash within 180 days after the date such expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually paid, indemnified or reimbursed in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period)

                        
   

 

 

6


Expenses and fees deducted in the determination of consolidated net income during the Measurement Period and which are incurred in connection with the consummation (or attempted or proposed or anticipated consummation) of any Permitted Acquisitions or any Acquisitions which would reasonably be expected to have (if they had been consummated) satisfied the requirements of the defined term “Permitted Acquisition” but for the fact they are not consummated; provided that the add-back for all amounts attributable to all such non-consummated transactions shall not exceed $1,000,000 (or such higher amount reasonably acceptable to Administrative Agent) in any Fiscal Year

   
   

 

Expenses and fees deducted in the determination of consolidated net income during the Measurement Period and which are incurred in connection with any proposed or actual issuance of debt or equity, restricted payment, Investment permitted under Section 7.03(b) or (l) of the Credit Agreement or asset Dispositions (other than asset Dispositions in the Ordinary Course of Business); provided, that the add-back for all amounts attributable to all such non-consummated transactions shall not exceed $1,000,000 (or such higher amount reasonably acceptable to Administrative Agent) in any Fiscal Year

   
   

 

Without duplication of any other add-back set forth herein, losses, charges or expenses deducted in the determination of consolidated net income during the Measurement Period, but for which insurance or indemnity recovery is actually received in cash during the Measurement Period or to the extent that Borrower Agent reasonably expects such insurance or indemnity recovery will be received in cash within 180 days after the date such loss, charge or expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually indemnified or recovered in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period)

                        
   

 

 

7


Without duplication of any other add-back set forth herein, expenses, charges or losses deducted in the determination of consolidated net income during the Measurement Period and reimbursed by third parties to the extent such reimbursements are actually received in cash during the Measurement Period or to the extent that Borrower Agent reasonably expects such reimbursement will be received in cash within 180 days after the date such loss, charge or expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually reimbursed in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period)

                        
   

 

Non-cash exchange or translation losses (less non-cash gains) deducted (or included) in the determination of consolidated net income during the Measurement Period and arising from foreign currency hedging transactions or currency fluctuations

                        
   

 

Non-cash deductions or charges (less non-cash gains or positive adjustments, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Adjusted Consolidated EBITDA in any prior Measurement Period and excluding any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase Adjusted Consolidated EBITDA in such prior period) to net income attributable to purchase accounting adjustments made in accordance with GAAP

                        
   

 

the amount of any earn out or other similar deferred purchase price obligation (other than obligations constituting salary payments pursuant to ordinary course employment agreements and salary bonuses payable thereunder) which was reserved or paid during such Measurement Period and deducted in the calculation of consolidated net income for such Measurement Period, to the extent such obligations and, if paid, the payment thereof are permitted under the Credit Agreement

                        
   

 

 

8


(i) the amount of any deferred compensation, signing bonuses, retention and relocation costs and expenses, restructuring charges, integration costs or other business optimization expenses, costs associated with establishing new facilities, systems and distribution space or reserves, including any one-time costs incurred in connection with acquisitions, and costs related to the closure and/or consolidation of facilities, in each case, to the extent deducted in the calculation of consolidated net income for the Measurement Period (collectively, the “ Restructuring Charges, Business Optimization Expenses and Reserves ”), as calculated in the good faith determination of the Borrowers and as certified by the Borrower Agent’s chief financial officer, chief executive officer, controller or other comparable executive and (ii) the amount of cost savings, operating expense reductions, and synergies projected by the Borrowers in good faith to be realized as a result of specified actions taken or initiated prior to or during the 12-month period following the date thereof (which will be added to Adjusted Consolidated EBITDA as so projected until fully realized and calculated on a Pro Forma Basis as though such cost savings, operating expense reductions and synergies had been realized during such period), net of the amount of actual benefits realized during such period from such actions; provided that (x) such cost savings, operating expense reductions and synergies are reasonably identifiable and factually supportable (in the good faith determination of the Borrowers) and (y) such actions have been taken or initiated or are reasonably expected to be taken, no later than 12 months after the last day of the relevant Measurement Period (it being agreed and understood that no add-back for Restructuring Charges, Business Optimization Expenses and Reserves shall be permitted in any subsequent Measurement Period where any such action is discontinued or is no longer reasonably expected to be taken) (collectively, the “ Cost Savings and Synergies ”); provided, that the aggregate amount of add-backs made for the revenue synergies portion of Cost Savings and Synergies during any Measurement Period shall not exceed 10% (or such greater amount approved by Administrative Agent) of Adjusted Consolidated EBITDA on a Pro Forma Basis for that period calculated after giving pro forma effect to the inclusion of the add-backs pursuant to this clause and, without duplication, the Pro Forma Adjustments, and the add-backs pursuant to this clause shall not be duplicative of other adjustments for the same Measurement Period; provided, further, that the aggregate amount of add-backs made for Restructuring Charges, Business Optimization Expenses and Reserves and Cost Savings and Synergies during any Measurement Period, together with the

                        
   

 

 

9


aggregate Pro Forma Adjustments during such Measurement Period, shall not exceed 20% of Adjusted Consolidated EBITDA on a Pro Forma Basis for that period calculated after giving pro forma effect to the inclusion of the add-backs pursuant to this clause and, without duplication, after giving effect to the Pro Forma Adjustments as set forth below and the add-backs pursuant to this clause shall not be duplicative of other adjustments for the same Measurement Period

   

the amount of any severance costs to the extent deducted in the calculation of consolidated net income for the Measurement Period, as calculated in the good faith determination of the Borrowers and as certified by the Borrower Agent’s chief financial officer, chief executive officer, controller or other comparable executive

                        
   

 

any costs or expense incurred by Holdings, the Borrowers or a Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of Holdings (or the Borrowers through Holdings) or Net Cash Proceeds of an issuance of Equity Interests (other than Disqualified Equity Interests) of Holdings or the Borrowers

                        
   

 

proceeds received during such Measurement Period by Holdings and its Subsidiaries of business interruption insurance or business interruption proceeds that Borrower Agent reasonably expects will be received in cash within 180 days after the date of the business interruption event giving rise to such proceeds (with a deduction in the applicable future Measurement Period for any amount so added back to the extent not actually received in a subsequent Measurement Period and added back hereto in a prior Measurement Period, provided, that if such proceeds are actually received in a subsequent Measurement Period and previously added back in a prior Measurement Period, such amount shall not be permitted to be added back for such subsequent Measurement Period), in each case, to the extent not already included in consolidated net income

                        
   

 

 

10


  payments to or on behalf of Holdings or any indirect parent company of the Borrowers for out-of-pocket legal, accounting and filing costs, director fees, expenses and indemnities and other overhead expenses incurred in the Ordinary Course of Business for the benefit of Borrowers and their Subsidiaries or otherwise related to Holdings’ or such indirect parent company’s ownership of Borrowers and their Subsidiaries, in each case, to the extent deducted in the calculation of consolidated net income                         
     

 

  Pro Forma Adjustments (as defined in the Credit Agreement)                         
     

 

  for purposes of compliance with the financial covenants set forth in Sections 7.12(a) and (b), the amount of any proceeds from the issuance of Permitted Cure Securities or any cash common equity contributions received in connection with an exercise of a Cure Right pursuant to Section 8.04 of the Credit Agreement in respect of such Measurement Period                         
     

 

Less:      
  Cash payments made during such Measurement Period in respect of an accrual or reserve added back to consolidated net income in the calculation of Adjusted Consolidated EBITDA in a prior Measurement Period                         
     

 

Adjusted Consolidated EBITDA for the Measurement Period (for use in Section 7.12(b) of the Compliance Certificate)   $                       
     

 

 

 

2   Notwithstanding the foregoing, Adjusted Consolidated EBITDA for each period set forth below shall be deemed to be the amount set forth below opposite such month (subject to Pro Forma Adjustments and as a result of acquisitions, all as set forth above):

 

Period    Consolidated EBITDA  

Quarter ending June 30, 2013

   $  3,785,428   

Quarter ending September 30, 2013

   $ 8,112,504   

Month ending October 31, 2013

   $ 4,659,358   

Month ending November 30, 2013

   $ 4,780,369   

 

11


  Notwithstanding the foregoing there shall be included in determining Adjusted Consolidated EBITDA for any period, without duplication, (A) the Acquired EBITDA of any Person, all or substantially all of the assets of a Person, or any business unit, line of business or division of any Person acquired by the Borrowers or any Subsidiary during such period (but not the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired), to the extent not subsequently sold, transferred or otherwise disposed of by the Borrowers or such Subsidiary during such Measurement Period (each such Person, property, business or asset acquired and not subsequently so disposed of, an “ Acquired Entity or Business ”), based on the actual Acquired EBITDA of such Acquired Entity or Business for such Measurement Period (including the portion thereof occurring prior to such acquisition) and (B) an adjustment in respect of each Acquired Entity or Business equal to the amount of the Pro Forma Adjustment with respect to such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition), in the case of each of the foregoing clauses (A) and (B), as specified in a certificate executed by a Responsible Officer and delivered to the Administrative Agent; provided, that the aggregate amount of Pro Forma Adjustments for such period, together with the aggregate add-backs to consolidated net income made for Restructuring Charges, Business Optimization Expenses and Reserves and Cost Savings and Synergies during such period, shall not exceed 20% of Adjusted Consolidated EBITDA on a Pro Forma Basis for that period calculated after giving pro forma effect to the Pro Forma Adjustments pursuant to this clause and, without duplication, the add-backs to consolidated net income made for Restructuring Charges, Business Optimization Expenses and Reserves and Cost Savings and Synergies, and the Pro Forma Adjustments pursuant to this clause shall not be duplicative of other adjustments for the same period. There shall be excluded in determining Adjusted Consolidated EBITDA for any period the Disposed EBITDA of any Person, all or substantially all of the assets of a Person, or any business unit, line of business or division of any Person sold, transferred or otherwise disposed of, closed or classified as discontinued operations by the Borrowers or any Subsidiary during such Measurement Period (each such Person, property, business or asset so sold or disposed, a “ Sold Entity or Business ”), based on the actual Disposed EBITDA of such Sold Entity or Business for such Measurement Period (including the portion thereof occurring prior to such sale, transfer, disposition or conversion).
  Consolidated Total Net Leverage Ratio (ratio of Consolidated Total Net Funded Debt as of the last day of the Measurement Period to Adjusted Consolidated EBITDA for the Measurement Period)                   to 1.0
  Maximum Permitted Consolidated Total Net Leverage Ratio for the Measurement Period                   to 1.0
  In Compliance     Yes/No

 

12


CONSOLIDATED INTEREST COVERAGE RATIO

(Section 7.12(b))

 

Interest expenses paid (or required to be paid) in cash during the Measurement Period, net of (x) interest income received in cash and (y) net payments, if any, received pursuant to interest rate obligations under any Swap Contracts with respect to Indebtedness, by Holdings and its Subsidiaries for the Measurement Period (“ Total Cash Interest Expenses ”) 3   $  
   

 

Adjusted Consolidated EBITDA for the Measurement Period (calculated in the manner required by Section 7.12(a) of the Compliance Certificate)   $  
   

 

Consolidated Interest Coverage Ratio (Ratio of Adjusted Consolidated EBITDA to Total Cash Interest Expenses) for the Measurement Period                  to 1.0
Minimum required Consolidated Interest Coverage Ratio for the Measurement Period                   to 1.0
In Compliance     Yes/No

 

 

3   (a) For purposes of calculating the Consolidated Interest Coverage for the Measurement Periods ending March 31, 2014, June 30, 2014, September 30, 2014 and December 31, 2014, Total Cash Interest Expenses for each such Measurement Period shall be calculated by taking the amount of interest for the period from the Closing Date through the last day of the applicable Measurement Period and multiplying such amount by a fraction, the numerator of which is 365 and the denominator of which is the number of days from the Closing Date through the last day of such Measurement Period.

(b) For the avoidance of doubt, Total Cash Interest Expense shall be calculated on a Pro Forma Basis.

 

13


CALCULATION OF CONSOLIDATED SENIOR NET LEVERAGE RATIO

 

Consolidated Senior Net Debt is defined as follows:    
Consolidated Total Net Funded Debt (calculated in Section 7.12(a) of the Compliance Certificate) as of the last day of the Measurement Period   $  
      

 

Less:    the outstanding principal balance of all Subordinated Indebtedness as of the last day of the Measurement Period   $  
      

 

Consolidated Senior Net Debt as of the last day of the Measurement Period   $  
      

 

Adjusted Consolidated EBITDA (calculated in Section 7.12(a) of the Compliance Certificate) for the Measurement Period   $  
      

 

Consolidated Senior Net Leverage Ratio (ratio of Consolidated Senior Net Debt as of the last day of the Measurement Period to Adjusted Consolidated EBITDA for the Measurement Period)                   to 1.0

 

14


Exhibit E

See attached.


EXHIBIT E

TO

CREDIT AGREEMENT

EXCESS CASH FLOW CERTIFICATE

e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.)

Date:              , 20     

This certificate is given by [                      ], a [                      ], in its capacity as Borrower Agent, pursuant to Section 6.02(b) of that certain Credit Agreement dated as of January 31, 2014 among Borrower Agent, e.l.f. Beauty, Inc. (formerly known as J.A. Cosmetics Holdings, Inc.), a Delaware corporation (the “ Initial Borrower ”; the Initial Borrower and each Domestic Subsidiary of Initial Borrower that becomes a “Borrower” thereunder pursuant to a Joinder Agreement collectively, the “ Borrowers ”), the other Loan Parties from time to time party thereto, the Lenders from time to time party thereto, and Bank of Montreal, as Administrative Agent for Lenders (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”). Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement.

The undersigned Responsible Officer hereby certifies to Administrative Agent and Lenders, solely as an officer of Borrower Agent and not individually, as of the date hereof that:

 

  (a) set forth below is a correct calculation of Excess Cash Flow for the year ended December 31, 20      and a correct calculation of the required prepayment of:

$                      ; and

 

  (b) Schedule I attached hereto is based on the audited financial statements which have been delivered to the Administrative Agent in accordance with subsection 6.01(a) of the Credit Agreement.

[Remainder of page intentionally blank; signature page follows]


IN WITNESS WHEREOF, the undersigned officer has executed and delivered this certificate, solely as an officer of Borrower Agent and not individually, this              , 201    .

 

e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.), as Borrower Agent
By  

 

Name  

 

Title  

 

 

2


Schedule I

to Excess Cash Flow Certificate

e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.)

Calculations as of              , 201   

Excess Cash Flow Calculation

 

A.    Cash Flow
   1.    Adjusted Consolidated EBITDA for the applicable Fiscal Year (calculated in the manner set forth in the Compliance Certificate, but for the avoidance of doubt, excluding any Cure Amount included in the calculation of Adjusted Consolidated EBITDA)   $  
         

 

      Less, in each case, during the applicable Fiscal Year and without duplication: 1    
   2.    Unfinanced Capital Expenditures (calculated in the manner set forth in Schedule III hereto)   $  
         

 

   3.    Any taxes based on income, profits or capital, including but not limited to federal, provincial, state, franchise and similar taxes and foreign withholding taxes paid during such period (including penalties, interest, costs and expenses related to such taxes or arising from any tax examination) paid in cash and deducted in the determination of net income, net of any cash tax credit or other cash tax benefits received   $  
         

 

   4.    Interest expense (including but not limited to (i) net payments, if any, pursuant to interest rate Swap Contracts entered into for the purpose of hedging interest rate risk, (ii) bank fees, (iii) costs of surety bonds in connection with financing activities, and (iv) fees, charges, commissions, and discounts owed with respect to letters of credit or bankers acceptances) paid in cash, net of interest income received in cash, by Holdings and its Subsidiaries   $  
         

 

   5.    The aggregate amount of amortization payments required to be made, and actually made, by Holdings and its Subsidiaries in respect of all principal on all Indebtedness   $  
         

 

   6.    (i) Fees and expenses paid pursuant to the Management Agreement and (ii) directors’ fees, expenses and   $  
         

 

 

1   For the avoidance of doubt, (a) the deductions set forth in items A2 through A10 shall exclude such amounts attributable to the target of a Permitted Acquisition prior to the consummation of such Acquisition and (b) any amounts included as Unfinanced Capital Expenditures shall not be included as a deduction in any other item.

 

3


      indemnifications, in case of each of the foregoing clauses (i) and (ii), to the extent paid in cash, permitted to be paid pursuant to the Credit Agreement and added back to net income in the calculation of Adjusted Consolidated EBITDA    
   7.    Purchase price paid in cash in respect of all Permitted Acquisitions or Investments made in cash, in each instance permitted pursuant to Section 7.03(b), (f) or (l) of the Credit Agreement to the extent not funded with proceeds from the incurrence of Indebtedness (other than Revolving Loans), the issuance of Equity Interests (including capital contributions) or the Available Amount   $  
         

 

   8.    Transaction fees, costs and expenses paid in cash and incurred in connection with (i) the consummation (or attempted or proposed or anticipated consummation) of any Permitted Acquisitions or any Acquisitions which would reasonably be expected to have (if they had been consummated) satisfied the requirements of the defined term “Permitted Acquisition” but for the fact that they are not consummated and (ii) any proposed or actual issuance of debt or equity, restricted payment or other Investment permitted pursuant to Section 7.03(b) or (l), in each instance in (i) and (ii) to the extent (a) not funded with proceeds of Indebtedness (other than Revolving Loans), from the issuance of Equity Interests (including capital contributions) or the Available Amount and (b) added back to net income in the determination of Adjusted Consolidated EBITDA   $  
         

 

   9.    Fees and expenses (including those paid to Administrative Agent and the Lenders and the lenders under the Subordinated Indebtedness Documents and any other Indebtedness) paid in cash in connection with the consummation or administration of the Loan Documents or Subordinated Indebtedness Documents (including, but not limited to fees and expenses in connection with the Transaction) or any other Indebtedness (including in connection with any actual or proposed amendment, supplement, waiver or other modification to the Loan Documents or Subordinated Indebtedness Documents or any other Indebtedness, whether or not consummated), to the extent added back to net income in the determination of Adjusted Consolidated EBITDA, in each instance to the extent not funded with proceeds of Indebtedness (other than Revolving Loans) or from the issuance of Equity Interests (including capital contributions)   $  
         

 

   10.    Purchase price adjustments in connection with any Permitted Acquisition or other permitted Investment, in each case to the extent paid in cash during such Fiscal Year not funded with proceeds of Indebtedness (other than Revolving Loans) or from the issuance of Equity Interests (including capital contributions)   $  
         

 

 

4


   11.    the amount of any earn out obligation paid in cash during such Fiscal Year   $  
         

 

   12.    Restructuring Charges, Business Optimization Expenses and Reserves (as defined in Exhibit D to the Credit Agreement) to the extent paid in cash and added back to net income in the determination of Adjusted Consolidated EBITDA   $  
         

 

   13.    Cost Savings and Synergies (as defined in Exhibit D to the Credit Agreement) to the extent added back to net income in the determination of Adjusted Consolidated EBITDA   $  
         

 

   14.    proceeds received by Holdings and its Subsidiaries of business interruption insurance to the extent added back to net income in the determination of Adjusted Consolidated EBITDA   $  
         

 

   15.    Restricted Payments paid in cash and permitted by Section 7.06(c), (d) or (e) of the Credit Agreement   $  
         

 

   16.    Any increases in working capital of Holdings and its Subsidiaries (as calculated pursuant to Schedule II below)   $  
         

 

   17.    Amount of any proceeds from the issuance of Permitted Cure Securities or cash common equity contributions received in connection with an Equity Cure pursuant to Section 8.04 of the Credit Agreement, to the extent added back to net income in the determination of Adjusted Consolidated EBITDA and without duplication of amounts excluded pursuant to A.1. above   $  
         

 

   18.    All other add backs to Adjusted Consolidated EBITDA to the extent paid in cash and added back to net income in the determination of Adjusted Consolidated EBITDA, in each instance to the extent not funded with proceeds from the incurrence of Indebtedness (other than Revolving Loans), the issuance of Equity Interests (including capital contributions), the Available Amount, insurance proceeds, indemnity payments or other third party reimbursements   $  
         

 

   19.    cash losses from extraordinary, non-recurring or unusual items   $  
         

 

   20.    the amount paid in cash in respect of any item for which, in a prior Fiscal Year, a non-cash loss, expense, accrual or charge (other than any non-cash accrual for a potential cash item in any future period, the cash payment of which was paid in the applicable Fiscal Year) was included in determining Adjusted Consolidated EBITDA in such prior Fiscal Year   $  
         

 

   21.    severance costs to the extent paid in cash and added back to net income in the determination of Adjusted Consolidated EBITDA   $  
         

 

 

5


   22.    Restricted Payments paid in cash and permitted pursuant to Section 7.06(m) to the extent not funded with the proceeds of the incurrence of Indebtedness (other than Revolving Loans), the issuance of Equity Interests (including capital contributions), the Available Amount, insurance proceeds, indemnity payments or other third party reimbursements   $  
         

 

B.

   Total deductions from Adjusted Consolidated EBITDA (sum of A2 through A22 above)   $  
         

 

C.

   Any cash gains from extraordinary items, other than any business interruption proceeds   $  
         

 

D.

   Any decreases in working capital of Holdings and its Subsidiaries for the applicable Fiscal Year (as calculated pursuant to Schedule II below)   $  
         

 

E.

   Excess Cash Flow (A1 minus B plus C plus D above)   $  
         

 

F.

   Applicable ECF Percentage     [50%][25%][0%] 2

G.

   Gross Excess Cash Flow Prepayment Amount (result of E multiplied by F above)   $  
         

 

H.

   The aggregate amount of voluntary prepayments of the Term Loan (other than Discounted Voluntary Prepayments) and, to the extent accompanied by a corresponding permanent reduction in the Revolving Credit Commitment, the Revolving Credit Facility, in each case, made (i) during such Fiscal Year (other than any voluntary prepayments made during the first 120 days of such Fiscal Year to the extent such voluntary prepayments were credited in the calculation of the Excess Cash Flow prepayment for the prior Fiscal Year) or (ii) within 120 days after the end of the Fiscal Year for which such Excess Cash Flow is being calculated that are applied in the manner set forth in Section 2.06(b)(iv) of the Credit Agreement, in each case, to the extent not financed with proceeds from the incurrence of Long-term Indebtedness (other than Revolving Loans)   $  
         

 

I.

   Net Excess Cash Flow Prepayment Amount (G minus H above)   $  
         

 

      For the avoidance of doubt, for purposes of calculating Excess Cash Flow for any Fiscal Year, for each Permitted Acquisition or other Investment constituting an Acquisition permitted to be made under the Credit Agreement consummated during such Fiscal Year, the Adjusted Consolidated EBITDA of a target of any such Permitted Acquisition or Investment shall be included    

 

2   Choose applicable percentage pursuant to Section 2.06(b)(i) of the Credit Agreement.

 

6


      in such calculation only from and after the date of the consummation of such Permitted Acquisition and/or Investment and (y) for the purposes of calculating Net Working Capital, the (A) total assets of a target of such Permitted Acquisition (other than cash and Cash Equivalents), as calculated as at the date of consummation of the applicable Permitted Acquisition, which may properly be classified as current assets on a consolidated balance sheet of Holdings and its Subsidiaries in accordance with GAAP (assuming, for the purpose of this clause (A), that such Permitted Acquisition has been consummated) and (B) the total liabilities of Holdings and its Subsidiaries, as calculated as at the date of consummation of the applicable Permitted Acquisition, which may properly be classified as current liabilities on a consolidated balance sheet of Holdings and its Subsidiaries in accordance with GAAP (assuming, for the purpose of this clause (B), that such Permitted Acquisition has been consummated), shall, in the case of both immediately preceding clauses (A) and (B), be calculated as the difference between the Net Working Capital at the end of the applicable Fiscal Year from the date of consummation of the Permitted Acquisition.    

 

7


Schedule II

to Excess Cash Flow Certificate

Decrease (increase) in Working Capital, for the purposes of the calculation of Excess Cash Flow, means the following:

 

     Beg. of Period      End of Period  

Consolidated current assets:

   $                            $                        

Less (to the extent included in current assets):

     

Cash

                                                         

Cash Equivalents

                                                         

Deferred Tax Assets

                                                         

Adjusted current assets

   $                            $                        

Consolidated current liabilities:

   $                            $                        

Less (to the extent included in current liabilities):

     

Revolving Loans

                                                         

Current portion of Indebtedness and accrued interest thereon

                                                         

Deferred Tax Liabilities

                                                         

Current liabilities consisting of deferred revenue

                                                         

Adjusted current liabilities

   $                            $                        

Working Capital (adjusted current assets minus adjusted current liabilities)

   $                            $                        

Decrease (Increase) in Working Capital (beginning of period minus end of period Working Capital)

      $                        

 

8


Schedule III

to Excess Cash Flow Certificate

Calculation of Unfinanced Capital Expenditures

 

Expenditures capitalized during the Fiscal Year by Holdings and its Subsidiaries that, in conformity with GAAP, are or are required to be included as additions to property, plant or equipment or other long-term assets   $  
      

 

Less, in each instance to the extent included above and without duplication:    
      

 

(i)    expenditures made in connection with the replacement, substitution, restoration or repair of assets to the extent financed with (x) insurance proceeds paid on account of the loss of or damage to the assets being replaced, restored or repaired or (y) awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced    
      

 

(ii)    the purchase price of equipment that is purchased substantially concurrently with the trade-in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time,    
      

 

(iii)    the purchase of plant, property or equipment to the extent financed with the proceeds of Dispositions that are not required to be applied to prepay Term Loans pursuant to Section 2.06(b)(ii) of the Credit Agreement    
      

 

(iv)    expenditures that are accounted for as capital expenditures by Holdings, the Borrowers or any Subsidiary and that actually are paid for or reimbursed by a Person other than Holdings, the Borrowers or any Subsidiary    
      

 

(v)    expenditures that are paid with proceeds of Equity Interests (including capital contributions) or the Available Amount    
      

 

(vi)    the book value of any asset owned by the Borrowers or any Subsidiary prior to or during such period to the extent that such book value is included as a capital expenditure during such period as a result of such Person reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having been made in such period; provided that (x) any expenditure necessary in order to permit such asset to be reused shall be included as a Consolidated Capital Expenditure during the period in which such expenditure actually is made and (y) such book value shall have been included in Consolidated Capital Expenditures when such asset was originally acquired    
      

 

 

9


(vii)

   any capitalized interest expense reflected as additions to property, plant or equipment in the consolidated balance sheet of Holdings, the Borrowers and their Subsidiaries    
      

 

(viii)

   any non-cash compensation or other non-cash costs reflected as additions to property, plant or equipment in the consolidated balance sheet of Holdings, the Borrowers and their Subsidiaries    
      

 

Equals:

   Consolidated Capital Expenditures   $  
      

 

Less:

   Consolidated Capital Expenditures financed during the Fiscal Year under Capital Leases or other Indebtedness (excluding drawings under the Revolving Credit Facility)    
      

 

Equals:

   Unfinanced Capital Expenditures   $  
      

 

 

10

Exhibit 10.7

Joinder to Credit Agreement

January 31, 2014

This Joinder to Credit Agreement (this “Agreement”) dated as of this 31st day of January, 2014 is made by J.A. Cosmetics US, Inc., a Delaware corporation (“ J.A. Cosmetics ”). JA 139 FULTON STREET CORP., a New York corporation, JA 741 RETAIL CORP., a New York corporation and JA COSMETICS RETAIL, INC., a New York corporation (each a “ New Borrower ” and collectively, the “ New Borrowers ”) and J.A. Cosmetics Holdings, Inc., a Delaware corporation, (a “ New Loan Party ”) to and in favor of Bank of Montreal, in its capacity as Administrative Agent for the Lenders and L/C Issuer parties under the Credit Agreement referred to below.

Reference hereby is made to that certain Credit Agreement, dated as of January 31, 2014 (as extended, renewed, modified, supplemented, amended or restated from time to time, the “ Credit Agreement ” by and among J.A. Cosmetics Holdings, Inc., a Delaware corporation (“ Holdings ”), as the initial borrower (the “ Initial Borrower ”; the Initial Borrower, together with each other Person who joins in the execution of the Credit Agreement and agrees to be bound as a Borrower thereby pursuant to a Joinder Agreement, are referred to individually as a “ Borrower ” and collectively as the “ Borrowers ”), the Guarantors party thereto, certain Lenders which are signatories thereto, and Bank of Montreal, as Administrative Agent for the Lenders and L/C Issuer. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Credit Agreement.

Each New Borrower hereby (i) acknowledges, agrees and elects to be a “ Borrower ” and a “ Loan Party ” for all purposes of and under the Credit Agreement, each of the Notes referenced therein and each of the other Loan Documents and delivered in connection therewith, effective from the date hereof and (ii) appoints Initial Borrower, and from and after the consummation of the Closing Date Acquisition, J.A. Cosmetics, to act on its behalf as the “Borrower Agent”, and Initial Borrower, and from and after the consummation of the Closing Date Acquisition, J.A. Cosmetics, acknowledges and agrees that it shall act as “Borrower Agent” for each New Borrower, under and in accordance with the terms and conditions of the Credit Agreement. All references in the Credit Agreement and the other Loan Documents to the terms “Borrower” or “Borrowers” and “Loan Party” or “Loan Parties” shall be deemed to include each New Borrower. By its execution of this Agreement, each New Borrower hereby confirms that the representations and warranties contained in Article V of the Credit Agreement are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) as to such New Borrower as of the effective date of this Agreement, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such earlier date). Without limiting the generality of the foregoing, each New Borrower hereby agrees


to perform all the obligations of a Borrower and a Loan Party under, and to be bound in all respects by the terms of, the Credit Agreement, each of the Notes and the Fee Letter to the same extent and with the same force and effect as if it were a signatory party thereto as a Borrower and a Loan Party and hereby acknowledges and agrees that it is jointly and severally liable for all of the now existing and hereafter arising Secured Obligations.

Each New Loan Party hereby (i) acknowledges, agrees and elects to be a “ Loan Party ” and a “ Guarantor ” for all purposes of and under the Credit Agreement and each of the other Loan Documents and delivered in connection therewith, effective from the date hereof. All references in the Credit Agreement and the other Loan Documents to the terms “Loan Party”, “Loan Parties”, “Guarantor” or “Guarantors” shall be deemed to include each New Loan Party. By its execution of this Agreement, each New Loan Party hereby confirms that the representations and warranties contained in Article V of the Credit Agreement are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) as to such New Loan Party as of the effective date of this Agreement, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such earlier date). Without limiting the generality of the foregoing, each New Loan Party hereby agrees to perform all the obligations of a Loan Party and a Guarantor under, and to be bound in all respects by the terms of, the Credit Agreement to the same extent and with the same force and effect as if it were a signatory party thereto as a Loan Party and a Guarantor.

The Administrative Agent, for and on behalf of the Lenders, in accordance with the Credit Agreement, hereby irrevocably releases and forever discharges Holdings of all of its Secured Obligations solely in its capacity as a Borrower (but not, for the avoidance of doubt, any Secured Obligations of Holdings in its capacity as a Guarantor and Grantor, which Secured Obligations (and the Liens granted to secure such Secured Obligations) are hereby reaffirmed by Holdings) with respect to the Credit Agreement or any of the other Loan Documents on or prior to the date hereof. Each New Borrower hereby assumes (i) all such Secured Obligations of Holdings in its capacity as a Borrower under and with respect to the Credit Agreement and each of the other Loan Documents, it being agreed and understood that such release of Holdings and assumption by the New Borrowers shall not constitute or effect a novation of such Secured Obligations under the Credit Agreement or any other Loan Document and (ii) all of Holding’s obligations under the Fee Letter. It is the express intention of the parties hereto to reaffirm the Indebtedness created under the Credit Agreement which is evidenced by the Notes provided for therein and secured by the Collateral.

Except as specifically modified hereby, all of the terms and conditions of the Credit Agreement and other Loan Documents shall remain unchanged and in full force and effect.


No reference to this Agreement need be made in the Credit Agreement or in any other Loan Document or other document or instrument making reference to the same, any reference to Loan Documents in any of such to be deemed a reference to the Credit Agreement, or other Loan Documents, as applicable, as modified hereby.

Each of the undersigned acknowledges that this Agreement shall be effective upon execution by each New Loan Party, each New Borrower and the Administrative Agent. This Agreement shall be construed in accordance with and governed by the internal laws of the State of New York.

This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart. Delivery of an executed signature page of this Agreement by facsimile transmission or electronic transmission shall be as effective as delivery of a manually executed counterpart hereof.

[Remainder of Page Intentionally Left Blank; Signature Page Follow]


Very truly yours,
NEW BORROWS:
J.A. COSMETICS US, INC.
By:  

/s/ Frank Pisani

Name:   Frank Pisani
Title:   Chief Financial Officer
J.A. 139 FULTON STREET CORP.
By:  

/s/ Frank Pisani

Name:   Frank Pisani
Title:   Chief Financial Officer
J.A. 741 RETAIL CORP.
By:  

/s/ Frank Pisani

Name:   Frank Pisani
Title:   Chief Financial Officer
JA COSMETICS RETAIL, INC.
By:  

/s/ Frank Pisani

Name:   Frank Pisani
Title:   Chief Financial Officer
NEW LOAN PARTY:
J.A. COSMETICS HOLDINGS, INC.
By:  

/s/ Frank Pisani

Name:   Frank Pisani
Title:   Chief Financial Officer


BANK OF MONTREAL,
as Administrative Agent
By:  

/s/ Tara Cuprisin

Name:   Tara Cuprisin
Title:   Director


Acknowledged and accepted as of the date
first written above:
J.A. COSMETICS HOLDINGS, INC.
By:  

/s/ Frank Pisani

Name:   Frank Pisani
Title:   Vice President

Exhibit 10.8(a)

Execution Version

This instrument, the indebtedness and any other rights and obligations evidenced hereby are subordinate in the manner and to the extent set forth in that certain Subordination and Intercreditor Agreement (the “ Intercreditor Agreement ”) dated as of January 31, 2014 among Bank of Montreal and U.S. Bank National Association, and each holder of this instrument, by its acceptance hereof, shall be bound by the provisions of the Intercreditor Agreement.

 

 

SECOND LIEN CREDIT AGREEMENT

Dated as of January 31, 2014

among

J.A. COSMETICS HOLDINGS, INC. , as Initial Borrower,

and each other Person that becomes a Borrower hereunder by execution of a Joinder Agreement,

as the Borrowers,

THE OTHER PERSONS PARTY HERETO THAT ARE DESIGNATED AS LOAN PARTIES,

as Guarantors,

CERTAIN FINANCIAL INSTITUTIONS,

as Lenders,

and

U.S. BANK NATIONAL ASSOCIATION,

as Collateral Agent

 

 


TABLE OF CONTENTS

 

ARTICLE I DEFINITIONS AND ACCOUNTING TERMS

     1   
 

1.01.

  

Defined Terms

     1   
 

1.02.

  

Other Interpretive Provisions

     33   
 

1.03.

  

Accounting Terms

     34   
 

1.04.

  

Uniform Commercial Code

     35   
 

1.05.

  

Reserved

     35   
 

1.06.

  

Foreign Currency

     36   
 

1.07.

  

Times of Day

     36   

ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS

     36   
 

2.01.

  

Loan Commitments

     36   
 

2.02.

  

Borrowings and Continuations of Loans

     36   
 

2.03.

  

Reserved

     37   
 

2.04.

  

Reserved

     37   
 

2.05.

  

Repayment of Loans

     37   
 

2.06.

  

Prepayments

     37   
 

2.07.

  

Termination or Reduction of Commitments

     41   
 

2.08.

  

Interest

     41   
 

2.09.

  

Fees

     42   
 

2.10.

  

Computation of Interest and Fees

     42   
 

2.11.

  

Evidence of Debt

     42   
 

2.12.

  

Payments Generally; Collateral Agent’s Clawback

     42   
 

2.13.

  

Sharing of Payments by Lenders

     43   
 

2.14.

  

Reserved

     44   
 

2.15.

  

Nature and Extent of Each Borrower’s Liability

     44   

 

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2.16.

  

Reserved

     46   
 

2.17.

  

Reserved

     46   
 

2.18.

  

Reserved

     46   
 

2.19.

  

Prepayments Below Par

     46   

ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY

     49   
 

3.01.

  

Taxes

     49   
 

3.02.

  

Illegality

     52   
 

3.03.

  

Inability to Determine Rates

     53   
 

3.04.

  

Increased Costs; Reserves on Eurodollar Rate Loans

     53   
 

3.05.

  

Compensation for Losses

     55   
 

3.06.

  

Reimbursement

     55   
 

3.07.

  

Mitigation Obligations

     56   
 

3.08.

  

Survival

     56   

ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

     56   
 

4.01.

  

Conditions of Initial Credit Extension

     56   

ARTICLE V REPRESENTATIONS AND WARRANTIES

     60   
 

5.01.

  

Existence, Qualification and Power

     60   
 

5.02.

  

Authorization; No Contravention; Consents

     60   
 

5.03.

  

Binding Effect

     60   
 

5.04.

  

Financial Statements; No Material Adverse Effect

     60   
 

5.05.

  

Litigation

     61   
 

5.06.

  

No Default

     61   
 

5.07.

  

Ownership of Property; Liens

     61   
 

5.08.

  

Environmental Compliance

     61   
 

5.09.

  

Insurance and Casualty

     62   

 

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5.10.

  

Taxes

     63   
 

5.11.

  

ERISA Compliance

     63   
 

5.12.

  

Subsidiaries; Equity Interests; Capitalization

     64   
 

5.13.

  

Margin Regulations; Investment Company Act

     64   
 

5.14.

  

Disclosure

     64   
 

5.15.

  

Compliance with Laws; Anti-Terrorism Laws and Foreign Asset Control Regulations

     64   
 

5.16.

  

Labor Matters

     65   
 

5.17.

  

Brokers

     65   
 

5.18.

  

Intellectual Property

     65   

ARTICLE VI AFFIRMATIVE COVENANTS

     66   
 

6.01.

  

Financial Statements

     66   
 

6.02.

  

Other Information

     67   
 

6.03.

  

Notices

     68   
 

6.04.

  

Payment of Taxes and Assessments

     69   
 

6.05.

  

Preservation of Existence, Etc.

     69   
 

6.06.

  

Maintenance of Properties

     69   
 

6.07.

  

Maintenance of Insurance; Business Interruption Proceeds

     70   
 

6.08.

  

Compliance with Laws Generally; Environmental Laws

     71   
 

6.09.

  

Books and Records

     71   
 

6.10.

  

Inspection Rights; Meetings with Collateral Agent

     71   
 

6.11.

  

Compliance with ERISA

     71   
 

6.12.

  

Further Assurances

     72   
 

6.13.

  

Use of Proceeds

     73   
 

6.14.

  

Control Agreements

     73   
 

6.15.

  

Collateral Access Agreements

     74   

 

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6.16.

  

Joinder Agreement

     74   
 

6.17.

  

[Reserved]

     74   
 

6.18.

  

[Reserved

     74   
 

6.19.

  

Amendments to Certain Agreements

     74   

ARTICLE VII NEGATIVE COVENANTS

     75   
 

7.01.

  

Indebtedness

     75   
 

7.02.

  

Liens

     79   
 

7.03.

  

Investments

     81   
 

7.04.

  

Mergers, Dissolutions, Etc.

     85   
 

7.05.

  

Dispositions

     85   
 

7.06.

  

Restricted Payments

     86   
 

7.07.

  

Change in Nature of Business

     89   
 

7.08.

  

Transactions with Affiliates

     89   
 

7.09.

  

Inconsistent Agreements

     90   
 

7.10.

  

Reserved

     91   
 

7.11.

  

Prepayment of Indebtedness; Amendment to Senior Indebtedness Documents; Amendment to Organization Documents; Amendment to Management Agreement; Payment of Earnouts and Other Deferred Purchase Price Obligations

     91   
 

7.12.

  

Financial Covenants

     92   
 

7.13.

  

Anti-Terrorism Laws and Foreign Asset Control Regulations

     93   
 

7.14.

  

Fiscal Year

     93   
 

7.15.

  

Holdings Covenant

     94   

ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES

     94   
 

8.01.

  

Events of Default

     94   
 

8.02.

  

Remedies Upon Event of Default

     97   

 

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8.03.

  

Application of Funds

     97   
 

8.04.

  

Equity Cure Right

     98   

ARTICLE IX COLLATERAL AGENT

     99   
 

9.01.

  

Appointment and Authority; Limitations on Lenders

     99   
 

9.02.

  

Rights as a Lender

     99   
 

9.03.

  

Exculpatory Provisions

     100   
 

9.04.

  

Reliance by Collateral Agent

     100   
 

9.05.

  

Delegation of Duties

     101   
 

9.06.

  

Resignation of Collateral Agent

     101   
 

9.07.

  

Non-Reliance on Collateral Agent and Other Lenders

     102   
 

9.08.

  

Reserved

     102   
 

9.09.

  

Collateral Agent May File Proofs of Claim; Credit Bidding

     102   
 

9.10.

  

Collateral Matters

     103   
 

9.11.

  

Other Collateral Matters

     103   
 

9.12.

  

Right to Perform, Preserve and Protect

     104   
 

9.13.

  

Reserved

     104   
 

9.14.

  

Reserved

     104   
 

9.15.

  

Authorization to Enter into Intercreditor Agreement

     104   

ARTICLE X MISCELLANEOUS

     105   
 

10.01.

  

Amendments, Etc.

     105   
 

10.02.

  

Notices; Effectiveness; Electronic Communication

     107   
 

10.03.

  

No Waiver; Cumulative Remedies

     110   
 

10.04.

  

Expenses; Indemnity; Damage Waiver

     111   
 

10.05.

  

Marshalling; Payments Set Aside

     113   
 

10.06.

  

Successors and Assigns

     114   

 

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10.07.

  

Treatment of Certain Information; Confidentiality

     122   
 

10.08.

  

Right of Setoff

     123   
 

10.09.

  

Interest Rate Limitation

     123   
 

10.10.

  

Counterparts; Integration; Effectiveness

     123   
 

10.11.

  

Survival

     124   
 

10.12.

  

Severability

     124   
 

10.13.

  

Replacement of Lenders

     124   
 

10.14.

  

Governing Law; Jurisdiction; Etc.

     125   
 

10.15.

  

Waiver of Jury Trial

     126   
 

10.16.

  

USA PATRIOT Act Notice

     126   
 

10.17.

  

No Advisory or Fiduciary Responsibility

     126   
 

10.18.

  

Attachments

     127   
 

10.19.

  

Intercreditor Agreement

     127   

ARTICLE XI CONTINUING GUARANTEE

     128   
 

11.01.

  

Guarantee

     128   
 

11.02.

  

Rights of Lenders

     128   
 

11.03.

  

Certain Waivers

     129   
 

11.04.

  

Obligations Independent

     130   
 

11.05.

  

Subrogation

     130   
 

11.06.

  

Termination; Reinstatement

     130   
 

11.07.

  

Subordination

     131   
 

11.08.

  

Condition of Borrowers

     131   
 

11.09.

  

Limitation of Liability

     131   

 

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SCHEDULES

 

2.01    Commitments and Applicable Percentages
5.05    Litigation
5.07(b)(1)    Owned Real Estate
5.07(b)(2)    Leased Real Estate
5.09    Insurance
5.11(d)    Pension Plans
5.11(e)    Foreign Plans
5.12    Subsidiaries; Capitalization; Other Equity Investments
5.16    Labor Matters
7.01    Existing Indebtedness
7.02    Existing Liens
7.03    Existing Investments
7.08    Affiliate Transactions
10.02    Collateral Agent’s Office (and Account)

EXHIBITS

 

Form of

A    Committed Loan Notice
B    [Reserved]
C-1    [Reserved]
C-2    Term Loan Note
D    Compliance Certificate
E    Excess Cash Flow Certificate
F    Assignment and Assumption
G    Closing Checklist
H    Form of Joinder to Credit Agreement

 

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SECOND LIEN CREDIT AGREEMENT

This SECOND LIEN CREDIT AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “ Agreement ”) is entered into as of January 31, 2014, among J.A. Cosmetics Holdings, Inc., a Delaware corporation (“ Holdings ”), as the initial borrower (the “ Initial Borrower ”; each of the Initial Borrower, and each Domestic Subsidiary of Initial Borrower who hereafter becomes a “Borrower” hereunder pursuant to a Joinder Agreement, may be referred to individually, as a “ Borrower ” and collectively herein, as “ Borrowers ”), the other Persons party hereto that are designated as a “Loan Party”, EACH LENDER FROM TIME TO TIME PARTY HERETO (collectively, the “ Lenders ” and individually, a “ Lender ”), and U.S. BANK NATIONAL ASSOCIATION , as Collateral Agent.

PRELIMINARY STATEMENTS

A. Borrowers have requested that Lenders provide a credit facility to Borrowers to finance their mutual and collective business enterprise.

B. Lenders are willing to provide the credit facility on the terms and conditions set forth in this Agreement.

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

1.01. Defined Terms . As used in this Agreement, the following terms shall have the meanings set forth below:

Acceptable Discount ” has the meaning specified in Section 2.19(c) .

Acceptance Date ” has the meaning specified in Section 2.19(b) .

Acquired EBITDA ” means, with respect to any Acquired Entity or Business for any period, the amount for such period of Adjusted Consolidated EBITDA of such Acquired Entity or Business, as determined on a consolidated basis for such Acquired Entity or Business.

Acquired Entity or Business ” has the meaning specified in the definition of the term “Adjusted Consolidated EBITDA” in the Compliance Certificate.

Acquisition ” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in the acquisition of (a) a majority equity or other ownership interest in another Person (including the purchase of an option, warrant or convertible or similar type security to acquire such a majority interest at the time it becomes exercisable by the holder thereof) or (b) assets of another Person which constitute all or substantially all of the assets of such Person or of a line or lines of business or division conducted by such Person.

 

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Adjusted Consolidated EBITDA ” has the meaning specified in the Compliance Certificate.

Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by Collateral Agent.

Affiliate ” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

Agent Parties ” has the meaning specified in Section 10.02(c) .

Agreement ” has the meaning specified in the introductory paragraph hereto.

Applicable Discount ” has the meaning specified in Section 2.19(c) .

Applicable Indebtedness ” has the meaning specified in the definition of Weighted Average Life to Maturity.

Applicable Margin ” means (a) in the case of a Eurodollar Rate Loan, 10.00% per annum and (b) if Section 3.02 or 3.03 applies, in the case of a Base Rate Loan, 9.00% per annum.

Applicable Percentage ” means in respect of the Term Loan Facility, with respect to any Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Term Loan Facility represented by (i) on or prior to the Closing Date, such Term Lender’s Term Loan Commitment at such time and (ii) thereafter, the Outstanding Amount of such Term Lender’s Term Loans at such time. The initial Applicable Percentage of each Lender with respect to the Term Loan Facility is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

Approved Fund ” means, with respect to any Lender, any Fund that is administered, advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages such Lender.

Assignee Group ” means two or more assignees of Loans or Commitments that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

Assignment and Assumption ” means an assignment and assumption agreement entered into by a Lender and an assignee of Loans or Commitments (with the consent of any party whose consent is required by Section 10.06(b) ) (or the Sponsor or its Affiliates in the case of an assignment pursuant to Section 10.06(g) ), and accepted by Collateral Agent, in substantially the form of Exhibit F or any other form reasonably approved by Collateral Agent.

Attributable Indebtedness ” means, on any date, (a) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such

 

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Person prepared as of such date in accordance with GAAP and (b) in respect of any synthetic lease or other similar financing lease, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.

Audited Financial Statements ” means the audited consolidated balance sheet of the Target and its Subsidiaries for the Fiscal Year ended December 31, 2013, and the related consolidated statements of income or operations and cash flows for such Fiscal Year, including the notes thereto.

Auditor ” has the meaning specified in Section 6.01(a) .

Available Amount ” means, on any date of determination, the sum (but not less than zero for any applicable fiscal year) of (without duplication) (a) an amount equal to the portion of Excess Cash Flow (50%, 75% or 100%, as applicable) for each Fiscal Year ending after the Closing Date for which an Excess Cash Flow Certificate has been delivered, commencing with the Fiscal Year ending December 31, 2014 (calculated for the period commencing on the Closing Date and ending on December 31, 2014), and prior to such date of determination that was not required to be applied to prepay the Obligations pursuant to Section 2.06(b)(i) or prepay the Senior Indebtedness pursuant to the terms of the Senior Loan Agreement (for the avoidance of doubt, any portion of the Excess Cash Flow prepayment not required to be paid pursuant to Section 2.06(b)(vi) shall not increase the amount in this clause (a)); plus (b) the aggregate amount of Net Cash Proceeds of an issuance by Holdings of or capital contribution (including, without limitation, any capital contribution of marketable securities or other Cash Equivalents) in respect of any of its Equity Interests that are not Disqualified Equity Interests or Permitted Cure Securities and which are not used to make Restricted Payments under Section 7.06(i) received by any of the Borrowers during the period from and including the Business Day immediately following the Closing Date through and including such date of determination; minus (c) the aggregate amount of the Available Amount used to pay dividends and distributions pursuant to Section 7.06(h) during the period from and including the Business Day immediately following the Closing Date through and including such date of determination (without taking account of the intended usage of the Available Amount on such date of determination); minus (d) the aggregate amount of the Available Amount used for Permitted Acquisitions during the period from and including the Business Day immediately following the Closing Date through and including such date of determination (without taking account of the intended usage of the Available Amount on such date of determination); minus (e) the aggregate amount of the Available Amount used to make other investments pursuant to Section 7.03(z) during the period from and including the Business Day immediately following the Closing Date through and including such date of determination (without taking account of the intended usage of the Available Amount on such date of determination); minus (f) the aggregate amount of the Available Amount used to make cash loans and advances to officers, directors and employees pursuant to Section 7.03(x) during the period from and including the Business Day immediately following the Closing Date through and including such date of determination (without taking account of the intended usage of the Available Amount on such date of determination); minus (g) the aggregate amount of the Available Amount used to make payments of Other Subordinated Indebtedness pursuant to Section 7.11(a)(ii) during the period from and including the Business Day immediately following the Closing Date through and including such date of determination (without taking account of the intended usage of the Available Amount on such date of determination).

 

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Bank of Montreal ” means Bank of Montreal, a Canadian chartered bank acting through its Chicago branch.

Bankruptcy Code ” means Title 11 of the United States Code, as in effect from time to time.

Base Rate ” means, if Section 3.02 or 3.03 apply, for any day, a fluctuating rate per annum equal to the highest of (a) the rate of interest announced by U.S. Bank from time to time as its prime rate, or its equivalent for U.S. Dollar loans to borrowers located in the United States, for such day (whether or not the lowest rate offered by U.S. Bank and with any change in such rate announced by U.S. Bank taking effect at the opening of business on the day specified in the public announcement of such change); (b) the Federal Funds Rate for such day, plus 0.50%; and (c) the Eurodollar Rate, calculated for such day for an Interest Period of one month (but for the avoidance of doubt, not less than 1.00%) plus 1.00%.

Base Rate Loan ” means a Loan (or segment of a Loan) that bears interest based on the Base Rate.

Borrower Agent ” has the meaning specified in Section 2.15(d) .

Borrower ” and “ Borrowers ” has the meaning specified in the introductory paragraph hereto.

Borrower Materials ” has the meaning specified in Section 10.02(c) .

Borrowing ” means a Term Borrowing.

Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where Collateral Agent’s Office is located and, if such day relates to any interest rate settings as to a Eurodollar Rate Loan, any fundings, disbursements, settlements and payments in respect of any such Eurodollar Rate Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such Eurodollar Rate Loan, means any such day that is also a London Banking Day.

Capital Leases ” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases; provided , that, for purposes of this Agreement, the determination of whether a lease is required to be accounted for as a Capital Lease on the balance sheet of such Person shall be made by reference to GAAP as in effect on the Closing Date.

Cash Equivalents ” means any of the following types of property, to the extent owned by Holdings or any of its Subsidiaries:

(a) cash, denominated in Dollars or, with respect to a Borrower or any of its Subsidiaries, any other lawful currency and investments of comparable tenor and credit quality to those described in the other clauses in this definition customarily utilized in countries in which Holdings or any of its Subsidiaries operate for cash management purposes;

 

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(b) readily marketable direct obligations of the government of the United States or any agency or instrumentality thereof, or obligations the timely payment of principal and interest on which are fully and unconditionally guaranteed by the government of the United States or any state or municipality thereof, in each case so long as such obligation has an investment grade rating by S&P and Moody’s;

(c) commercial paper maturing no more than 24 months from the date of creation thereof and rated at least P-1 (or the then equivalent grade) by Moody’s and A-1 (or the then equivalent grade) by S&P, or carrying an equivalent rating by a nationally recognized rating agency if at any time neither Moody’s and S&P shall be rating such obligations;

(d) insured certificates of deposit or bankers’ acceptances of, or time deposits with any commercial bank that (i) is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause (c) above, (iii) is organized under the laws of the United States or of any state thereof and (iv) has combined capital and surplus of at least $250,000,000;

(e) readily marketable general obligations of any corporation organized under the laws of any state of the United States, payable in the United States, expressed to mature not later than 24 months following the date of issuance thereof and rated A or better by S&P or A2 or better by Moody’s;

(f) readily marketable shares of investment companies or money market funds that, in each case, invest solely in the foregoing Investments described in clauses (a) through (e) above; and

(g) in the case of a Foreign Subsidiary, Investments of a kind or type similar to Cash Equivalents described above (replacing United States or any state, agency, instrumentality or municipality thereof with the corresponding Governmental Authorities of any foreign jurisdiction and using comparable ratings, if any, customary in the relevant jurisdiction) in any country other than the United States where such Foreign Subsidiary maintains a business location.

Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any Law, (b) any change in any Law or in the administration, interpretation, implementation or application thereof or (c) the making or issuance of any request, rule, guideline, interpretation, or directive (whether or not having the force of law) by any Governmental Authority; provided , that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the

 

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United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued except to the extent required to be complied with on or prior to the date hereof.

Change of Control ” means an event or series of events by which:

(a) at any time prior to a Qualified IPO, the Sponsor shall cease to own, in the aggregate, directly or indirectly, beneficially and of record, in excess of 50% of the aggregate issued and outstanding Voting Equity Interests of Holdings; or

(b) at any time upon or after the consummation of a Qualified IPO, any “person” or “group” (within the meaning of Rules 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) other than Sponsor becomes the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under such Act), directly or indirectly, of Voting Equity Interests representing (x) more than 35% of the Voting Equity Interests of Holdings and (y) a greater percentage of Voting Equity Interests of Holdings than is then beneficially owned, directly or indirectly, in the aggregate by the Sponsor, unless, in the case of either clause (a) or (b) above, the Sponsor has, at such time, the right or the ability by percentage of Voting Equity Interest of Holdings owned, contract or otherwise to elect or designate for election at least a majority of the board of directors of Holdings; or

(c) Holdings shall fail to own (i) directly 100% of the issued and outstanding Equity Interests of J.A. Cosmetics (or any surviving entity of a merger with J.A. Cosmetics permitted under Section 7.04(b) (x) that has assumed all obligations of J.A. Cosmetics under the Loan Documents in accordance with Section 7.04(b) and (y) 100% of the issued and outstanding Equity Interests of which have been pledged by Holdings to Collateral Agent) or (ii) directly or indirectly, 100% of the issued and outstanding Equity Interests of the other Borrowers, except in this clause (ii) where such failure is the result of a transaction permitted under the Loan Documents provided that, with respect to any such transaction permitted under Section 7.04(b), 100% of the issued and outstanding Equity Interests of any surviving entity of such other Borrower shall have been pledged to Collateral Agent; or

(d) any “change of control” or similar event under the Senior Indebtedness Documents or other material Indebtedness.

Closing Date ” means January 31, 2014.

Closing Date Acquisition Documents ” means the Purchase Agreement and all other material documents executed between or among the Loan Parties and the Seller in connection with the Closing Date Acquisition.

Closing Date Acquisition ” means the acquisition provided for in the Purchase Agreement.

Code ” means the U.S. Internal Revenue Code of 1986, as amended from time to time, and any successor statute, and regulations promulgated thereunder.

 

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Collateral ” means, collectively, certain personal property of the Loan Parties or any other Person in which Collateral Agent or any Lender Party is granted a Lien under any Security Instrument as security for all or any portion of the Obligations or any other obligation arising under any Loan Document.

Collateral Agent ” means U.S. Bank, in its capacity as collateral agent under any of the Loan Documents, or any successor collateral agent.

Collateral Agent’s Office ” means Collateral Agent’s address and, as appropriate, account as set forth on Schedule 10.02 , or such other address or account as Collateral Agent may from time to time notify Borrower Agent and the Lenders.

Commitment ” means a Term Loan Commitment.

Committed Loan Notice ” means a notice of (a) a Borrowing or (b) a continuation of Eurodollar Rate Loans, which, if in writing, shall be substantially in the form of Exhibit A .

Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).

Competitor ” means any operating entity competing with the Borrowers or their Subsidiaries in the Borrowers’ and Subsidiaries’ operating businesses.

Compliance Certificate ” means a certificate substantially in the form of Exhibit D .

Consolidated ” means the consolidation, in accordance with GAAP, of the financial condition or operating results of such Person and its Subsidiaries.

Consolidated Interest Coverage Ratio ” has the meaning specified in the Compliance Certificate.

Consolidated Senior Net Debt ” has the meaning specified in the Compliance Certificate.

Consolidated Senior Net Leverage Ratio ” has the meaning specified in the Compliance Certificate.

Consolidated Total Net Funded Debt ” has the meaning specified in the Compliance Certificate.

Consolidated Total Net Leverage Ratio ” has the meaning specified in the Compliance Certificate.

Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, indenture, mortgage, deed of trust, contract or any other instrument or undertaking (other than a Loan Document) to which such Person is a party or by which it or any of its property is bound or to which any of its property is subject.

 

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Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.

Control Agreement ” means, with respect to any Deposit Account, any Securities Account, Commodity Account, securities entitlement or Commodity Contract, an agreement, in form and substance reasonably satisfactory to the Required Lenders, among Collateral Agent, the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and the Loan Party maintaining such account, effective to grant “control” (as defined under the applicable UCC governing such account) over such account to Collateral Agent.

Controlled Account Bank ” means each bank with whom Deposit Accounts are maintained in which any funds of any of the Loan Parties are maintained and with whom a Control Agreement has been, or is required to be, executed in accordance with the terms hereof.

Controlled Investment Affiliates ” means, as to any Person, any other Person that (a) directly or indirectly, is in Control of, is Controlled by, or is under common Control with, such Person and (b) is organized by such Person primarily for the purpose of making equity or debt investments in one or more companies.

Core Business ” means any material line of business conducted by the Borrowers and their Subsidiaries (after giving effect to the Closing Date Acquisition) as of the Closing Date and any business reasonably related, complementary, supplemental or ancillary thereto.

Credit Extension ” means a Borrowing.

Cure Amount ” has the meaning specified in Section 8.04 .

Cure Right ” has the meaning specified in Section 8.04 .

Debt Fund Affiliate ” means any Affiliate of the Sponsor (other than any natural person, Holdings, the Borrowers or any of their Affiliates): (i) that is primarily engaged in the making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit or debt securities in the ordinary course of business and (ii) with respect to which investment vehicles managed or advised by TPG Capital, L.P. that are not engaged primarily in making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit or debt securities in the ordinary course do not make investment decisions for such entity.

Debtor Relief Laws ” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

 

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Default ” means any event or condition that, with the giving of any notice, the passage of time, or both, would unless cured or waived be an Event of Default.

Default Rate ” means an interest rate equal to the rate of interest otherwise applicable hereunder plus 2% per annum, to the fullest extent permitted by applicable Laws.

Discounted Prepayment Option Notice ” has the meaning specified in Section 2.19(b) .

Discounted Voluntary Prepayment ” has the meaning specified in Section 2.19(a) .

Discounted Voluntary Prepayment Notice ” has the meaning specified in Section 2.19(f) .

Discount Range ” has the meaning specified in Section 2.19(b) .

Disposed EBITDA ” means, with respect to any Sold Entity or Business for any period, the amount of Adjusted Consolidated EBITDA of such Sold Entity or Business for such period, all as determined on a consolidated basis for such Sold Entity or Business.

Disposition ” or “ Dispose ” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property (including any Equity Interest), or part thereof, by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith; provided that “ Dispose ” shall not be deemed to include any issuance by Holdings of any of its Equity Interests.

Disqualified Equity Interest ” means any Equity Interest that (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control, initial public offering or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control, initial public offering or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) is convertible into or exchangeable for debt securities or other Indebtedness (unless only occurring at the sole option of the issuer thereof) that would constitute Disqualified Equity Interests or (d) provides for the scheduled payments of dividends in cash (other than in respect of taxes), in each case, prior to the date that is 91 days after the Term Loan Maturity Date; provided that if such Equity Interests are issued pursuant to a plan for the benefit of employees of Holdings or its Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by Holdings or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations as a result of such employee’s termination, death, invalidity or disability; provided , further , that if such Equity Interests are issued by (x) any direct or indirect Subsidiary of the Borrowers to a Loan Party or (y) any direct or indirect Subsidiary of the Borrowers that is not a Loan Party to any other direct or indirect Subsidiary of the Borrowers that is not a Loan Party, such Equity Interests shall not constitute Disqualified Equity Interests.

 

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Disqualified Institutions ” means (a) those banks, financial institutions and other institutional lenders and Persons (or related funds of such Persons), (b) any Competitor and (c) any Subsidiary or Affiliate (other than their financial investors that are not operating companies or Affiliates of operating companies and other than any Affiliate that is a bona fide diversified debt fund) of the foregoing, in the case of clauses (a), (b) and (c) above, identified in writing by the Borrowers or the Sponsor to PennantPark on December 23, 2013; provided , that upon reasonable notice to the Collateral Agent, the Borrowers shall be permitted to supplement in writing the list of Competitors that are Disqualified Lenders after the date hereof, but which supplement shall not apply to assignments and participations entered into prior to such supplement.

Dollar ” and “ $ ” mean lawful money of the United States.

Domestic Subsidiary ” means any Subsidiary that is organized under the laws of any state of the United States or the District of Columbia (but excluding any territory or possession thereof).

Environmental Laws ” means any and all applicable Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, licenses, legally-binding agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any Hazardous Materials into the environment, including those related to air emissions and other discharges of Hazardous Materials to waste or public systems.

Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of a Loan Party or any of its Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract or agreement to the extent liability is assumed or imposed with respect to any of the foregoing.

Equity Interests ” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in, including partnership, member or trust interests) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, and all of the other ownership or profit interests in such Person.

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto.

ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control with any Loan Party or a Subsidiary thereof within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Sections 412 and 430 through 436 of the Code and Section 302 through 305 and 4007 of ERISA).

 

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ERISA Event means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of any Loan Party, a Subsidiary thereof or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan Party, a Subsidiary thereof or any ERISA Affiliate from a Multiemployer Plan or receipt by any Loan Party, a Subsidiary thereof or any ERISA Affiliate of notification that a Multiemployer Plan is in reorganization or that any Multiemployer Plan is insolvent or being terminated; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination, each under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan or Multiemployer Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party, a Subsidiary thereof or any ERISA Affiliate; or (i) any failure by any Pension Plan to satisfy the minimum funding standards (within the meaning of Sections 412 or 430 of the Code or Section 302 of ERISA) applicable to such Pension Plan, whether or not waived.

Eurodollar Rate ” means for any Interest Period with respect to a Eurodollar Rate Loan, a rate per annum determined by Collateral Agent pursuant to the following formula:

 

   Eurodollar Base Rate        
Eurodollar Rate =       

 

   1.00 –Reserve Percentage

provided herein the Eurodollar Rate shall not be less than 1.00% per annum.

Eurodollar Base Rate ” means, for such Interest Period, the offered rate per annum for deposits of Dollars for the applicable Interest Period that appears on Reuters Screen LIBOR01 Page as of 11:00 A.M. (London, England time) two London Banking Days prior to the first day in such Interest Period; provided that if such rate is not available at such time for any reason, then the “Eurodollar Base Rate” for such Interest Period shall be the rate per annum determined by Collateral Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in immediately available funds in the approximate amount of the Eurodollar Rate Loan being made or continued and with a term equivalent to such Interest Period would be offered by such other authoritative source (as is selected by Collateral Agent in its sole reasonable discretion) to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London, England time) two London Banking Days prior to the commencement of such Interest Period.

Eurodollar Reserve Percentage ” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding. The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.

 

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Eurodollar Rate Loan ” means a Loan (or segment of a Loan) that bears interest at a rate based on the Eurodollar Rate.

Event of Default ” has the meaning specified in Section 8.01 .

Event of Loss ” means, with respect to any property, any of the following: (a) any loss, destruction or damage of such property or (b) any condemnation, seizure, or taking, by exercise of the power of eminent domain or otherwise, of such property by any Governmental Authority, or confiscation of such property or the requisition of the use of such property by any Governmental Authority.

Exchange Act ” means the Securities Exchange Act of 1934.

Excess Cash Flow ” has the meaning specified in the Excess Cash Flow Certificate.

Excess Cash Flow Certificate ” means a certificate substantially in the form of Exhibit E .

Excluded Domestic Holdco ” means a Domestic Subsidiary the primary assets of which are the Equity Interests of one or more Foreign Subsidiaries and, if applicable, Indebtedness of such Foreign Subsidiaries.

Excluded Domestic Subsidiary ” means any Domestic Subsidiary that is a direct or indirect Subsidiary of (a) a Foreign Subsidiary or (b) an Excluded Domestic Holdco.

Excluded Subsidiary ” means any Subsidiary of the Borrowers (a) that is a Foreign Subsidiary, an Excluded Domestic Subsidiary or an Excluded Domestic Holdco, (b) that is a captive insurance company, (c) that is a not-for-profit Subsidiary, (d) that is a special purpose entity, (e) that is prohibited or restricted by contracts with a Person who is not an Affiliate of a Borrower, applicable law (including any requirement to obtain governmental authority or third party consent (unless such consent has been received)), rule or regulation from providing a guaranty (but only so long as such prohibition or restriction is in effect) and (f) to the extent the Required Lenders and Borrowers mutually determine the cost and/or burden of obtaining the guaranty from such Subsidiary outweigh the benefits to the Lenders.

Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated) and franchise Taxes, in each case, imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof), and any other Taxes imposed by an jurisdiction as a result of a present or former connection of such Recipient with such jurisdiction (other than any such connection arising solely from such Recipient having executed, enforced, delivered, performed its obligations, becomes a party to or received any payment under this

 

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Agreement or any other Loan Document), (b) branch profit Taxes imposed by the United States or any similar tax imposed by any other Governmental Authority, (c) U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Recipient pursuant to a law in effect on the date on which such Recipient (i) becomes a party to this Agreement (other than pursuant to an assignment request by Borrower Agent under Section 10.13 ) or (ii) in the case of a Lender, changes its Lending Office, except in each case, in the case of a Lender, to the extent that, pursuant to Section 3.01 amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (d) United States federal withholding Taxes (including backup withholding taxes) that would not have been imposed but for such Recipient’s failure to comply with Section 3.01(e) (except where the failure to comply with Section 3.01(e) was the result of a change in law, ruling, regulation, treaty, directive, or interpretation thereof by a Governmental Authority after the date the Recipient became a party to this Agreement or a Participant, and (e) any U.S. federal withholding Taxes imposed under FATCA.

Executive Order ” has the meaning specified in Section 5.15 .

Extending Lender ” is defined in Section 10.01 .

Extension Agreement ” means an extension agreement, in a form reasonably satisfactory to the Required Lenders, among Holdings, the Borrowers and one or more Extending Lenders, effecting one or more Extension Permitted Amendments and such other amendments hereto and to the other Loan Documents as are contemplated by Section 10.01 .

Extension Offer ” is defined in Section 10.01 .

Extension Permitted Amendment ” means an amendment to this Agreement and the other Loan Documents, effected in connection with an Extension Offer pursuant to Section 10.01 , providing for an extension of the Term Loan Maturity Date applicable to the Extending Lenders’ Loans of the applicable Extension Request Class (such Loans being referred to as the “ Extended Loans ”) and, in connection therewith, may also provide for (a) an increase in the rate of interest accruing on such Extended Loans, (b) a modification of the scheduled amortization applicable thereto (it being understood that the Term Loans made on the Closing Date do not amortize), provided that the Weighted Average Life to Maturity of such Extended Loans shall be no less than the remaining Weighted Average Life to Maturity (determined at the time of such Extension Offer) of the Term Loans, (c) a modification of voluntary or mandatory prepayments applicable thereto (including amortization payments, if any), provided that voluntary and mandatory prepayments (including amortization payments, if any) applicable to any other Loans shall not be affected by the terms thereof, (c) an increase in the fees payable to, or the inclusion of new fees to be payable to, the Extending Lenders in respect of such Extension Offer or their Extended Loans, and/or (d) different covenants and other provisions that apply only to periods after the then latest maturity date.

Extension Request Class ” is defined in Section 10.01 .

FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not

 

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materially more onerous to comply with) and, any current or future regulations or official interpretations thereof, any applicable agreement entered into pursuant to Section 1471(b)(1) of the Code, and any applicable intergovernmental agreement with respect thereto.

Facility Termination Date ” means the date as of which Payment in Full of all Obligations has occurred.

FDA ” means the Federal Food and Drug Administration and any successor thereto.

Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to U.S. Bank on such day on such transactions as reasonably determined by Collateral Agent.

Fee Letter ” means the letter agreement, dated as of December 29, 2013 between Initial Borrower and PennantPark.

Fiscal Quarter ” means each fiscal quarter of the Borrowers and their Subsidiaries ending on March 31, June 30, September 30 and December 31 of each year.

Fiscal Year ” means each twelve month period of the Borrowers and their Subsidiaries, ending on December 31 of each year.

Foreign Assets Control Regulations ” has the meaning specified in Section 5.15 .

Foreign Lender ” means a Recipient that is not a U.S. Person.

Foreign Subsidiary ” means any Subsidiary that is not a Domestic Subsidiary.

Fraudulent Conveyance ” has the meaning specified in Section 11.09 .

FRB ” means the Board of Governors of the Federal Reserve System of the United States.

Fund ” means any Person (other than a natural Person) that is primarily engaged in making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit or debt securities in the ordinary course of its activities.

GAAP ” means generally accepted accounting principles as in effect from time to time in the United States, consistently applied, subject to Sections 1.03(b) and 1.03(c) below.

 

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Governmental Authority ” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

Granting Lender ” is defined in Section 10.06 .

Guarantee ” means, as to any Person, any (a) obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith; provided , that with respect to clause (b) of the preceding sentence, if the subject Indebtedness or other obligation is non-recourse, then the amount of such Guarantee shall be deemed to be the lower of the amount of such Guarantee determined pursuant to the foregoing terms of this sentence or the fair market value of the property subject to such Lien. The term “Guarantee” as a verb has a corresponding meaning.

Guarantor ” means Holdings (from and after the joinder of J.A. Cosmetics and certain of its Domestic Subsidiaries as “Borrowers” hereunder), each Subsidiary Guarantor and each other Person that becomes a guarantor of all or part of the Obligations after the Closing Date pursuant to Section 6.12 of the Agreement or otherwise.

Hazardous Materials ” means all substances or wastes listed, defined or regulated pursuant to any Environmental Law as explosive, radioactive, hazardous, toxic or as pollutants and petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law due to their hazardous, toxic, dangerous or deleterious properties or characteristics.

Holdings ” has the meaning specified in the introductory paragraph hereto.

 

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Indebtedness ” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a) all obligations of such Person for borrowed money and all obligations (direct or contingent) of such Person evidenced by or arising under bonds (including, without limitation, surety, customs, reclamation or performance bonds), debentures, notes, loan agreements or other similar instruments;

(b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guarantees and similar instruments;

(c) net obligations of such Person under any Swap Contract;

(d) (i) all obligations of such Person to pay the deferred purchase price of property or services (other than (x) accrued expenses and trade payables incurred in the Ordinary Course of Business, (y) any working capital adjustment or any earnout obligation, deferred compensation, non-compete or similar obligations under employment agreements of such Person and (z) obligations with respect to seller notes), in each case, to the extent due and payable and (ii) all obligations of such Person with respect to seller notes;

(e) indebtedness secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

(f) obligations under Capital Leases and synthetic or other similar financing leases of such Person;

(g) all obligations of such Person with respect to the redemption, repayment or other repurchase or payment in respect of any Disqualified Equity Interest; and

(h) all Guarantees of such Person in respect of any of the foregoing.

For all purposes hereof, the Indebtedness of any Person shall (A) include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, to the extent such Indebtedness is recourse to such Person and only to the extent such Indebtedness would be included in the calculation of Consolidated Total Net Debt and (B) in the case of the Borrowers and their Subsidiaries, exclude all intercompany Indebtedness incurred in the Ordinary Course of Business consistent with past practice (other than for purposes of Section 7.01 hereunder). The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any Capital Lease or synthetic or other similar financing lease as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. The amount of any Indebtedness described in clause (e) above shall be limited to the lesser of the fair market value of any property securing such indebtedness as determined by such Person in good faith and (ii) the aggregate unpaid amount of such Indebtedness.

 

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Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

Indemnitees ” has the meaning specified in Section 10.04(b) .

Information ” has the meaning specified in Section 10.07 .

Initial Borrower ” has the meaning specified in the introductory paragraph hereto.

Intellectual Property ” means all rights, title and interest in intellectual property arising under applicable law, including: trade secrets, trademarks, internet domain names, service marks, trade dress, trade names, brand names, business names, designs, logos, slogans (and all translations, adaptations, derivations and combinations of the foregoing) and other source and/or business identifiers, and the goodwill of the business relating thereto and all registrations or applications for registrations which have heretofore been or may hereafter be issued thereon throughout the world; copyrights (including copyrights for computer programs) and copyright registrations or applications for registrations which have heretofore been or may hereafter be issued throughout the world; patent applications and patents; and industrial design applications and registered industrial designs.

Intercreditor Agreement ” means that certain subordination agreement among Collateral Agent, as agent for the Lenders, Bank of Montreal, as agent for the holders of Senior Indebtedness, and the Loan Parties dated as of the date hereof and in form and substance reasonably acceptable to the Required Lenders.

Interest Payment Date ” means, (a) as to any Eurodollar Rate Loan, (i) the last day of each Interest Period applicable to such Eurodollar Rate Loan, (ii) with respect to the portion prepaid, any date that a Term Loan is prepaid, in whole or in part, and (iii) the Maturity Date with respect to such Loan and (b) if Section 3.02 or 3.03 applies, as to any Base Rate Loan, (i) the last day of each Fiscal Quarter with respect to interest accrued through (and including) the last day of such Fiscal Quarter, (ii) with respect to the portion prepaid, any date that a Term Loan is prepaid, in whole or in part, and (iii) the Maturity Date with respect to such Loan; provided , that interest accruing at the Default Rate shall be payable from time to time upon written demand of Collateral Agent or Required Lenders.

Interest Period ” means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or continued as a Eurodollar Rate Loan and ending, in each case, on the date three months thereafter; provided that:

(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

 

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(b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

(c) no Interest Period shall extend beyond the Maturity Date for the Term Loan to which such Interest Period applies.

Investment ” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the ownership, purchase or other acquisition of Equity Interests or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person (excluding loans or advances made in the Ordinary Course of Business (including travel advances and other similar cash advances) to employees and officers), or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, less all returns of principal or equity thereon (and without adjustment by reason of the financial condition of such other Person) and shall, if made by the transfer or exchange of property other than cash, be deemed to have been made in an original principal or capital amount equal to the fair market value of such property at the time of such transfer or exchange.

J.A. Cosmetics ” means J.A. Cosmetics US, Inc., a Delaware corporation.

Joinder Agreement ” means a joinder agreement in the form attached hereto as Exhibit H or in a writing in any other form reasonably acceptable to the Required Lenders duly completed executed by a Person joining this Agreement as a Borrower or Guarantor, as the case may be.

Laws ” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

Lender ” has the meaning specified in the preamble hereto.

Lender Participation Notice ” has the meaning specified in Section 2.19(c) .

Lender Party ” means (a) each Lender, (b) Collateral Agent and (c) the successors and permitted assigns of each of the foregoing.

 

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Lending Office ” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify Borrower Agent and Collateral Agent in writing.

License ” means any license or agreement under which a Loan Party is granted any license right in or to Intellectual Property.

Lien ” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).

Loan ” means an extension of credit under Article II in the form of a Term Loan.

Loan Account ” has the meaning specified in Section 2.11(a) .

Loan Documents ” means this Agreement, each Note, each Security Instrument, the Intercreditor Agreement, and the perfection certificate delivered on the Closing Date.

Loan Parties ” means Borrowers, Holdings and the Subsidiary Guarantors, collectively.

London Banking Day ” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

Management Agreement ” means that certain Management Services Agreement dated as of January 31, 2014 among the Initial Borrower, J.A. Cosmetics and TPG Growth II Management, LLC.

Material Adverse Effect ” means (a) as of the Closing Date, a Material Adverse Effect (as defined in the Purchase Agreement) and (b) thereafter (i) a material adverse change in, or a material adverse effect on, the operation, business, assets, properties or financial condition of the Loan Parties taken as a whole, (ii) a material impairment of the ability of the Loan Parties taken as a whole to perform their payment obligations under the Loan Documents or (iii) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party (other than to the extent a result of the action or inaction of the Collateral Agent, the Lenders, the other Lender Parties under the Loan Documents or their respective Affiliates, officers, employees, agents, attorneys or representatives).

Material License ” has the meaning specified in Section 6.05(d) .

Maturity Date ” means the Term Loan Maturity Date.

Maximum Rate ” has the meaning specified in Section 10.09 .

 

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Measurement Period ” means, at any date of determination, the most recently completed consecutive four Fiscal Quarters of Holdings and its Subsidiaries for which financial statements have or should have been delivered in accordance with Section 6.01(b) .

Minority Investment ” means any Person (including any joint ventures, limited liability companies or partnerships) other than a Subsidiary in which the Borrowers or any Subsidiary owns any Equity Interests.

Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.

Mortgaged Property ” means the Real Estate of the Loan Parties required from time to time to be subject to a Mortgage pursuant to the terms of the Loan Documents.

Mortgages ” means the mortgages, deeds of trust, or deeds to secure debt executed by a Loan Party on or about the Closing Date, or from time to time thereafter in favor of Collateral Agent, for the benefit of the Lender Parties, by which such Loan Party has granted to Collateral Agent, as security for the Obligations, a Lien upon the Mortgaged Property described therein.

Multiemployer Plan ” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Loan Party makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions or with respect to which any Loan Party has any current or contingent liability as a result of being considered a single employer with any ERISA Affiliate.

Net Cash Proceeds ” means (a) with respect to the Disposition of any asset by the Borrower or any Subsidiary or any Event of Loss, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such Disposition or Event of Loss (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received and, with respect to any Event of Loss, any insurance proceeds or condemnation awards in respect of such Event of Loss actually received by or paid to or for the account of the Borrowers or any Subsidiary but excluding, in any event, any cash and Cash Equivalents received solely as proceeds of business interruption insurance) over (ii) the sum of (A) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness that is secured by the asset subject to such Disposition or Event of Loss and that is required to be repaid in connection with such Disposition or Event of Loss, (B) the out-of-pocket fees and expenses (including attorneys’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees and, with respect to any Event of Loss, costs incurred in connection with the collection of such proceeds, awards or other payments or any settlement of claims with respect thereto) actually incurred by the Borrowers or such Subsidiary in connection with such Disposition or Event of Loss, (C) taxes paid or reasonably estimated to be actually payable in connection therewith, or upon the distribution to a Loan Party of such proceeds from such Disposition or Event of Loss, and (D) any reserve for adjustment in respect of (x) the sale price of such asset or assets established in accordance with GAAP and (y) any liabilities associated with such asset or assets and retained by the Borrowers or any Subsidiary

 

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after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or with respect to any indemnification obligations associated with such transaction, and it being understood that “Net Cash Proceeds” shall include (i) any cash or Cash Equivalents received upon the Disposition of any non-cash consideration by the Borrowers or any Subsidiary in any such Disposition and (ii) upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in clause (D) above or if such liabilities have not been satisfied in cash and such reserve is not reversed within 365 days after such Disposition or Event of Loss, the amount of such reserve; and (b) with respect to the incurrence or issuance of any Indebtedness by the Borrowers or any Subsidiary, the excess, if any, of (x) the sum of the cash received in connection with such incurrence or issuance over (y) the sum of (A) the reasonable investment banking fees, underwriting discounts, commissions, costs and other out-of-pocket expenses and other reasonable and customary expenses, incurred by the Borrowers or such Subsidiary in connection with such incurrence or issuance and (B) taxes paid or reasonably estimated to be actually payable in connection therewith, or upon the distribution to a Loan Party of proceeds from such incurrence or issuance.

Non-Consenting Lender ” has the meaning specified in Section 10.01 .

Non-Debt Fund Affiliate ” means any Affiliate of the Sponsor other than Holdings or any of its Subsidiaries, any Debt Fund Affiliate and any natural person.

Note ” means the Term Loan Notes.

Obligations ” means all amounts owing by any Loan Party to Collateral Agent, any Lender or any other Lender Party pursuant to or in connection with this Agreement or any other Loan Document or otherwise with respect to any Loan, including without limitation, all principal, interest (including any interest accruing after the filing of any petition in bankruptcy or the commencement of any proceeding under any Debtor Relief Law relating to any Loan Party, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), all reimbursement obligations, fees, expenses, indemnification and reimbursement payments, costs and expenses (including all fees and expenses of counsel to Collateral Agent incurred and payable by the Loan Parties pursuant to this Agreement or any other Loan Document), whether direct or indirect, absolute or contingent, liquidated or unliquidated, now existing or hereafter arising hereunder or thereunder, together with all renewals, extensions, modifications or refinancings thereof.

OFAC ” has the meaning specified in Section 5.15 .

Offered Loans ” has the meaning specified in Section 2.19(c) .

Ordinary Course of Business ” means the ordinary course of business of the Borrowers and their Subsidiaries and undertaken in good faith.

Organization Documents ” means, as applicable with respect to any Person, its certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); its certificate or articles of formation or organization and operating agreement; or its partnership, joint venture or other applicable

 

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agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization.

Other Subordinated Indebtedness ” has the meaning specified in Section 7.01(v) .

Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, excluding for the avoidance of doubt, Excluded Taxes.

Outstanding Amount ” means, as applicable, the aggregate outstanding principal amount of Term Loans on any date after giving effect to any Borrowings, prepayments or repayments thereof occurring on such date.

Outstanding Items ” has the meaning specified in Section 6.18 .

Overnight Rate ” means, for any day, with respect to any amount denominated in Dollars, the greater of (a) the Federal Funds Rate and (b) an overnight rate determined by Collateral Agent in accordance with banking industry rules on interbank compensation.

Participant ” has the meaning specified in clause (d) of Section 10.06 .

Participation Register ” has the meaning specified in clause (d) of Section 10.06 .

Payment in Full ” or “ Payment in Full of the Obligations ” means the payment in full in cash of all Obligations (other than contingent indemnification claims for which no claim has been asserted), together with all accrued and unpaid interest and fees thereon. “ Paid in Full ,” “ paid in full ,” “ payment in full ,” and “ payment in full of the Obligations ” have meanings correlative thereto.

PBGC ” means the Pension Benefit Guaranty Corporation or any successor thereto.

PennantPark ” means PennantPark Investment Corporation.

Pension Act ” means the Pension Protection Act of 2006.

Pension Funding Rules ” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and Multiemployer Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA, and any sections of the Code or ERISA related thereto that are enacted after the date of this Agreement.

 

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Pension Plan ” means any employee pension benefit plan (other than a Foreign Plan or Multiemployer Plan) that is maintained or is contributed to by any Loan Party, or with respect to which any Loan Party has any current or contingent liability as a result of being considered a single employer with any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.

Permitted Acquisition ” means any Acquisition by a Borrower or a Subsidiary of a Borrower, including in the case of any Permitted Foreign Acquisition, any Foreign Subsidiary, (i) that has been approved by the Required Lenders or (ii) so long as all of the following conditions have been satisfied:

(a) such Acquisition shall be structured as (1) an asset acquisition by such Borrower or Subsidiary, as applicable, of all or substantially all of the assets of the Person whose assets are being acquired (or all or substantially all of a line or lines of business of such Person), (2) a merger of the Person to be acquired with and into such Borrower or Subsidiary, as applicable, with such Borrower or Subsidiary, as applicable, as the surviving corporation in such merger, unless the surviving entity has otherwise assumed all obligations of such Borrower or Subsidiary, as applicable, under the Loan Documents pursuant to documentation reasonably acceptable to the Required Lenders or (3) a purchase of (x) any remaining Equity Interests in a Minority Investment, (y) any remaining Equity Interest of a Subsidiary of Holdings that is not a wholly-owned Subsidiary or (z) no less than a majority of the Equity Interests of the Person to be acquired by such Loan Party;

(b) the Person to be (or whose assets are to be) acquired does not oppose such Acquisition (unless otherwise agreed by the Required Lenders), such Acquisition shall be consummated in accordance with the terms of the agreements and documents related thereto and the line or lines of business of the Person to be acquired constitute Core Businesses;

(c) (i) no Event of Default under Section 8.01(a) or 8.01(f) shall have occurred and be continuing either immediately prior to or immediately after giving effect to such Acquisition and (ii) no Specified Event of Default shall have occurred and be continuing as of the date the acquisition agreement for such Acquisition is entered into and effective;

(d) to the extent such Acquisition involves a Permitted Foreign Acquisition, after giving effect to such Permitted Foreign Acquisition, the Loan Parties shall be in compliance with the applicable provisions in Section 7.03 governing Investments to Foreign Subsidiaries;

(e) after giving pro forma effect to such Acquisition (including the payment of cash and other property given as consideration, any Indebtedness incurred, assumed or acquired by any Borrower or Subsidiary, as applicable, in connection with such Acquisition and all fees expenses and transaction costs incurred in connection therewith), (i) the Loan Parties shall be in compliance on a Pro Forma Basis with the covenants set forth in Section 7.12(a) and (b) for the Fiscal Quarter most recently ended as to which financial statements were required to be delivered pursuant to this Agreement, (ii) the Loan Parties shall have on a Pro Forma Basis a Consolidated Senior Net Leverage Ratio of not greater than 4.20:1.00 for the Fiscal Quarter most recently ended as to which financial statements were required to be delivered pursuant to this Agreement and (iii) the Loan Parties shall have on a Pro Forma Basis a Consolidated Total Net

 

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Leverage Ratio of not greater than 5.81:1.00 for the Fiscal Quarter most recently ended as to which financial statements were required to be delivered pursuant to this Agreement, unless the Consolidated Total Net Leverage Ratio would not, directly or indirectly, increase immediately after consummation of such Acquisition;

(f) Borrower Agent shall have furnished Collateral Agent (i) two (2) Business Days’ (or such shorter period as may be agreed by Collateral Agent) prior to the consummation of such intended Acquisition, a current draft of the acquisition agreement (together with exhibits and schedules thereto and, to the extent required in the acquisition agreement, all required regulatory and third party approvals and copies of environmental assessments, if any) for such intended Acquisition (and final copies thereof as and when executed) and (ii) with respect to any intended Acquisition in which the Permitted Acquisition Consideration exceeds $5,750,000, (w) a description of the proposed Acquisition, (x) pro forma consolidated projections with respect to the intended Acquisition, (y) historical financial statements for the target of the intended Acquisition and (z) such other customary information or documentation regarding the intended Acquisition as Collateral Agent or the Lenders may reasonably request, including, to the extent available, a due diligence package;

(g) Borrower Agent shall have furnished to Collateral Agent at least two (2) Business Days (or such shorter period as may be agreed by Collateral Agent) prior to the date on which any such Acquisition is to be consummated or such shorter time as Collateral Agent may allow, a certificate of a Responsible Officer of Borrower Agent with a reasonably detailed calculation of item (e)(i), (ii) and (iii) above;

(h) to the extent obtained by the Loan Parties or their Affiliates, a quality of earnings report with respect to the target of such Acquisition;

(i) the Permitted Acquisition Consideration for such Acquisition does not exceed $48,875,000 (or $11,500,000 in the case of Permitted Foreign Acquisitions) plus the Available Amount when aggregated with all other Acquisitions consummated during the term of this Agreement; provided , that the limitation provided in this clause (i) shall not apply (a) with respect to that portion of the consideration in the form of Equity Interests of Holdings (or any parent entity thereof) that are not Disqualified Equity Interests and (b) to the extent such Acquisition is financed with the Net Cash Proceeds of issuances by Holdings (or any parent entity thereof) of, or capital contributions to, its Equity Interests that are not Disqualified Equity Interests, Permitted Cure Securities or cash common equity contributions in connection with an Equity Cure pursuant to Section 8.04 (other than issuances of, or contributions to, Equity Interests that are included in the calculation of the Available Amount or the Net Cash Proceeds of which are used to make Restricted Payments under Section 7.06(i)) and solely to the extent the Net Cash Proceeds of such issuances or contributions are contributed by Holdings to a Borrower as cash common equity; and

(j) such Permitted Acquisition shall involve assets, except with respect to a Permitted Foreign Acquisition, principally located in the United States (and, in connection with the acquisition of the Equity Interests of a Person being acquired, such Person shall be organized under the laws of a state within the United States) (any Acquisition that satisfies all of the conditions to satisfy a Permitted Acquisition, other than this clause (j) is referred to herein as a “ Permitted Foreign Acquisition ”).

 

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Permitted Acquisition Consideration ” means the purchase consideration for a Permitted Acquisition and all other payments (but excluding any related acquisition fees, costs and expenses incurred in connection with any Permitted Acquisition), directly or indirectly, by Borrowers or any Subsidiary in exchange for, or as part of, or in connection with, a Permitted Acquisition, whether paid in cash or by exchange of Equity Interests or of any property or incurrence or assumption of Indebtedness or otherwise and whether payable at or prior to the consummation of a Permitted Acquisition or deferred for payment at any future time (including earnouts, seller notes and other deferred purchase price obligations); provided , that any such future payment that is an earnout or other deferred purchase price obligation shall be included in the determination of Permitted Acquisition Consideration as the maximum amount of such earnout or other deferred purchase price obligation; provided , further , that Permitted Acquisition Consideration shall not include (a) the portion of consideration or payment constituting salary payments pursuant to ordinary course employment agreements and salary bonuses payable thereunder to the extent relating to the applicable Permitted Acquisition and (b) the portion of consideration or payment attributable to cash and Cash Equivalents constituting working capital acquired by Borrowers or their Subsidiaries as part of the applicable Permitted Acquisition in excess of the working capital target set forth in the purchase agreement for such Permitted Acquisition.

Permitted Cure Security ” means an Equity Interest other than a Disqualified Equity Interest or other capital consideration, the proceeds of which are utilized in connection with a Cure Right pursuant to Section 8.04 .

Permitted Liens ” has the meaning specified in Section 7.02 .

Permitted Refinancing ” means, with respect to any Person, any modification (other than a release of such Person), refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, and as otherwise permitted under Section 7.01 , (b) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 7.01(a) , such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 7.01(e) , at the time thereof, no Event of Default shall have occurred and be continuing, (d) such modified, refinanced, refunded, renewed or extended Indebtedness shall only be guaranteed by Holdings and/or the Subsidiaries of the Borrowers that are otherwise or are required to be guarantors of the Indebtedness being modified, refinanced, refunded, renewed or extended or that are otherwise or are required to be guarantors of the

 

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Indebtedness under the Senior Indebtedness Documents, in each case, at the time of such modification, refinancing, refund, renewal or extension of Indebtedness occurs, and any other Subsidiaries that are acquired in connection with such refinancing, (e) such modified, refinanced, refunded, renewed or extended Indebtedness shall not be secured by any property or assets other than the property or assets that were or are required to be collateral (and then only with the same priority) for the Indebtedness being modified, refinanced, refunded, renewed or extended at the time of such modification, refinancing, refunding, renewal or extension, and (f) if such Indebtedness being modified, refinanced, refunded, renewed or extended is Indebtedness permitted pursuant to Section 7.01(b) or (l) , to the extent such Indebtedness being so modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being so modified, refinanced, refunded, renewed or extended or otherwise at least as favorable to the Lenders as those contained in the Indebtedness under the Senior Indebtedness Documents (including the Intercreditor Agreement); provided that a certificate of a Responsible Officer delivered to the Collateral Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower Agent has determined in good faith that such terms and conditions satisfy the foregoing requirement (which determination shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement.

Permitted Sale Leaseback ” means any Sale Leaseback consummated by a Borrower or any of its Subsidiaries after the Closing Date; provided that any such Sale Leaseback not between (a) a Loan Party and another Loan Party or (b) a Subsidiary that is not a Loan Party and another Subsidiary that is not a Loan Party must be, in each case, consummated for fair value as determined at the time of consummation in good faith by (i) such Borrower or such Subsidiary and (ii) in the case of any Sale Leaseback (or series of related Sales Leasebacks) the aggregate proceeds of which exceed $3,450,000, the board of directors (or equivalent governing body) of such Borrower or such Subsidiary (which such determination may take into account any retained interest or other Investment of such Borrower or such Subsidiary in connection with, and any other material economic terms of, such Sale Leaseback).

Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

Plan ” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan, but other than a Multiemployer Plan and other than a Foreign Plan), maintained for employees of any Loan Party or any such plan to which any Loan Party is required to contribute (including any Pension Plan which any ERISA Affiliate maintains, or is required to contribute to) on behalf of any of its employees.

Post-Acquisition Period ” means, with respect to any Permitted Acquisition, the period beginning on the date such Permitted Acquisition is consummated and ending on the last day of the fourth full consecutive Fiscal Quarter immediately following the date on which such Permitted Acquisition is consummated.

 

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Pro Forma Adjustment ” means, for any Measurement Period that includes all or any part of a Fiscal Quarter included in any Post-Acquisition Period, with respect to the Acquired EBITDA of the applicable Acquired Entity or Business or the Adjusted Consolidated EBITDA of the Loan Parties and their Subsidiaries, (a) the pro forma increase or decrease in such Acquired EBITDA or such Adjusted Consolidated EBITDA, as the case may be, that is factually supportable and is expected to have a continuing impact, and (b) additional good faith pro forma adjustments arising out of cost savings initiatives attributable to such transaction and additional costs associated with the combination of the operations of such Acquired Entity or Business with the operations of the Borrowers and their Subsidiaries, in each case being given pro forma effect that (i) have been realized or (ii) will be implemented following such transaction and are supportable and quantifiable (as determined by the chief financial officer of the Borrower Agent) and expected to be realized within the succeeding 12 months and, in each case, including, but not limited to, (w) reduction in personnel expenses, (x) reduction of costs related to administrative functions, (y) reductions of costs related to leased or owned properties and (z) reductions from the consolidation of operations and streamlining of corporate overhead) taking into account, for purposes of determining such compliance, the historical financial statements of the Acquired Entity or Business and the consolidated financial statements of the Borrowers and their Subsidiaries, assuming such Permitted Acquisition or Disposition, and all other Permitted Acquisitions or Dispositions that have been consummated during the period, and any Indebtedness or other liabilities repaid in connection therewith had been consummated and incurred or repaid at the beginning of such period (and assuming that such Indebtedness to be incurred bears interest during any portion of the applicable measurement period prior to the relevant acquisition at the interest rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination); provided that, so long as such actions are initiated during such Post-Acquisition Period or such costs are incurred during such Post-Acquisition Period, as applicable, for purposes of projecting such pro forma increase or decrease to such Acquired EBITDA or such Adjusted Consolidated EBITDA, as the case may be, it may be assumed that such cost savings will be realizable during the entirety of such Measurement Period, or such additional costs, as applicable, will be incurred during the entirety of such Measurement Period; provided , further , that any increase in Acquired EBITDA or Adjusted Consolidated EBITDA, as the case may be, as a result of such Pro Forma Adjustments shall not, together with all increases in Adjusted Consolidated EBITDA pursuant to Restructuring Charges, Business Optimization Expenses and Reserves (as defined in the Compliance Certificate) and Cost Savings and Synergies (as defined in the Compliance Certificate), exceed 20% (or such greater amount approved by the Required Lenders) of Adjusted Consolidated EBITDA on a Pro Forma Basis calculated after giving effect to such adjustments and the adjustments resulting from Restructuring Charges, Business Optimization Expenses and Reserves and Costs Savings and Synergies in the aggregate in any Measurement Period.

Pro Forma Basis ” and “ Pro Forma Effect ” mean, with respect to compliance with any test hereunder for an applicable period of measurement, that (A) to the extent applicable, the Pro Forma Adjustment shall have been made and (B) all Specified Transactions and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement (as of the last date in the case of a balance sheet item) in such test: (a) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Transaction, (i) in the case of a Disposition of all or substantially all Equity Interests in any Subsidiary of the Borrowers or any division, product

 

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line, or facility used for operations of the Borrowers or any of their Subsidiaries which represents a contribution to Adjusted Consolidated EBITDA in excess of $500,000, shall be excluded, and (ii) in the case of a Permitted Acquisition or Investment described in the definition of “Specified Transaction”, shall be included, (b) any retirement of Indebtedness, and (c) any Indebtedness incurred or assumed by a Borrower or any of its Subsidiaries in connection therewith and if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination; provided that, without limiting the application of the Pro Forma Adjustment pursuant to (A) above, the foregoing pro forma adjustments may be applied to any such test solely to the extent that such adjustments are consistent with the definition of Adjusted Consolidated EBITDA and give effect to events (including operating expense reductions) that are (as determined by the Borrower Agent in good faith) (i) (x) directly attributable to such transaction, (y) expected to have a continuing impact on the Borrowers and their Subsidiaries and (z) factually supportable or (ii) otherwise consistent with the definition of Pro Forma Adjustment.

Properly Contested ” means with respect to any obligation of a Loan Party or any Subsidiary of a Loan Party, (a) the obligation is being properly contested in good faith by appropriate proceedings; and (b) appropriate reserves have been established in accordance with GAAP.

Proposed Discounted Prepayment Amount ” has the meaning specified in Section 2.19(b) .

Purchase Agreement ” means that certain Stock Purchase Agreement dated as of December 29, 2013, between the Initial Borrower, the Target and the Sellers (as defined therein) pursuant to which the Initial Borrower will acquire all of the Equity Interests of Target owned by the Sellers on the Closing Date.

Qualified Equity Interests ” means any Equity Interests that are not Disqualified Equity Interests.

Qualified IPO means a bona fide underwritten sale to the public of common stock of Holdings or any other direct or indirect parent company of the Borrowers pursuant to a registration statement (other than on Form S-8 or any other form relating to securities issuable under any benefit plan of Holdings or any other direct or indirect parent company of the Borrowers) that is declared effective by the SEC.

Qualifying Loans ” has the meaning specified in Section 2.19(e) .

Qualifying Lenders ” has the meaning specified in Section 2.19(e) .

Real Estate ” means all land, together with the buildings, structures, parking areas, and other improvements thereon, now or hereafter owned by any Loan Party, including all easements, rights-of-way, and similar rights appurtenant thereto and all leases, tenancies, and occupancies thereof.

 

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Recipient ” means (a) Collateral Agent or (b) any Lender.

Register ” has the meaning specified in Section 10.06(c) .

Related Parties ” means, with respect to any Person, such Person’s Affiliates and the directors, officers, employees, agents and controlling Persons of such Person and of such Person’s Affiliates.

Reportable Event ” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.

Request for Credit Extension ” means with respect to a Borrowing or continuation of Loans, a Committed Loan Notice.

Required Lenders ” means, as of any date of determination, Lenders holding more than 50% of the sum of (a) Total Outstandings and (b) aggregate unused Commitments.

Responsible Officer ” means, with respect to each Loan Party, the chief executive officer, president, chief financial officer, treasurer or controller of such Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

Restricted Payment ” means (a) any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of Holdings or any Subsidiary, (b) any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to a Loan Party’s or its Subsidiaries’ stockholders, partners or members (or the equivalent Person thereof), or (c) any payment of management, consulting, monitoring, transaction or advisory fees to the Sponsor.

S&P ” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc. and any successor thereto.

SEC ” means the Securities and Exchange Commission.

Sale Leaseback ” means any transaction or series of related transactions pursuant to which the Borrowers or any of their Subsidiaries (a) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as part of such transaction, thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold, transferred or disposed.

Security Agreement ” means the Pledge and Security Agreement dated as of the date hereof by the Loan Parties and Collateral Agent for the benefit of the Lender Parties.

 

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Security Instruments ” means, collectively or individually as the context may indicate, the Security Agreement, the Control Agreements, the Mortgages, all security agreements pertaining to Intellectual Property, any landlord lien waiver, warehouseman’s or bailee’s letter or similar agreement and all other agreements, instruments and other documents, whether now existing or hereafter in effect, pursuant to which any Loan Party or other Person shall grant or convey to Collateral Agent or the Lenders a Lien in property as security for all or any portion of the Obligations.

Seller Put Option ” means the right of the Rollover Stockholders (as defined in the Stockholders Agreement) to require Holdings to purchase from the Rollover Stockholders one third (1/3) of each class of shares of the Equity Interests in Holdings held by the Rollover Stockholders pursuant to Section 5A of the Stockholders Agreement, which obligation of Holdings to purchase such shares shall be an unsecured and non-interest bearing obligation.

Senior Indebtedness ” means Senior Debt (as defined in the Intercreditor Agreement as in effect as of the Closing Date unless any amendment thereto is consented to by the Loan Parties).

Senior Indebtedness Documents ” means the Senior Loan Agreement, any notes issued thereunder, any guaranties thereof, any security agreements executed in connection therewith and any other instruments and agreements evidencing the terms of or securing the Senior Indebtedness.

Senior Lenders ” means each lender from time to time party to the Senior Loan Agreement.

Senior Lender Agent ” means Bank of Montreal.

Senior Loan Agreement ” means the Senior Loan Agreement dated as of the Closing Date, among Senior Lender Agent, the Loan Parties and Senior Lenders.

Sold Entity or Business ” has the meaning specified in the Compliance Certificate.

Solvent ” means, as to any Person on any date of determination, that on such date such Person (a) owns assets whose fair value (on a consolidated and going concern basis) exceeds such Person’s debts and liabilities, subordinated, contingent or otherwise; (b) owns property whose present fair salable value (on a consolidated and going concern basis) is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of such Person’s debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured in the ordinary course of business; (c) is able to pay its debts and liabilities, subordinated, contingent or otherwise, as such liabilities become absolute and matured in the ordinary course of business; and (d) is not engaged in, and is not about to engage in, business contemplated as of the applicable date of determination for which they have unreasonably small capital. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured liability.

 

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SPC ” is defined in Section 10.06 .

Specified Event of Default ” means any Event of Default under Section 8.01(a), 8.01(b) (solely with respect to Section 6.01, 6.02(a) or 6.02(b) or Article VII) or 8.01(f).

Specified Transaction ” means any Investment, Disposition, incurrence or repayment of Indebtedness or Restricted Payment, that by the terms of this Agreement requires, as a condition to consummating such transaction, compliance with the financial covenants to be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect.”

Sponsor ” means TPG Growth II Advisors and its Controlled Investment Affiliates.

Sponsor Investor Overage ” has the meaning specified in Section 2.19(d) .

Stockholders Agreement ” means that certain Stockholders Agreement dated as of January 31, 2014 by and among Holdings, TPG elf Holdings, L.P. and each other Person party thereto, as in effect on the date hereof.

Subsidiary ” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity (but not a representative office of such Person) of which a majority of the Voting Equity Interests are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of Holdings or any of its direct or indirect Subsidiaries.

Subsidiary Guarantor ” and “ Subsidiary Guarantors ” means each Subsidiary that becomes a Guarantor of all or a part of the Obligations after the Closing Date pursuant to Section 6.12 of the Agreement or otherwise.

Swap Contract ” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, (b) a “swap agreement” as that term is defined in Section 101(53B)(A) of the Bankruptcy Code, and (c) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.

 

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Swap Obligation ” means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

Swap Termination Value ” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

Target ” means J.A. Cosmetics.

Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

Term Borrowing ” means a borrowing consisting of Term Loans having the same Interest Period, made by each of the Term Lenders pursuant to Section 2.01(b) .

Term Lender ” means each Lender that has a Term Loan Commitment or, following termination of the Term Loan Commitments, has Term Loans outstanding.

Term Loan ” means a Eurodollar Rate Loan made to Borrowers pursuant to Section 2.01(b) or, if Section 3.02 or Section 3.03 are applicable, a Base Rate Loan.

Term Loan Commitment ” means, as to each Term Lender, its obligation to make Term Loans to Borrowers on the Closing Date pursuant to Section 2.01(b) in an aggregate original principal amount equal to the amount set forth opposite such Term Lender’s name on Schedule 2.01 .

Term Loan Facility ” means the facility described in Section 2.01(b) , providing for Term Loans to Borrowers by the Term Lenders in the original aggregate principal amount of $40,000,000.

Term Loan Maturity Date ” means July 31, 2019.

Term Loan Note ” means a promissory note made by Borrowers in favor of a Term Lender evidencing Term Loans made by such Term Lender, substantially in the form of Exhibit C-2 .

Total Outstandings ” means the Outstanding Amount of all Loans.

Trading With the Enemy Act ” has the meaning specified in Section 5.15.

 

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Transaction ” means, individually or collectively as the context may indicate, (a) the incurrence of the Senior Indebtedness, (b) the Closing Date Acquisition and (c) the entering by Borrowers of the Loan Documents to which they are a party and the funding of the Term Loan Facility.

UCC ” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided that if, with respect to any financing statement or by reason of any mandatory provisions of law, the perfection or the effect of perfection or non-perfection of any security interests granted to Collateral Agent pursuant to any applicable Loan Document is governed by the Uniform Commercial Code as in effect in a jurisdiction of the United States other than New York, the term “ UCC ” shall also include the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions of this Agreement, each Loan Document and any financing statement relating to such perfection or effect of perfection or non-perfection.

United States ” and “ U.S. ” mean the United States of America.

U.S. Bank ” means U.S. Bank National Association.

U.S. Person ” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

USA PATRIOT Act ” has the meaning specified in Section 5.15 .

Voting Equity Interests of any Person means capital stock or other equity interests of any class or classes (however designated) having ordinary voting power for the election of directors or other similar governing body of such Person, other than stock or other equity interests having such power only by reason of the happening of a contingency.

Waived Amount ” has the meaning specified in Section 2.06(b)(vii) .

Weighted Average Life to Maturity ” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (b) the then outstanding principal amount of such Indebtedness; provided that for purposes of determining the Weighted Average Life to Maturity of any Indebtedness that is being modified, refinanced, refunded, renewed, replaced or extended (the “ Applicable Indebtedness ”), the effects of any prepayments made on such Applicable Indebtedness prior to the date of the applicable modification, refinancing, refunding, renewal, replacement or extension shall be disregarded.

1.02. Other Interpretive Provisions . With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall

 

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include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns (subject to any restrictions on assignment set forth herein or in any other Loan Document), (iii) the words “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “ asset ” and “ property ” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

(b) In the computation of periods of time from a specified date to a later specified date, the word “ from ” means “ from and including ;” the words “ to ” and “ until ” each mean “ to but excluding ;” and the word “ through ” means “ to and including .”

(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

(d) For purposes of determining compliance with any provision in Section 7.01 , 7.02 , 7.03 , 7.05 , 7.06 , 7.08 or 7.11(a) , in the event that an item or subject matter meets the criteria of more than one of the categories described in each of the respective Sections therein, the Borrowers may, in their commercially reasonable discretion, classify and reclassify or later divide, classify or reclassify such item or subject matter (or any portion thereof) and will only be required to include the amount and type of such item or subject matter in one or more of the applicable categories in the applicable Section.

1.03. Accounting Terms.

(a) Generally . All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.

 

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(b) Changes in GAAP . If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either Borrower Agent, Collateral Agent or the Required Lenders shall so request, Collateral Agent, the Lenders and Borrower Agent shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) Borrower Agent shall provide to Collateral Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

(c) Pro Forma Calculations . Any pro forma calculation of the financial covenants set forth in Section 7.12 hereof (i) shall be made on a Pro Forma Basis as if all Specified Transactions (including, without limitation, all Indebtedness incurred or Acquisitions or Dispositions of a Subsidiary or business segment) made prior to the time of such measurement had been incurred or made, as applicable, on the first day of the Measurement Period most recently ended for which Borrower Agent has delivered (or was required to deliver) financial statements pursuant to Sections 6.01(a) or 6.01(b) and (ii) as of any date occurring prior to June 30, 2014 shall assume that the maximum Consolidated Total Net Leverage Ratio or minimum Consolidated Interest Coverage Ratio, as applicable, permitted or required, as applicable, as of such date is the applicable covenant level for the Measurement Period ending June 30, 2014. All defined terms used in the calculation of the financial covenants set forth in Section 7.12 hereof shall be calculated on a historical pro forma basis giving effect, during any Measurement Period that includes any Permitted Acquisition or, to the extent there is a reasonable basis for the Lenders to verify such historical results, any other Investment constituting an Acquisition permitted to be made hereunder, to the actual historical results of the Person or line of business so acquired and which amounts shall include adjustments as contemplated by the Pro Forma Adjustments set forth herein and in the Compliance Certificate.

(d) In computing financial ratios and other financial calculations of Holdings and its Subsidiaries required to be submitted pursuant to this Agreement, all Indebtedness shall be calculated at par value irrespective of whether such Person has elected the fair value option pursuant to FASB Interpretation No. 159 – The Fair Value Option for Financial Assets and Financial Liabilities—Including an amendment of FASB Statement No. 115 (February 2007) .

1.04. Uniform Commercial Code . As used herein, the following terms are defined in accordance with the UCC in effect in the State of New York from time to time: “Chattel Paper,” “Commodity Account”, “Commodity Contract”, “Deposit Account,” “Documents,” “General Intangible,” “Instrument,” “Inventory,” and “Securities Account.”

1.05. Reserved .

 

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1.06. Foreign Currency.   Transactions with Foreign Subsidiaries permitted hereunder that are denominated in Dollars shall be deemed to be the dollar equivalent of any such transactions that are actually funded in a foreign currency, if applicable, using prevailing exchange rates at the time of such transaction and without giving effect to fluctuations in exchange rates.

1.07. Times of Day . Unless otherwise specified, all references herein to times of day shall be references to Central time (daylight or standard, as applicable).

ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS

2.01. Loan Commitments.

(a) Reserved .    

(b) Term Loan Commitments . Subject to the terms and conditions set forth herein, each Lender severally agrees to make a Term Loan to Borrowers on the Closing Date in an amount equal to such Lender’s Term Loan Commitment. The advance of the Term Loan shall be made simultaneously by the Lenders in accordance with their respective Applicable Percentages of the Term Loan Facility. Amounts borrowed under this Section 2.01(b) and repaid or prepaid may not be reborrowed.

2.02. Borrowings and Continuations of Loans.

(a) Each Borrowing of Eurodollar Rate Loans shall be made upon Borrower Agent’s irrevocable notice to Collateral Agent, which may be given by telephone. Each such notice must be received by Collateral Agent not later than 1:00 p.m. three Business Days prior to the requested date of any Borrowing of Eurodollar Rate Loans. Each telephonic notice pursuant to this Section 2.02(a) must be confirmed promptly by delivery to Collateral Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of Borrower Agent. Each Borrowing of Eurodollar Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.

(b) Following receipt of a Committed Loan Notice for the Term Loan Facility, Collateral Agent shall promptly notify each Lender of the amount of its Applicable Percentage under the Term Loan Facility of the applicable Loans. In the case of a Term Borrowing, each Lender shall make the amount of its Loan available to Collateral Agent in immediately available funds at Collateral Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.01 , Collateral Agent shall make all funds so received available to Borrowers in like funds as received by Collateral Agent by wire transfer of such funds, in each case in accordance with written instructions provided to (and reasonably acceptable to) the Required Lenders and Collateral Agent by Borrower Agent.

(c) [Reserved].

(d) After giving effect to all continuations of Loans, there shall not be more than nine (9) Interest Periods in effect in respect of the Term Loan Facility.

 

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2.03. Reserved.

2.04. Reserved.

2.05. Repayment of Loans.

(a) Term Loan . Borrowers unconditionally promise to pay to Collateral Agent for the account of each Term Lender the aggregate principal amount of its Term Loan outstanding (as such amount is reduced as a result of prepayments applied in accordance with the terms of this Agreement) and all accrued and unpaid interest on the earlier of (i) the Term Loan Maturity Date, and (ii) the date of the acceleration of the Term Loan in accordance with the terms hereof.    

(b) Reserved .

(c) Reserved .

2.06. Prepayments .

(a) Optional . Subject to the terms of the Intercreditor Agreement, Borrowers may, upon notice to Collateral Agent from Borrower Agent, at any time or from time to time voluntarily prepay Term Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by Collateral Agent not later than 2:00 p.m. three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (B) any prepayment of Eurodollar Rate Loans shall be in a principal amount of at least $100,000 or, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, how such prepayment shall be applied and the Interest Period(s) of such Loans. Collateral Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage in respect of the Term Loan Facility). If such notice is given by Borrower Agent, Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that such notice may state that the prepayment is conditioned upon the effectiveness of other credit facilities, acquisitions or dispositions, in which case such notice may be revoked by Borrower Agent (by notice to Collateral Agent on or prior to the specified effective date) if such condition is not satisfied. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05 . Each prepayment of the outstanding Term Loans pursuant to this Section 2.06(a) shall be applied as specified by the Borrower Agent in the applicable notice of prepayment and, in the absence of such direction, in the manner set forth in Section 2.06(b)(iv) . Such prepayments shall be paid to the Lenders in accordance with their respective Applicable Percentage in respect of the Term Loan Facility.

 

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(b) Mandatory .

(i) Excess Cash Flow . Subject to the terms of the Intercreditor Agreement, within ten Business Days after financial statements have been delivered or should have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered or should have been delivered pursuant to Section 6.02(a) commencing with the Fiscal Year ending December 31, 2014 (it being agreed and understood that Excess Cash Flow for the Fiscal Year ending December 31, 2014 shall be measured only for the period commencing on the Closing Date and ending on December 31, 2014), Borrowers shall prepay an aggregate principal amount of Loans equal to (x) 50% of Excess Cash Flow for the Fiscal Year covered by such financial statements; provided that (1) if the Consolidated Total Net Leverage Ratio (determined as of the last day of such Fiscal Year by reference to the Compliance Certificate delivered together with the financial statements delivered pursuant to Section 6.01(a) for such Fiscal Year) shall be less than 4.60 to 1.00 but greater than or equal to 4.03 to 1.00, Borrowers shall prepay an aggregate principal amount of Loans equal to 25% of Excess Cash Flow for such Fiscal Year and (2) if the Consolidated Total Net Leverage Ratio (determined as of the last day of such Fiscal Year by reference to the Compliance Certificate delivered together with the financial statements delivered pursuant to Section 6.01(a) for such Fiscal Year) shall be less than 4.03 to 1.00, Borrowers shall prepay an aggregate principal amount of Loans equal to 0% of Excess Cash Flow for such Fiscal Year, less (y) the aggregate amount of voluntary prepayments of the Term Loans (other than Discounted Voluntary Prepayments), the Term Loans (as defined in the Senior Loan Agreement) and the Revolving Loans (as defined in the Senior Loan Agreement) to the extent accompanied by a permanent reduction in the Revolving Credit Commitment (as defined in the Senior Loan Agreement), in each case, made (i) during such Fiscal Year (other than any voluntary prepayments made during the first 120 days of such Fiscal Year to the extent such voluntary prepayments were credited in the calculation of the Excess Cash Flow prepayment for the prior Fiscal Year) or (ii) within 120 days after the end of the Fiscal Year for which such Excess Cash Flow is being calculated that are applied in the manner set forth in Section 2.06(b)(iv) , in each case, to the extent not financed with proceeds from the incurrence of long-term Indebtedness.

(ii) Asset Dispositions . Subject to the terms of the Intercreditor Agreement, if any Loan Party or any of its Subsidiaries Disposes of, or suffers an Event of Loss of, any property (other than any Disposition of any property permitted by Sections 7.05 (a), (b)(i), (c), (e), (f), (g), (h), (i), (j), (k) or (l)) which results in Net Cash Proceeds in connection with such Disposition or Event of Loss in excess of $1,000,000 and, together with all other Dispositions and Events of Loss occurring during the Fiscal Year in excess of $2,000,000, Borrowers shall prepay an aggregate principal amount of Loans equal to such excess Net Cash Proceeds promptly after receipt thereof by such Person; provided that so long as no Event of Default shall have occurred and be continuing (or, to the extent the only Event of Default that has occurred and is continuing is an Event of Default

 

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arising under Section 8.01(a) , so long as the Borrowers have paid in full the unpaid amount giving rise to such Event of Default with such Net Cash Proceeds (such payment, the “ Monetary Default Payment ”)), the recipient of any such Net Cash Proceeds realized in a Disposition or Event of Loss described in this Section 2.06(b)(ii) may (x) reinvest the amount of any such Net Cash Proceeds (or, to the extent such Net Cash Proceeds were used to pay the Monetary Default Payment, the remaining amount of such Net Cash Proceeds) within three hundred sixty-five (365) days of the receipt thereof, in replacement assets of a kind then used or usable in the business of such recipient or (y) enter into a binding commitment thereof within said three hundred sixty-five (365) day period and actually reinvests such Net Cash Proceeds within one hundred eighty (180) days after the last day of said three hundred sixty-five (365) day period; provided that if the recipient does not intend to fully reinvest such Net Cash Proceeds, or if the time period set forth in this sentence expires without such recipient having reinvested such Net Cash Proceeds, Borrowers shall prepay the Loans in an amount equal to such Net Cash Proceeds (to the extent not reinvested or intended to be reinvested within such time period).

(iii) Debt Incurrence . Subject to the terms of the Intercreditor Agreement, upon the incurrence or issuance by any Loan Party or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.01 ), Borrowers shall prepay an aggregate principal amount of Loans equal to all Net Cash Proceeds received therefrom promptly after receipt thereof by such Loan Party or such Subsidiary.

(iv) Application of Mandatory Prepayments. Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.06(b) shall be applied to the outstanding amount of Term Loans and paid to the Collateral Agent for the account of each Term Lender in accordance with their respective Applicable Percentage.    

(v) Notwithstanding the foregoing, any Lender may elect to decline, by notice to Collateral Agent and the Borrower Agent on or prior to the date of any prepayment of Term Loans required or permitted to be made by the Borrowers for the account of such Lender pursuant to Section 2.06(b)(i) or 2.06(b)(ii) , all or a portion of such prepayment, in which case such prepayment (or portion thereof) shall be retained by the Borrowers.

(vi) Notwithstanding the foregoing, to the extent any or all of the Net Cash Proceeds of any Disposition by, or Event of Loss of, a Foreign Subsidiary otherwise giving rise to a prepayment pursuant to Section 2.06(b)(ii) or Excess Cash Flow attributable to Foreign Subsidiaries, is prohibited, restricted or delayed by any applicable local requirements of Law (including but not limited to financial assistance, corporate benefit restrictions and restrictions on upstreaming of cash intra-group and the fiduciary and statutory duties of the directors of the relevant Foreign Subsidiaries) from being repatriated or passed on or distributed to or used for the benefit of any of the Borrowers or any Domestic Subsidiary

 

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(each, a “ Repatriation ”; with “ Repatriated ” having a correlative meaning), or if the Borrowers have determined in good faith that Repatriation of any such amount would reasonably be expected to have adverse tax consequences with respect to Holdings or its Subsidiaries (including, without limitation, a deemed dividend pursuant to Section 956 of the Code), the receipt or realization of the portion of such Net Cash Proceeds or Excess Cash Flow so affected (solely in the case of Excess Cash Flow, to the extent not exceeding 20% of the aggregate Excess Cash Flow payment otherwise required to be made pursuant to Section 2.06(b)(i) without giving effect to this clause (vi)), will not be taken into account in measuring the Borrowers’ obligation to prepay Term Loans at the times provided in this Section 2.06 ; provided , that if any such Repatriation ceases to be prohibited, restricted or delayed by applicable local requirements of Law at any time during the one (1) year period immediately following the date on which the applicable mandatory prepayment pursuant to Section 2.06 was required to be made, the Loan Parties shall reasonably promptly Repatriate, or cause to be Repatriated, an amount equal to that portion of the applicable mandatory prepayment amount previously not taken into account in measuring the Borrowers’ obligation to make such mandatory prepayment under Section 2.06 (such amount, the “ Excluded Prepayment Amount ”), and, subject to the terms of the Intercreditor Agreement, the Loan Parties shall reasonably promptly pay the Excluded Prepayment Amount to the Lenders, which payment shall be applied in accordance with Section 2.06(b)(iv) . For the avoidance of doubt, the non-application of any such portion of the mandatory prepayment amount pursuant to this Section 2.06(b)(vi) shall not constitute a Default or an Event of Default and such portion of the mandatory prepayment amount shall be available for working capital purposes of such Foreign Subsidiaries.

(vii) Notwithstanding the foregoing, until the repayment in full of the obligations under the Senior Indebtedness Documents, no mandatory prepayments of outstanding Loans that would otherwise be required to be made hereunder shall be required to be made. For the avoidance of doubt, to the extent any mandatory prepayment is waived under the Senior Loan Agreement (the amount waived being referred to herein as the “ Waived Amount ”), the Waived Amount shall not be required to be applied to prepay the Loans; provided , however , that any such Waived Amount shall not be included in the Available Amount, except to the extent of any Waived Amount offered to, and declined by, the Lenders.

(c) Prepayment Premium .    

(i) In the event that all or any portion of the Loans are voluntarily prepaid for any reason (other than in connection with a Change of Control) or mandatorily prepaid pursuant to Section 2.06(b)(iii) (other than in connection with a Change of Control), such prepayment will be made, in each case, at (w) 104.0% of the principal amount of the Loans prepaid if such prepayment occurs on or prior to the first anniversary of the Closing Date, (x) 102.0% of the principal amount prepaid if such prepayment occurs after the first anniversary of the Closing Date but on or prior to the second anniversary of the Closing Date, (y)

 

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101.0% of the principal amount prepaid if such prepayment occurs after the second anniversary of the Closing Date but on or prior to the third anniversary of the Closing Date and (z) par if such prepayment occurs after the third anniversary of the Closing Date.

(ii) In the event that all or any portion of the Loans are voluntarily prepaid for any reason in connection with a Change of Control or mandatorily prepaid pursuant to Section 2.06(b)(iii)  in connection with a Change of Control, such prepayment will be made, in each case, at (x) 101.0% of the principal amount of the Loans prepaid if such prepayment occurs on or prior to the third anniversary of the Closing Date and (y) par, if such prepayment occurs after the third anniversary of the Closing Date.

2.07. Termination or Reduction of Commitments.

(a) Reserved .

(b) Term Loan Commitment . The aggregate Term Loan Commitments shall be automatically and permanently reduced to zero on the date of the Term Borrowing (after giving effect thereto).

2.08. Interest.

(a) Subject to the provisions of Section 2.10 and subsection (b) below, (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Margin and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable Borrowing date at a rate per annum equal to the Base Rate plus the Applicable Margin.

(b) (i) If any amount payable by Borrowers under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

(ii) If any Event of Default exists, then upon the written request of the Required Lenders (which Collateral Agent shall notify Borrowers thereof) (or automatically if an Event of Default under Section 8.01(a) or 8.01(f) exists), all outstanding Obligations shall bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate.

(iii) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

 

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2.09. Fees.

(a) Reserved .    

(b) Reserved .

(c) Fee Letter . Borrowers agree to pay the fees payable in the amount and at the time set forth in the Fee Letter.

(d) Generally . All fees payable hereunder shall be paid on the dates due, in immediately available funds, to Collateral Agent for distribution to the Lenders entitled thereto. Fees paid shall not be refundable under any circumstances.

2.10. Computation of Interest and Fees . All computations of interest for Base Rate Loans shall be made on the basis of actual days elapsed over a year of 365 or 366 days, as the case may be. All other computations of fees and interest shall be made on the basis of the actual days elapsed over a 360-day year (i.e., the 365/360 day method of interest computation, which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a) , bear interest for one day. Each determination by Collateral Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

2.11. Evidence of Debt.

(a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by Collateral Agent (the “ Loan Account ”) in the Register; provided that any failure to so record or any error in doing so shall not limit or otherwise affect the obligation of Borrowers hereunder to pay any amount owing with respect to the Obligations. The accounts or records maintained by Collateral Agent (and any Lender) shall be conclusive absent manifest error; provided that in the event of any conflict between the accounts and records maintained by any Lender and the Register, the Register shall control in the absence of manifest error. Upon the request of any Lender made through Collateral Agent, Borrowers shall execute and deliver to such Lender (through Collateral Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records.

(b) [Reserved].

2.12. Payments Generally; Collateral Agent’s Clawback.

(a) General . All payments to be made by Borrowers shall be made without deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by Borrowers hereunder shall be made to

 

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Collateral Agent, for the account of the respective Lenders to which such payment is owed, at Collateral Agent’s Office in Dollars and in immediately available funds not later than 1:00 p.m. on the date specified herein. Subject to Section 2.14 , Collateral Agent will promptly distribute to each Lender its Applicable Percentage in respect of the Term Loan Facility (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by Collateral Agent after 1:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected when computing interest or fees, as the case may be.

(b) Reserved .

(c) Failure to Satisfy Conditions Precedent . If any Lender makes available to Collateral Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II , and such funds are not made available to Borrowers by Collateral Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, Collateral Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

(d) Obligations of Lenders Several . The obligations of the Lenders hereunder to make Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c) .

(e) Insufficient Funds . If at any time insufficient funds are received by and available to Collateral Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied as provided in Section 8.03 .

2.13. Sharing of Payments by Lenders . Except as otherwise provided herein, if any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of the Term Loan Facility due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Term Loan Facility due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations in respect of the Term Loan Facility due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (b) Obligations in respect of the Term Loan Facility owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate amount of the

 

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Obligations in respect of the Term Loan Facility owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations in respect of the Term Loan Facility owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time, then, in each case under clauses (a) and (b) above, the Lender receiving such greater proportion shall (A) notify Collateral Agent of such fact, and (B) purchase (for cash at face value) participations in the Loans, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of Obligations in respect of the Term Loan Facility then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be, provided that:

(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

(ii) the provisions of this Section shall not be construed to apply to (A) any payment made by or on behalf of any Loan Party pursuant to and in accordance with the express terms of this Agreement (including payments under Section 2.19 ) or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant.

2.14. Reserved .

2.15. Nature and Extent of Each Borrower’s Liability .

(a) Joint and Several Liability . Each Borrower agrees that it is jointly and severally liable for all Obligations and all agreements under the Loan Documents. As such, each Borrower agrees that it is a guarantor of each other Borrower’s obligations and liabilities hereunder and under the other Loan Documents.

(b) Direct Liability . Nothing contained in this Section 2.15 or Article XI shall limit the liability of any Borrower to pay Loans made directly or indirectly to that Borrower (including Loans advanced to any other Borrower and then re-loaned or otherwise transferred to, or for the benefit of, such Borrower), and all accrued interest, fees, expenses and other related Obligations with respect thereto, for which such Borrower shall be primarily liable for all purposes hereunder.

(c) Joint Enterprise . Each Borrower has requested that Collateral Agent and Lenders make this credit facility available to Borrowers on a combined basis, in order to finance Borrowers’ business most efficiently and economically. Borrowers’ business is a mutual and collective enterprise, and the successful operation of each Borrower is dependent upon the successful performance of the integrated group. Borrowers believe that consolidation of their credit facility will enhance the borrowing power of each Borrower and ease administration of the facility, all to their mutual advantage. Borrowers acknowledge that Collateral Agent’s and Lenders’ willingness to extend credit and to administer the Collateral on a combined basis hereunder is done solely as an accommodation to Borrowers and at Borrowers’ request.

 

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(d) Borrower Agent .

(i) Each Borrower hereby irrevocably appoints and designates the Initial Borrower, and from and after the consummation of the Closing Date Acquisition and the joinder thereof pursuant to a Joinder Agreement, J.A. Cosmetics (“ Borrower Agent ”) as its representative and agent and attorney-in-fact for all purposes under the Loan Documents, including requests for Credit Extensions, designation of interest rates, delivery or receipt of communications, preparation and delivery of financial reports, receipt and payment of Obligations, requests for waivers, amendments or other accommodations, actions under the Loan Documents (including in respect of compliance with covenants), and all other dealings with Collateral Agent or any Lender.

(ii) Each other Loan Party hereby irrevocably appoints and designates Borrower Agent as its agent and attorney-in-fact to receive statements on its account and all other notices from Collateral Agent and Lenders with respect to the Obligations or otherwise under or in connection with this Agreement and the other Loan Documents.

(iii) Any notice, election, representation, warranty, agreement or undertaking by or on behalf of any Loan Party by Borrower Agent shall be deemed for all purposes to have been made by such Loan Party and shall be binding upon and enforceable against such Loan Party to the same extent as if made directly by such Loan Party.

(iv) Borrower Agent hereby accepts the appointment by each Loan Party hereunder to act as its agent and attorney-in-fact.

(v) Collateral Agent and Lenders shall be entitled to rely upon, and shall be fully protected in relying upon, any notice or communication (including any notice of borrowing) delivered by Borrower Agent on behalf of any Borrower or other Loan Party. Collateral Agent and Lenders may give any notice or communication with a Borrower or other Loan Party hereunder to Borrower Agent on behalf of such Borrower or Loan Party. Each of Collateral Agent and Lenders shall have the right, in its discretion, to deal exclusively with Borrower Agent for any or all purposes under the Loan Documents. Each Borrower and each other Loan Party agrees that any notice, election, communication, representation, agreement or undertaking made on its behalf by Borrower Agent shall be binding upon and enforceable against it.

 

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2.16. Reserved.

2.17. Reserved.

2.18. Reserved.

2.19. Prepayments Below Par.

(a) Borrowers’ Right to Prepay . Each Borrower shall have the right at any time and from time to time to prepay the Term Loan to the Lenders at a discount to the par value of such Loan and on a non-pro rata basis (each, a “ Discounted Voluntary Prepayment ”) pursuant to the procedures described in this Section 2.19 , provided that (i) no proceeds of Revolving Loans (as defined in the Senior Loan Agreement) or Swing Line Loans (as defined in the Senior Loan Agreement) shall be used to consummate any Discounted Voluntary Prepayment, (ii) no Default or Event of Default shall have occurred and be continuing or would result from the Discounted Voluntary Prepayment, (iii) the relevant Borrower shall deliver to Collateral Agent, together with each Discounted Prepayment Option Notice, a certificate of a Responsible Officer of the relevant Borrower (1) stating that each of the conditions to such Discounted Voluntary Prepayment contained in this Section 2.19 has been satisfied and (2) specifying the aggregate principal amount of the Term Loan to be prepaid pursuant to such Discounted Voluntary Prepayment, (iv) the Term Loan prepaid is immediately cancelled and may not be reborrowed, and (v) neither the Sponsor, the Borrowers or any of their respective Affiliates shall be required to make a representation that it is not in possession of material non-public information with respect to the Borrowers, their Subsidiaries or their respective securities and customary “Big Boy” disclaimers from all parties shall be obtained.

(b) Notice . To the extent any Borrower seeks to make a Discounted Voluntary Prepayment, such Borrower will provide written notice to the Collateral Agent (each, a “ Discounted Prepayment Option Notice ”) that such Borrower desires to prepay a portion of the Term Loan in an aggregate principal amount specified therein by such Borrower (each, a “ Proposed Discounted Prepayment Amount ”), in each case at a discount to the par value of the Term Loan as specified below. The Proposed Discounted Prepayment Amount shall not be less than $1,000,000 (unless otherwise agreed by the Collateral Agent). The Discounted Prepayment Option Notice shall further specify with respect to the proposed Discounted Voluntary Prepayment (i) the Proposed Discounted Prepayment Amount, (ii) a discount range (which may be a single percentage) selected by such Borrower with respect to such proposed Discounted Voluntary Prepayment equal to a percentage of par of the principal amount of the Term Loan to be prepaid (the “ Discount Range ”), and (iii) the date by which Lenders are required to indicate their election to participate in such proposed Discounted Voluntary Prepayment, which shall be at least 5 Business Days following the date of the Discounted Prepayment Option Notice (the “ Acceptance Date ”).

(c) Lender Acceptance . Upon receipt of a Discounted Prepayment Option Notice, the Collateral Agent shall promptly notify each applicable Lender thereof. On or

 

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prior to the Acceptance Date, each such Lender may specify by written notice (each, a “ Lender Participation Notice ” it being understood that a Lender may deliver more than one Lender Participation Notice, and that each such Lender Participation Notice of such Lender shall constitute an independent and unconditional offer, and no such Lender Participation Notice may be contingent on the making of any prepayment with respect to the Offered Loans (defined below) in respect of any other Lender Participation Notice, or otherwise be contingent or conditional in any way) to the Collateral Agent setting forth (i) a maximum acceptable discount to par (the “ Acceptable Discount ”) within the Discount Range (for example, a Lender specifying a discount to par of 20% would accept a purchase price of 80% of the par value of the portion of the Term Loan to be prepaid) and (ii) a maximum principal amount (subject to rounding requirements specified by the Collateral Agent) of the Term Loan held by such Lender with respect to which such Lender is willing to permit a Discounted Voluntary Prepayment at the Acceptable Discount (“ Offered Loans ”). Based on the Acceptable Discounts and principal amounts of the Offered Loans, the Collateral Agent, in consultation with the relevant Borrower, shall determine the applicable discount for the portion of the Term Loan to be prepaid (the “ Applicable Discount ”), which Applicable Discount shall be (y) the percentage specified by the relevant Borrower if such Borrower has selected a single percentage pursuant to Section 2.19(b) for the Discounted Voluntary Prepayment or (z) otherwise, the highest Acceptable Discount at which such Borrower can pay the Proposed Discounted Prepayment Amount in full (determined by adding the principal amounts of Offered Loans commencing with the Offered Loans with the highest Acceptable Discount); provided, however, that in the event that such Proposed Discounted Prepayment Amount cannot be paid in full at any Acceptable Discount, the Applicable Discount shall be the highest Acceptable Discount specified by the Lenders that is within that Discount Range and then the next highest until all of the Offered Loans are repurchased. The Applicable Discount shall be applicable for all Lenders who have offered to participate in the Discounted Voluntary Prepayment and have Qualifying Loans (as defined below). Any Lender whose Lender Participation Notice is not received by the Collateral Agent by the Acceptance Date shall be deemed to have declined to accept a Discounted Voluntary Prepayment of its portion of the Term Loan at any discount to their par value within the Discount Range.

(d) Loans held by Sponsor and Affiliates . Notwithstanding anything in this Section 2.19 to the contrary, if the consummation of any Discounted Voluntary Prepayment would have the effect of causing the aggregate principal amount of the Term Loans held by Sponsor and its Affiliates (other than Debt Fund Affiliates) to exceed 25% of the aggregate principal amount of all Term Loans then outstanding (a “ Sponsor Investor Overage ”), the Sponsor, such Affiliates and each Borrower agree that (i) the Sponsor and such Affiliates shall be deemed to have issued Lender Participation Notices accepting the Discounted Voluntary Prepayment offer for sufficient portions of the Term Loans held by the Sponsor and its Affiliates (other than Debt Fund Affiliates) so that the Sponsor Investor Overage would be eliminated, (ii) the applicable Borrower shall be deemed to have accepted such Lender Participation Notices in the aggregate amount necessary to eliminate the Sponsor Investor Overage and (iii) the Collateral Agent shall determine, in consultation with the applicable Borrower, how to allocate the applicable Discounted Voluntary Prepayment among the Sponsor and its Affiliates.

 

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(e) Allocation . The relevant Borrower shall make a Discounted Voluntary Prepayment by prepaying the portion of the Term Loan to be prepaid (or the respective portions thereof) offered by the Lenders (“ Qualifying Lenders ”) that specify an Acceptable Discount that is equal to or greater than the Applicable Discount (“ Qualifying Loans ”) at the Applicable Discount, provided that if the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would exceed the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount, such amounts in each case calculated by applying the Applicable Discount, such Borrower shall prepay such Qualifying Loans ratably among the Qualifying Lenders based on their respective principal amounts of such Qualifying Loans (subject to rounding requirements specified by the Collateral Agent). If the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would be less than the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount, such amounts in each case calculated by applying the Applicable Discount, the relevant Borrower shall prepay all Qualifying Loans.

(f) Payment Mechanics . Each Discounted Voluntary Prepayment shall be made within 5 Business Days of the Acceptance Date (or such later date as the Collateral Agent shall reasonably agree, given the time required to calculate the Applicable Discount and determine the amount and holders of Qualifying Loans), without premium or penalty, upon irrevocable notice (each a “ Discounted Voluntary Prepayment Notice ”), delivered to the Collateral Agent no later than 1:00 p.m. New York City Time, 3 Business Days prior to the date of such Discounted Voluntary Prepayment, which notice shall specify the date and amount of the Discounted Voluntary Prepayment and the Applicable Discount determined by the Collateral Agent. Upon receipt of any Discounted Voluntary Prepayment Notice, the Collateral Agent shall promptly notify each relevant Lender thereof. If any Discounted Voluntary Prepayment Notice is given, the amount specified in such notice shall be due and payable to the applicable Lenders, subject to the Applicable Discount on the applicable portion of the Term Loan, on the date specified therein together with accrued interest (on the par principal amount) to but not including such date on the amount prepaid. The par principal amount of each Discounted Voluntary Prepayment of the Term Loan shall be applied ratably to reduce the remaining installments of the Term Loan.

(g) Additional Procedures .  To the extent not expressly provided for herein, each Discounted Voluntary Prepayment shall be consummated pursuant to reasonable procedures (including as to timing, rounding, minimum amounts, Type and Interest Periods and calculation of Applicable Discount in accordance with Section 2.19(b) above) established by the Collateral Agent and the relevant Borrower.

 

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ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY

3.01. Taxes .

(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes .

(i) Any and all payments by or on account of any obligation of the Loan Parties hereunder or under any other Loan Document shall to the extent permitted by applicable Laws be made free and clear of and without reduction or withholding for any Taxes. If, however, applicable Law requires the withholding or deduction of any Tax, such Tax shall be withheld or deducted in accordance with such Laws as determined in good faith by Borrower Agent or Collateral Agent, as the case may be, taking into account the information and documentation to be delivered pursuant to subsection (e) below.

(ii) If applicable Law requires the withholding or deduction of any Taxes from any payment under any Loan Document, then (A) the applicable Loan Party shall withhold or make such deductions as are required taking into account the information and documentation it has received pursuant to subsection (e) below, (B) such Loan Party shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the applicable Law, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the Loan Parties shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

(b) Payment of Other Taxes by Loan Parties . Without limiting the provisions of subsection (a) above but without duplication of amounts payable under this Section, the Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Law.

(c) Tax Indemnification .

(i) Without limiting the provisions of subsection (a) or (b) above but without duplication of amounts payable under this Section, each Loan Party shall, and does hereby, on a joint and several basis indemnify each Recipient (and its respective directors, officers, employees, affiliates and agents) and shall make payment in respect thereof within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) withheld or deducted on payments to, or paid by, such Recipient (or its respective directors, officers, employees, affiliates and agents), as the case may be, and any penalties, interest and related expenses and losses arising therefrom or with respect thereto

 

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(including the fees, charges and disbursements of any counsel or other tax advisor for the Recipient (or its respective directors, officers, employees, affiliates, and agents)), whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of any such payment or liability delivered to Borrower Agent by a Lender (with a copy to Collateral Agent), or by Collateral Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(ii) Without limiting the provisions of subsection (a) or (b) above, each Lender shall, and does hereby, indemnify Collateral Agent, and shall make payment in respect thereof within 10 days after demand therefor, against (i) any Indemnified Taxes attributable to such Lender, (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.06(d) relating to the maintenance of a Participation Register and (iii) any Taxes (other than Indemnified Taxes) attributable to such Lender, in each case, that are payable or paid by the Collateral Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Collateral Agent shall be conclusive absent manifest error. Each Lender hereby authorizes Collateral Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to Collateral Agent under this clause (ii). The agreements in this clause (ii) shall survive the resignation and/or replacement of Collateral Agent, any assignment of rights by, or the replacement of, a Lender and the occurrence of the Facility Termination Date.

(d) Evidence of Payments . Upon request by Borrower Agent or Collateral Agent, as the case may be, after any payment of Taxes by the Loan Parties or by Collateral Agent to a Governmental Authority as provided in this Section 3.01 , Borrower Agent shall deliver to Collateral Agent or Collateral Agent shall deliver to Borrower Agent, as the case may be, the original or a copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to Borrower Agent or Collateral Agent, as the case may be.

(e) Status of Lenders; Tax Documentation .

(i) Each Recipient shall deliver to Borrower Agent and to Collateral Agent, at the time or times prescribed by applicable Laws or when reasonably requested by Borrower Agent or Collateral Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit Borrower Agent or Collateral Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Loan Document are subject to withholding Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Recipient’s entitlement to any available

 

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exemption from, or reduction of, applicable withholding Taxes in respect of all payments to be made to such Recipient by the Loan Parties pursuant to this Agreement or otherwise to establish such Recipient’s status for withholding tax purposes in the applicable jurisdiction; provided each Recipient shall only be required to deliver such documentation as it may legally provide.

(ii) Without limiting the generality of the foregoing:

(A) any Recipient that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to Borrower Agent and Collateral Agent executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by Borrower Agent or Collateral Agent as will enable Borrower Agent or Collateral Agent, as the case may be, to determine whether or not such Recipient is subject to backup withholding or information reporting requirements; and

(B) each Foreign Lender shall deliver to Borrower Agent and Collateral Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of Borrower Agent or Collateral Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:

(I) executed originals of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party, if any,

(II) executed originals of Internal Revenue Service Form W-8ECI,

(III) executed originals of Internal Revenue Service Form W-8IMY and all required supporting documentation, or

(IV) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of any Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) executed originals of Internal Revenue Service Form W-8BEN.

(iii) If a payment made to a Recipient under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Recipient were to fail to comply with the applicable reporting requirements of FATCA

 

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(including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Recipient shall deliver to Borrower Agent and Collateral Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrower Agent or Collateral Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower Agent or Collateral Agent as may be necessary for Borrower and Collateral Agent to comply with their obligations under FATCA and to determine the amount (if any) to deduct and withhold from such payment. Solely for purposes of this clause (iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(iv) Each Recipient shall promptly notify Borrower Agent and Collateral Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction.

(f) Treatment of Certain Refunds . So long as no Event of Default is occurring, if Collateral Agent or any Lender determines, in its sole discretion acting in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section, it shall pay to such Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by any Loan Party under this Section with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including Taxes) incurred by Collateral Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that each Loan Party, upon the request of Collateral Agent or such Lender, agrees to repay the amount paid over to any Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to Collateral Agent or such Lender in the event Collateral Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (f), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (f) to the extent the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid. This subsection shall not be construed to require Collateral Agent or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Loan Party or any other Person.

3.02. Illegality . If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice

 

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thereof by such Lender to Borrower Agent through Collateral Agent, (i) any obligation of such Lender to make or continue Eurodollar Rate Loans shall be suspended and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Collateral Agent without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies Collateral Agent and Borrower Agent that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Loan Parties shall, upon demand from such Lender (with a copy to Collateral Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Collateral Agent without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Collateral Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Collateral Agent is advised in writing by the Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Loan Parties shall also pay accrued interest on the amount so prepaid or converted.

3.03. Inability to Determine Rates . If the Collateral Agent determines that for any reason in connection with any request for a Eurodollar Rate Loan or continuation thereof that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, Collateral Agent will promptly so notify Borrower Agent and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until Collateral Agent revokes such notice. Upon receipt of such notice, Borrower Agent may revoke any pending request for a Borrowing of or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for Borrowing of Base Rate Loans in the amount specified therein.

3.04. Increased Costs; Reserves on Eurodollar Rate Loans .

(a) Increased Costs Generally . If any Change in Law shall:

(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement contemplated by Section 3.04(e) );

 

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(ii) subject any Recipient to any Taxes on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto (except for (i) Indemnified Taxes covered by Section 3.01 , (ii) any Tax described in clause (a) of the definition of Excluded Taxes to the extent such Taxes are imposed on or measured by such Recipient’s net income or profits (or are franchise Taxes imposed in lieu thereof) and (iii) any Tax described in clauses (b) through (e) of the definition of Excluded Taxes); or

(iii) impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such Lender or participation therein;

and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender hereunder with respect to a Eurodollar Rate Loan (whether of principal, interest or any other amount) then, upon request of such Lender, the Loan Parties will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.

(b) Capital Requirements . If any Lender determines that any Change in Law affecting such Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, or the Loans made by such Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time pursuant to subsection (c) below the Loan Parties will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.

(c) Certificates for Reimbursement . A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as specified in subsection (a) or (b) of this Section and delivered to Borrower Agent shall be conclusive absent manifest error. The Loan Parties shall pay such Lender the amount shown as due on any such certificate within 10 Business Days after receipt thereof.

(d) Delay in Requests . Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s right to demand such compensation, provided that the Loan Parties shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender notifies the Loan Parties of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim

 

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compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

(e) Reserves on Eurodollar Rate Loans . Without duplication of the effect of the Eurodollar Reserve Percentage, Borrowers shall pay to each Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits, additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive absent manifest error), which shall be due and payable on each date on which interest is payable on such Loan, provided Borrower Agent shall have received at least 15 days’ prior written notice (with a copy to Collateral Agent) of such additional interest from such Lender. If a Lender fails to give notice 15 days prior to the relevant Interest Payment Date, such additional interest shall be due and payable 15 days from receipt of such written notice.

3.05. Compensation for Losses . Upon demand of any Lender (with a copy to Collateral Agent) from time to time, Borrowers shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:

(a) any continuation, payment or prepayment of any Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);

(b) any failure by Borrowers (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, or continue any Loan on the date or in the amount notified by Borrower Agent; or

(c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by Borrower Agent pursuant to Section 10.13 ;

including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. Borrowers shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.

For purposes of calculating amounts payable by Borrowers to the Lenders under this Section 3.05 , each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.

3.06. Reimbursement

No Loan Party shall be required to compensate a Lender pursuant to this Article III for any increased costs or reductions incurred more than one hundred eighty (180) days prior to the

 

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date that such Lender notifies the Borrower Agent of the change in law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefore, provided further that, if the change in law giving rise to such increases costs or reduction is retroactive then the 180 day period referred to above shall be extended to include the period of retroactive effect hereof. Upon the receipt by Borrower Agent of such demand, the Borrower Agent shall have the option to immediately repay such Eurodollar Loan or convert such Eurodollar Loan to a Base Rate Loan, in each case in order to minimize or eliminate such increased cost or reduction.

3.07. Mitigation Obligations . If any Lender requests compensation under Section 3.04 , or Borrowers are required to indemnify or pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 , or if any Lender gives a notice pursuant to Section 3.02 , then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04 , as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02 , as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

3.08. Survival . All of the obligations under this Article III shall survive the resignation of Collateral Agent, the replacement of any Lender and the occurrence of the Facility Termination Date.

ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

4.01. Conditions of Initial Credit Extension . The obligation of each Lender to make any initial Credit Extension hereunder is subject to satisfaction or waiver by the applicable party of the following conditions precedent:

(a) The Required Lenders’ receipt of the following items, each properly executed by a Responsible Officer of applicable Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Required Lenders and its legal counsel:

(i) Uniform Commercial Code financing statements, suitable in form and substance for filing in all places required by applicable law to perfect the Liens of Collateral Agent under the Security Instruments as a second priority Lien under U.S. law as to items of Collateral in which a security interest may be perfected by the filing of financing statements;

(ii) a legal opinion from Kirkland and Ellis LLP;

 

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(iii) the secretary’s certificates, borrowing request and closing certificates set forth on the closing checklist attached hereto as Exhibit G ;

(iv) a solvency certificate in the form of Exhibit I ; and

(v) the Loan Documents, except for (i) the Guarantees by the Guarantors and (ii) those items that are specifically permitted herein to be delivered after the Closing Date

(b) with respect to the Borrowers, all amounts due or outstanding in respect of any Indebtedness of the Target (other than as permitted to remain outstanding under the Closing Date Acquisition Documents or the Loan Documents) and the Initial Borrower and its Subsidiaries have been (or substantially simultaneously with the initial funding of the Loans on the Closing Date, will be) paid in full, all commitments (if any) in respect thereof terminated, all guarantees (if any) thereof discharged and released and all security therefor (if any) released or documentation to effect such release upon such repayment and termination have been delivered to the Collateral Agent; provided , that notwithstanding the foregoing, certain lien filings, if any, in the U.S. Patent and Trademark Office or the U.S. Copyright Office, as applicable, on Intellectual Property owned by Target and its Subsidiaries relating to such Indebtedness of the Target (the “ Specified Lien Filings ”) shall not be required to be removed on or prior to the Closing Date, and Borrowers shall have seven (7) days following the Closing Date (or such longer period as may be agreed by the Required Lenders in their sole discretion) to file (or to have filed) the appropriate documents to cause the Specified Lien Filings to be removed;

(c) (x) the consummation of the incurrence of the Senior Indebtedness in accordance with the terms of the Senior Indebtedness Documents (it being agreed that the original aggregate principal amount of term loans funded on the Closing Date shall not to exceed $105,000,000), (y) the consummation of equity contributions by Sponsor and its co-investors (together with rollover equity contributions from the selling shareholders and management of the Target) of not less than 35% of the total pro forma capital structure of the Initial Borrower and its Subsidiaries (after giving effect to the Transactions) and (z) the consummation of, substantially simultaneously with, but after, the initial funding of Loans on the Closing Date, the Closing Date Acquisition in accordance with the terms of the Closing Date Acquisition Documents, without any waiver, amendment, supplement or other modification of any provision of the Purchase Agreement that is material and adverse to the Lenders unless the Required Lenders have consented thereto; provided , that (1) any reduction in the purchase price for the Closing Date Acquisition set forth in the Purchase Agreement by less than fifteen percent (15%) is not material and adverse to the interests of the Lenders, (2) any increase in the purchase price for the Closing Date Acquisition set forth in the Purchase Agreement is not material and adverse to the interests of the Lenders so long as any such purchase price increase is funded with the proceeds of equity contributions or proceeds of the Senior Indebtedness (it being understood and agreed that no purchase price adjustments or similar adjustment provisions set forth in the Purchase Agreement constitute a reduction or increase in the purchase price of the Closing Date Acquisition for purposes of this

 

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proviso), (3) the granting by Holdings of any consent under the Purchase Agreement that is not materially adverse to the interests of the Lenders shall not constitute an amendment or waiver for purposes of this clause (z) and (4) any change to the definition of “Material Adverse Effect” in the Purchase Agreement shall be deemed materially adverse to the Lenders.

(d) All accrued costs, fees and expenses (including all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to PennantPark, plus such additional amounts of such reasonable out-of-pocket fees, charges and disbursements as shall constitute its reasonable estimate of such reasonable out-of-pocket fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrowers and PennantPark) and the fees and expenses of any other advisors) and other compensation due and payable to the Collateral Agent or PennantPark on or before the Closing Date shall have been paid (or deducted from the initial funding of the Loans hereunder), to the extent invoiced prior to the Closing Date (except as otherwise reasonably agreed by the Initial Borrower).

(e) The Lenders shall have received (i) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Target and its Subsidiaries for the Fiscal Year ended December 31, 2011 and the Fiscal Year ended December 31, 2012 and (ii) unaudited consolidated balance sheets and related statements of income and cash flows of the Target and its Subsidiaries for the month ended November 30, 2013 (and the corresponding period of the prior Fiscal Year, each prepared in accordance with GAAP; it being agreed and understood that as of the date hereof, the Lenders have received such documents.

(f) The Lenders shall have received an unaudited pro forma consolidated balance sheet of the Borrowers as of the date of the most recent consolidated balance sheet delivered pursuant to clause (e) above and related unaudited pro forma combined statement of income of the Target and its Subsidiaries for the twelve-month period ending on such balance sheet date, in each case adjusted to give effect to the Transactions as if the Transactions had occurred as of such date (in the case of such pro forma balance sheet) or at the beginning of such period (in the case of the pro forma statement of income); it being agreed and understood that as of the date hereof, the Lenders have received such documents.

(g) The representations and warranties (i) set forth in Articles III and IV of the Purchase Agreement made by the Target and the Sellers in the Purchase Agreement as are material to the interests of the Lenders shall be true and correct in all respects but only to the extent that Initial Borrower (or any of its Affiliates) has the right to terminate its obligations under the Purchase Agreement (or refuse to consummate the Purchase Agreement) as a result of the breach of such representation or warranty in the Purchase Agreement (the “ Specified Acquisition Agreement Representations ”) and (ii) of the Initial Borrower contained in Sections 5.01(a) , 5.01(b)(ii) (solely as it relates to the Loan Documents), 5.02(a) (solely as it relates to the Loan Documents), 5.03 , 5.04(d) , 5.13 , 5.15 , 5.19 of this Agreement and Section 5(j) of the Security Agreement (solely with

 

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respect to the first two sentences thereof) (the “ Specified Representations ”) shall be true and correct in all material respects (without duplication of any materiality qualified contained therein); provided , that notwithstanding anything to the contrary contained herein or in any other Loan Document to the contrary, solely for the purpose of this clause (g), to the extent any of the Specified Acquisition Agreement Representations are qualified or subject to “material adverse effect”, the definition thereof shall be “Material Adverse Effect”, as defined in the Purchase Agreement.

(h) The Initial Borrower shall have provided the documentation and other information to the Collateral Agent (to the extent reasonably requested by the Collateral Agent in writing at least eight (8) Business Days prior to the Closing Date) that are required by regulatory authorities under the applicable “know-your-customer” rules and regulations, including the PATRIOT Act, in each case at least five (5) days prior to the Closing Date.

(i) Since December 29, 2013, there shall not have occurred a Material Adverse Effect (as defined in the Purchase Agreement).

Notwithstanding anything herein to the contrary, the terms of the Loan Documents shall be in a form such that they do not impair availability of the Loans on the Closing Date if the conditions set forth in Section 4.01 are satisfied or waived (it being understood that to the extent any security interest in Collateral (including the creation or perfection of any security interest) (other than (x) grants of security interests in Collateral subject to the Uniform Commercial Code that may be perfected by the filing of Uniform Commercial Code financing statements and (y) the delivery of equity certificates for certificated Equity Interests of Holdings’ Domestic Subsidiaries that are part of the Collateral) is not or cannot be provided or perfected on the Closing Date after the Borrowers’ use of commercially reasonable efforts to do so, without undue burden or expense, the delivery of such Collateral (and granting and perfecting of security interests therein) shall not constitute a condition precedent to the availability of the Loans on the Closing Date but shall be required to be delivered within 90 days after the Closing Date (or such later date as may be reasonably agreed by the Required Lenders in their sole discretion) pursuant to arrangements to be mutually agreed).

Without limiting the generality of the provisions of Section 9.04 , for purposes of determining compliance with the conditions specified in this Section 4.01 , each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Collateral Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

 

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ARTICLE V

REPRESENTATIONS AND WARRANTIES

To induce Collateral Agent and the Lenders to enter into this Agreement and to make Loans hereunder, each Loan Party represents and warrants to Collateral Agent and the Lenders, that:

5.01. Existence, Qualification and Power . Each Loan Party and each Subsidiary (a) is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business as is now being conducted and (ii) execute, deliver and perform its obligations under the Loan Documents, Closing Date Acquisition Documents and Senior Indebtedness Documents to which it is a party, and (c) is duly qualified and in good standing under the Laws of each jurisdiction where its operation or properties requires such qualification, except, in the case of clauses (b)(i) and (c), to the extent that failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

5.02. Authorization; No Contravention; Consents . The execution, delivery and performance by each Loan Party of each Loan Document to which it is a party, and the consummation of the Transactions, have been duly authorized by all necessary organizational action, and (a) do not and will not (i) contravene the terms of its Organization Documents, (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under (other than as permitted by Section 7.02 ) (x) any Contractual Obligation to which such Person is a party or (y) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject, (iii) violate any Law material to any Loan Party or Subsidiary in any material respect, except with respect to any conflict, breach, or contravention referred to in clause (a)(ii), to the extent that such conflict, breach or contravention would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or (b) do not or will not require any approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person, except for (i) filings necessary to perfect Liens on the Collateral granted by the Loan Parties in favor of the Collateral Agent for the benefit of the Lender Parties, (ii) the approvals, consents, exemptions, authorizations, actions, notices, and filings which have been duly obtained, taken, given or made and are in full force and effect or (iii) if the failure to obtain the same, take such action or give such notice could reasonably be expected to result in a Material Adverse Effect.

5.03. Binding Effect . This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to or affecting the rights and remedies of creditors or by general equitable principles.

5.04. Financial Statements; No Material Adverse Effect.

(a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as expressly noted therein; and (ii) fairly present, in all material respects, the financial condition of the Target and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein.

 

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(b) The unaudited consolidated balance sheet of the Target and its Subsidiaries dated as of November 30, 2013, and the related consolidated statements of income or operations and cash flows for the fiscal month then ended fairly present in all material respects the financial condition of the Target and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject to the absence of footnotes and to year-end audit adjustments.

(c) Since the Closing Date, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.

(d) On the Closing Date, immediately after giving effect to the Transactions, the Loan Parties and their Subsidiaries, on a Consolidated basis, are Solvent.    

5.05. Litigation . As of the Closing Date, there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of any Loan Party, threatened in writing or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against any Loan Party or any Subsidiary or against any of their properties that (a) purport to affect or pertain to this Agreement or any other Loan Document or any of the Transactions or (b) except as specifically disclosed in Schedule 5.05 , either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

5.06. No Default . No Default or Event of Default has occurred and is continuing. 

5.07. Ownership of Property; Liens.

(a) Each Loan Party and each of its Subsidiaries has good, and in the case of Real Estate, defensible title to all property (tangible and intangible) necessary to, or used in the ordinary conduct of, its business, subject to Permitted Liens and except (i) for any such properties which are immaterial to the operations of such Loan Party’s or such Subsidiary’s respective business, (ii) as may have been disposed of in compliance with the terms of this Agreement, (iii) minor defects in title that do not materially interfere with such Loan Party’s ability to conduct its business or to utilize such assets for their intended purpose and/or (iv) where the failure to have such title or other interest would not reasonably be expected to have, individually, or in the aggregate, a Material Adverse Effect.

(b) Schedule 5.07(b)(1) sets forth the address (including street address, county and state) of all Real Estate that is owned by any Loan Party as of the Closing Date.  Schedule 5.07(b)(2) sets forth the address (including street address, county and state) of all leased real property of the Loan Parties, with respect to each such lease as of the Closing Date.    

5.08. Environmental Compliance.

(a) No Loan Party or any Subsidiary (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law with respect to such Loan Party’s or

 

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Subsidiary’s operations, (ii) has become subject to a pending claim with respect to any Environmental Liability or (iii) has received written notice of any claim with respect to any Environmental Liability except, in each case of clauses (i) – (iii) above, as has not resulted, and could not, individually or in the aggregate, reasonably be expected to result, in a Material Adverse Effect.

(b) As of the Closing Date, (i) none of the properties owned or operated by any Loan Party or any Subsidiary is listed or, to the knowledge of the Loan Parties, proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list or is adjacent to any such property; (ii) there are no and, to the knowledge of the Loan Parties, never have been any underground or above-ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Loan Party or any Subsidiary; (iii) to the knowledge of the Loan Parties, there is no asbestos or asbestos-containing material on any property currently owned or operated by any Loan Party or Subsidiary; and (iv) Hazardous Materials have not been released, discharged or disposed of by any Loan Party or Subsidiary in violation of Environmental Laws or, to the knowledge of the Loan Parties, by any other Person in violation of Environmental Laws on any property currently owned or operated by any Loan Party or any Subsidiary, except in each case of clauses (i) - (iv) above, as has not resulted and could not, individually or in the aggregate, reasonably be expected to result in, a Material Adverse Effect.

(c) Except as could not individually or in the aggregate reasonably be expected to result in a Material Adverse Effect on the part of the Loan Parties and their Subsidiaries, as of the Closing Date, no Loan Party or any Subsidiary is undertaking, and no Loan Party or any Subsidiary has completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any Governmental Authority or the requirements of any Environmental Law; and all Hazardous Materials generated, used, treated, handled or stored by any Loan Party or any Subsidiary at, or transported to or from by or on behalf of any Loan Party or any Subsidiary, any property owned or operated by any Loan Party or any Subsidiary have, to the knowledge of the Loan Parties, been disposed of in a manner not, individually or in the aggregate, reasonably expected to result in a Material Adverse Effect.

5.09. Insurance and Casualty . The Loan Parties and their Subsidiaries maintain insurance with financially sound and reputable insurance companies which are not Affiliates of the Loan Parties, in such amounts, with such deductibles and covering such risks (including, without limitation, workmen’s compensation, public liability, business interruption and property damage insurance) as are customarily carried under similar circumstances by such other Persons as reasonably determined in good faith by the Borrowers. Schedule 5.09 sets forth a description of all insurance maintained by or on behalf of the Loan Parties and their Subsidiaries as of the Closing Date. As of the Closing Date, each insurance policy listed on Schedule 5.09 is in full force and effect.

 

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5.10. Taxes . Each Loan Party and each Subsidiary has filed all Federal income Tax returns and other material Tax returns and reports required to be filed, and has paid all Federal income and other material Taxes, assessments, fees and other governmental charges levied or imposed upon it or its properties, income or assets otherwise due and payable, except those which are being Properly Contested.

5.11. ERISA Compliance.

(a) Except as would not have a Material Adverse Effect each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state Laws. Except as would not have a Material Adverse Effect each employee benefit plan that is not subject to United States law (a “ Foreign Plan ”) is in compliance in all material respects with all provisions of applicable Laws.

(b) As of the Closing Date, there are no pending or, to the best knowledge of any Loan Party, threatened in writing, claims, actions or lawsuits, or action by any Person, with respect to any Plan that would have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or would have a Material Adverse Effect.

(c) Except as would not have a Material Adverse Effect: (i) no ERISA Event has occurred, and no Loan Party is aware of any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event and (ii) each Loan Party, each Subsidiary thereof and each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained. As of the most recent valuation date preceding the Closing Date for any Pension Plan maintained by a Loan Party, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher and no Loan Party knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage for any such plan to drop below 60% as of the most recent valuation date. Except as would not have a Material Adverse Effect, no Loan Party, no Subsidiary thereof nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA.

(d) As of the Closing Date, no Loan Party maintains or contributes to, or has any unsatisfied obligation to contribute to, or liability under, any active or terminated Pension Plan other than those listed on Schedule 5.11(d) hereto.

(e) As of the Closing Date, except as set forth on Schedule 5.11(e) hereto no Loan Party maintains or contributes to any Foreign Plan.

(f) Except as would not result in a Material Adverse Effect, the fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the date hereof, with respect to all current and former

 

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participants in such Foreign Plan according to the actuarial assumptions and valuations most recently used to account for such obligations in accordance with applicable generally accepted accounting principles.

5.12. Subsidiaries; Equity Interests; Capitalization . As of the Closing Date, no Loan Party and no Subsidiary of any Loan Party (a) has any Subsidiaries other than those disclosed on Schedule 5.12 (which Schedule sets forth the legal name, jurisdiction of incorporation or formation and authorized Equity Interests of each such Subsidiary), or (b) has any equity Investments in any other Person other than those specifically disclosed on Schedule 5.12 . All of the outstanding Equity Interests of each Loan Party and each Subsidiary (a) have been validly issued, are fully paid and non-assessable (if applicable) and (b) as of the Closing Date, are owned by the Persons and in the amounts specified on Schedule 5.12 free and clear of all Liens except for Permitted Liens.

5.13. Margin Regulations; Investment Company Act . No Loan Party and no Subsidiary of any Loan Party is engaged, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock. None of the Loan Parties, nor any Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.

5.14. Disclosure . No report, financial statement, certificate or other written information furnished, in each case, in writing, by or on behalf of any Loan Party or any Subsidiary (other than any Projections (defined below), budgets, estimates or other forward looking statements) and information of a general economic or industry nature) to Collateral Agent or any Lender in connection with any Loan Documents or the transactions contemplated hereby (in each case, as modified or supplemented by other information so furnished) when taken as a whole contains any material misstatement of fact or omits to state any material fact necessary to make the statements contained therein not materially misleading in light of the circumstances under which they were made, provided that, with respect to written projected financial information (“ Projections ”), furnished by or on behalf of any Loan Party or any Subsidiary in connection with the transactions contemplated hereby, each Loan Party represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time such Projections were delivered by any Loan Party to Collateral Agent or any Lender, and it being recognized by the Lenders and the Collateral Agent that such projections as to future events are not to be viewed as facts or a guarantee of financial performance and no assurance can be given that Projections will be realized and actual results may differ from the Projections and such differences may be material.

5.15. Compliance with Laws; Anti-Terrorism Laws and Foreign Asset Control Regulations.

(a) Each Loan Party and each Subsidiary is in compliance with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

 

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(b) Each Loan Party and each Subsidiary is in compliance in all material respects with, and the advances of the Loans and use of the proceeds thereof will not violate, (a) the Trading With the Enemy Act (50 U.S.C. § 1 et seq., as amended) (the “ Trading With the Enemy Act ”) or any of the foreign assets control regulations administered by the United States Treasury Department, Office of Foreign Assets Control (“ OFAC ”) (31 C.F.R., Subtitle B, Chapter V, as amended) (the “ Foreign Assets Control Regulations ”) and any other enabling legislation or executive order relating thereto (which, for the avoidance of doubt, shall include, but shall not be limited to, Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (Sept. 25, 2001)) (the “ Executive Order ”)) and/or (b) the Uniting and Strengthening America by Providing Appropriate Tools Required To Intercept And Obstruct Terrorism (USA PATRIOT) Act of 2001 (“ USA PATRIOT Act ”). None of the Loan Parties or any of their Subsidiaries is a “blocked person” as described in the Executive Order, the Trading With the Enemy Act or the Foreign Assets Control Regulations. None of the Loan Parties will use any part of the proceeds of the Loans for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977.

5.16. Labor Matters . Except as set forth on Schedule 5.16 , as of the Closing Date no Loan Party or any Subsidiary is a party to or bound by any collective bargaining agreement. There are no strikes, lockouts, slowdowns or other labor disputes against any Loan Party or any Subsidiary pending or, to the knowledge of any Loan Party, threatened in writing, in any case which, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect. As of the Closing Date, there are no representation proceedings pending or, to any Loan Party’s knowledge, threatened to be filed with the National Labor Relations Board, and no labor organization or group of employees of any Loan Party or any Subsidiary has made a pending demand for recognition. As of the Closing Date, there are no complaints, unfair labor practice charges, grievances, arbitrations, unfair employment practices charges or any other claims or complaints against any Loan Party or any Subsidiary pending or, to the knowledge of any Loan Party, threatened to be filed with any Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any employee of any Loan Party or any of its Subsidiaries which individually or in the aggregate would reasonably be expected to result in a Material Adverse Effect. The consummation of the transactions contemplated by the Loan Documents will not give rise to any right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which any Loan Party or any of its Subsidiaries is bound.

5.17. Brokers . No broker or finder (except for those whose fees and expenses have been paid in full on the Closing Date) brought about the obtaining, making or closing of the Loans or transactions contemplated by the Loan Documents.

5.18. Intellectual Property . The Loan Parties own, possess, or have the right to use all necessary Intellectual Property to conduct their businesses, except for any such failure to so own, possess or have the right to use that could not reasonably be expected to have a Material Adverse Effect.

 

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ARTICLE VI

AFFIRMATIVE COVENANTS

So long as any Lender shall have any Commitment hereunder or any Loan Obligation (other than contingent indemnification claims for which no claim has been asserted) hereunder shall remain unpaid or unsatisfied, each Loan Party shall, and shall cause each Subsidiary to:

6.01. Financial Statements . Deliver to each Lender:

(a) within 120 days after the end of each Fiscal Year (in the case of the Fiscal Year ending December 31, 2013, 150 days), a consolidated balance sheet of Holdings and its Subsidiaries (in the case of the Fiscal Year ending December 31, 2013, of J.A. Cosmetics and its Subsidiaries) as of the end of such Fiscal Year, and the related consolidated statements of income or operations, and cash flows for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an accounting firm of nationally recognized standing or otherwise reasonably acceptable to the Required Lenders, it being agreed and understood that as of the Closing Date, McGladrey LLP is acceptable to the Required Lenders (the “ Auditor ”), which report and opinion shall not be subject to any “going concern” or other qualification or exception or any qualification or exception as to the scope of such audit (except for qualifications relating to changes in accounting principles practice reflecting changes in GAAP and required or approved by such Auditor or relating to the financial statements for the fiscal year ending immediately prior to the final stated maturity of the Loans or Senior Indebtedness, applicable, solely because of the impending maturity of the Loans or Senior Indebtedness, as applicable) and shall state that such financial statements fairly present in all material respects the financial condition of Holdings and its Subsidiaries as of the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP;

(b) within 45 days after the end of each Fiscal Quarter of each Fiscal Year, commencing with the Fiscal Quarter ending March 31, 2014 (in the case of each of the Fiscal Quarters ending March 31, 2014 and June 30, 2014, 60 days), (i) unaudited consolidated balance sheet of Holdings and its Subsidiaries as of the end of such Fiscal Quarter and the related consolidated statements of income or operations and cash flows for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, setting forth in each case in comparative form figures for the preceding Fiscal Year and the financial projections for the current Fiscal Year (or, in the case of quarterly financial statements delivered with respect to the Fiscal Quarters ending March 31, 2014, June 30, 2014, September 30, 2014 and December 31, 2014, to the corresponding period set forth in the financial model delivered to the Lenders prior to the Closing Date) certified by a

 

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Responsible Officer of Borrower Agent to the effect that such statements fairly present in all material respects in accordance with GAAP the financial condition of Holdings and its Subsidiaries as of the dates indicated and the results of their operations for the periods indicated, subject to year-end adjustments and the absence of footnotes and (ii) a flash report of cash balances of Foreign Subsidiaries as of the last day of such Fiscal Quarter; and

(c) within 60 days after the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2014, annual financial projections of Holdings and its Subsidiaries on a consolidated basis, of quarterly consolidated balance sheets and statements of income or operations and cash flows, a budget, including assumptions made in the build-up of such budget, of the Loan Parties (and their Subsidiaries) consolidated financial performance for the forthcoming Fiscal Year on a quarterly basis.

6.02. Other Information . Deliver to each Lender:

(a) concurrently with delivery of financial statements under Section 6.01(a) and with the financial statements under Section 6.01(b) , a Compliance Certificate executed by a Responsible Officer of Borrower Agent which certifies compliance with Section 7.12 and, solely with respect to the financial statements delivered under Section 6.01(b) , (i) a management report (x) describing the operations and financial condition of Holdings and its Subsidiaries for the fiscal period covered by such financial statements and the portion of the current Fiscal Year then elapsed and (y) discussing the reasons for any significant variations as between the fiscal period covered and the portion of the Fiscal Year then elapsed and the same periods during the immediately preceding Fiscal Year, and as between such periods and the same periods included in the financial projections delivered pursuant to Section 6.01(c) , and (ii) a description of any material change in accounting policies or financial reporting practices by any Loan Party or any Subsidiary (if any), all such information in the preceding clauses (i) and (ii) to be presented in reasonable detail;

(b) within ten (10) Business Days of delivery of financial statements under Section 6.01(a) , an Excess Cash Flow Certificate executed by a Responsible Officer of Borrower Agent for such Fiscal Year (other than with respect to the Fiscal Year ending December 31, 2013);

(c) promptly after the public filing thereof, copies of all annual, regular, periodic and special reports and registration statements which Holdings, any Borrower or any Subsidiary may file or be required to file with the SEC under Section 13 or 15(d) of the Exchange Act, and not otherwise required to be delivered to Collateral Agent pursuant hereto;

(d) [Reserved];

(e) [Reserved];

(f) [Reserved];

 

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(g) promptly, such additional information regarding the business, financial or organizational affairs of any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents (excluding information subject to confidentiality obligations in favor of third parties which are not entered into in contemplation of this clause (g) or attorney-client privilege, constituting attorney work product or trade secrets or proprietary information or otherwise prohibited by law from disclosure), as Collateral Agent or any Lender through the Collateral Agent may from time to time reasonably request; and

(h) reasonably promptly from time to time, without duplication of any notices, reports or certificates delivered pursuant to this Agreement and the other Loan Documents, (i) with respect to this clause (i), the Loan Parties shall use commercially reasonable efforts to deliver copies of all material reports and other written information delivered to the Senior Lender Agent pursuant to the Senior Loan Agreement (without duplication of any such reports or information required to be delivered to Collateral Agent and the Lenders pursuant to Section 6.02 ), (ii) copies of all notices of the occurrence of a “Default”, an “Event of Default” or other event described by terms of similar import under the Senior Indebtedness Documents, (iii) notice of any cure or waiver of any “Default”, “Event of Default” or other event described by terms of similar import under the Senior Indebtedness Documents or any reservation of rights notice, and (iv) complete copies of, any amendments, consents, waivers, or forbearances to, or with respect to the Senior Indebtedness Documents.

6.03. Notices . Promptly after a Responsible Officer of any Loan Party becomes aware thereof notify Collateral Agent:

(a) of the occurrence of any Default or Event of Default;

(b) after the receipt thereof, a copy of any notice of any non-compliance with any applicable law, regulation or guideline relating to Holdings or any Subsidiary, or its business, including, without limitation, the FDA’s applicable Good Manufacturing Practice regulations, complaint handling regulations and requirements for cosmetic or “over the counter” drug products, which non-compliance would reasonably be expected to have a Material Adverse Effect;

(c) the occurrence of any ERISA Event that would reasonably be expected to have a Material Adverse Effect;

(d) after the receipt thereof, a copy of (i) any notice, complaint or inquiry from the FDA or any other Government Authority relating to Holdings or any Subsidiary, or its business, asserting that the manufacture, distribution, marketing or sale of the products of any Loan Party or any of its Subsidiaries is not in compliance with any applicable requirements of law, (ii) any notice from the FDA or any other Governmental Authority limiting, suspending or revoking any registration of the Loan Parties or their Subsidiaries, or (iii) any written notice asserting that a product of any Loan Party or any of its Subsidiaries has been or is being seized, withdrawn, recalled, detained, or subject to a suspension of manufacturing by the FDA or any other Governmental Authority, or any

 

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written notice of the commencement, or the threatened commencement, of any proceedings in the United States or any other applicable jurisdiction seeking the withdrawal, recall, suspension, import detention, or seizure of any product of any of the Loan Parties or their Subsidiaries except, in each case of (i) through (iii) above, where such non-compliance or action would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; and

(e) the occurrence of any actual or threatened investigation, inquiry, inspection or administrative or judicial action, hearing, or enforcement proceeding by the FDA or any other Governmental Authority, against any Loan Party or any Subsidiary in connection with legal or regulatory non-compliance, except in each case, where such non-compliance or action would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible Officer of Borrower Agent setting forth details of the occurrence referred to therein and stating what action Borrowers have taken and propose to take with respect thereto.

6.04. Payment of Taxes and Assessments . Pay and discharge as the same shall become due and payable, all Federal, state and other tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being Properly Contested or unless the failure to so pay and discharge would not be reasonably be expected to have a Material Adverse Effect.

6.05. Preservation of Existence, Etc . (a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization or formation except in a transaction permitted by Section 7.04 or  7.05 ; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary in the normal conduct of its business except where the failure to do so would not reasonably be expected to have a Material Adverse Effect; (c) preserve or renew all of its registered Intellectual Property and rights to use Intellectual Property necessary in the normal conduct of its business except where the failure to take such action would not reasonably be expected to have a Material Adverse Effect; and (d) keep in full force and effect each License the expiration or termination of which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect (each a “ Material License ”).

6.06. Maintenance of Properties . Maintain, preserve and protect all of its tangible properties (other than insignificant properties) and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear and casualty and condemnation excepted, except (i) to the extent that, in the reasonable business judgment of such Person, any such property is no longer necessary for the proper conduct of the business of such person or (ii) where the failure to do so would not reasonably be expected to have a Material Adverse Effect.

 

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6.07. Maintenance of Insurance; Business Interruption Proceeds.

(a) Maintain with financially sound and reputable insurance companies that are not Affiliates of the Loan Parties, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business and operating in the same or similar locations or as is required by applicable Law, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons as determined by management of the Loan Parties in their reasonable good faith business judgment.

(b) (i) Promptly after the expiration or cancellation of any insurance policies evidenced by the most recent insurance certificates delivered to the Collateral Agent, deliver to Collateral Agent certificates (in a form substantially similar to the insurance certificates delivered to the Collateral Agent in connection with the consummation of the Transaction) setting forth the nature and extent of all insurance maintained by the Loan Parties and (ii) cause each issuer of an insurance policy (excluding directors and officers policies, workers’ compensation policies and business interruption insurance policies) to a Loan Party to provide Collateral Agent with a customary endorsement showing, among other things, Collateral Agent as a loss payee with respect to each applicable policy of property or casualty insurance and naming Collateral Agent as an additional insured with respect to each applicable policy of liability insurance; provided , that with respect to any insurance certificates required to be delivered on the Closing Date with respect to the Initial Borrower and its Subsidiaries, the Loan Parties shall have thirty (30) days after the Closing Date (or such longer period as agreed to by the Required Lenders in their sole discretion), to deliver or cause to be delivered, such required insurance certificates to Collateral Agent in form and substance reasonably satisfactory to the Required Lenders; provided , further , that with respect to any endorsements required to be delivered on the Closing Date with respect to the Initial Borrower and its Subsidiaries, the Loan Parties shall have ninety (90) days after the Closing Date (or such longer period as agreed to by the Required Lenders in their sole discretion), to deliver or cause to be delivered, such required endorsements to Collateral Agent in form and substance reasonably satisfactory to the Required Lenders.

(c) Subject to the Intercreditor Agreement, unless Borrower Agent provides Collateral Agent with evidence of the continuing insurance coverage required by this Agreement, Collateral Agent may (but shall not be obligated to) purchase insurance at Borrowers’ expense to protect Collateral Agent’s and Lenders’ interests in the Collateral. This insurance may, but need not, protect Borrowers’ and each other Loan Party’s interests. The coverage that Collateral Agent purchases may, but need not, pay any claim that is made against a Borrower or any other Loan Party in connection with the Collateral. Borrowers may later cancel any insurance purchased by Collateral Agent, but only after providing Collateral Agent with evidence that Loan Parties have obtained the insurance coverage required by this Agreement. If Collateral Agent purchases insurance for the Collateral, as set forth above, Borrowers will be responsible for the costs of that insurance, including interest and any other charges that may be imposed with the placement of the insurance, until the effective date of the cancellation or expiration of the insurance and the costs of the insurance may be added to the principal amount of the Loans owing hereunder.

 

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6.08. Compliance with Laws Generally; Environmental Laws . Except in each case as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (a) comply with the requirements of all Laws (including without limitation all applicable Environmental Laws) and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which such requirement of Law or order, writ, injunction or decree is being Properly Contested; (b) maintain its Real Estate in compliance with all Environmental Laws; (c) obtain and renew all environmental permits required under requirements of Law for its operations and properties; and (d) implement any and all investigation, remediation, removal and response actions that are required to comply with Environmental Laws pertaining to the presence, generation, treatment, storage, use, disposal, transportation or release of any Hazardous Materials on, at, in, under or about any of its Real Estate.

6.09. Books and Records . Maintain proper books of record and account, in which full, true and correct entries, in all material respects, for the Loan Parties taken as a whole and for the Loan Parties and their Subsidiaries taken as a whole, in conformity with GAAP consistently applied (or such other customary standard in such foreign jurisdiction where a Foreign Subsidiary does business) shall be made.

6.10. Inspection Rights; Meetings with Collateral Agent.   Permit Collateral Agent or its designees or representatives from time to time, subject to reasonable prior written notice and during normal business hours, to conduct inspections of the operations and properties of the Loan Parties and Subsidiaries and to examine its organizational, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers and auditors; provided that representatives of Borrower Agent shall be given the opportunity to participate in any discussions with the auditors. Collateral Agent shall not have any duty to any Loan Party to share any results of any such inspection, examination with any Loan Party. The Loan Parties acknowledge that all reports are prepared by or for Collateral Agent and Lenders for their purposes, and Loan Parties shall not be entitled to rely upon them. Notwithstanding anything to the contrary in this Section 6.10 , (i) none of the Loan Parties or any Subsidiary will be required to disclose or permit the inspection or discussion of, any document, information or other matter (a) that constitutes non-financial trade secrets or non-financial proprietary information, (b) in respect of which disclosure to the Collateral Agent or any Lender (or their respective representatives or contractors) is prohibited by Law or (c) that is subject to attorney client or similar privilege or constitutes attorney work product and (ii) absent an Event of Default that has occurred and is continuing, the Collateral Agent shall not exercise such rights more often than once per calendar year, which visit or inspection shall be at the Borrowers’ expense.

6.11. Compliance with ERISA . Do, and cause each of its ERISA Affiliates to do, each of the following, except if a Material Adverse Effect would not result from the failure to do so: (a) maintain each Plan in compliance in all material respects with the applicable provisions of ERISA, the Code and other applicable Laws; (b) cause each Plan which is qualified under section 401(a) of the Code to maintain such qualification; (c) cause each Foreign Plan to

 

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maintain any required approvals by any Governmental Authority regulating such Foreign Plan, (d) make all required contributions to any Plan, and (e) make all required contributions and payments to any Foreign Plans.

6.12. Further Assurances .

(a) At Borrowers’ cost and expense, upon reasonable request of Required Lenders (or within thirty (30) days (or such longer period of time as the Required Lenders may agree in their sole discretion) of the consummation of any Permitted Acquisition pursuant to which a Loan Party or Subsidiary has acquired all or substantially all of the assets of a Person (or all or substantially all of a line or lines of business of a Person)), duly execute and deliver or cause to be duly executed and delivered, to Collateral Agent such further instruments, documents, certificates and financing and continuation statements, and do and cause to be done such further acts that may be reasonably necessary in the reasonable opinion of Collateral Agent or the Required Lenders to grant, perfect and maintain the validity, effectiveness and priority of any of the Liens required by the Security Instruments and the other Loan Documents in accordance with all applicable requirements of Law.

(b) Within thirty (30) days (or such longer period of time as the Required Lenders may agree in their sole discretion) of the acquisition or creation of any Domestic Subsidiary (other than an Excluded Domestic Subsidiary or other Excluded Subsidiary) or, pursuant to a Permitted Acquisition and in accordance with clause (a) of the definition thereof, the merger of any Loan Party or Subsidiary with and into any Person, with such Person as the surviving entity of such merger, cause to be delivered to Collateral Agent each of the following, as applicable, in each case, consistent with the documents delivered on the Closing Date or otherwise reasonably acceptable to Collateral Agent and, as applicable, duly executed by the parties thereto: (i) a joinder agreement with respect to this Agreement, together with other Loan Documents reasonably requested by Collateral Agent or the Required Lenders, including all Security Instruments and other documents reasonably requested to establish and preserve the Lien of Collateral Agent in all Collateral of such Domestic Subsidiary subject to any limitations on Collateral set forth in the Loan Documents; (ii) Uniform Commercial Code financing statements, Documents and original collateral (including pledged Equity Interests, other securities and Instruments) and such other documents and agreements as may be reasonably required by Collateral Agent or the Required Lenders, all as necessary to establish and maintain a valid, perfected Lien under U.S. law in all Collateral in which such Domestic Subsidiary has an interest consistent with the terms of the Loan Documents executed on the Closing Date (and subject to any limitations on Collateral set forth therein); (iii) upon the reasonable request of the Required Lenders, an opinion of counsel to such Domestic Subsidiary addressed to Collateral Agent and the Lenders, in form and substance reasonably acceptable to the Required Lenders and substantially similar to those opinions of counsel delivered on the Closing Date; and (iv) current copies of the Organization Documents of such Domestic Subsidiary resolutions of the Board of Directors (and, if required by such Organization Documents or applicable law, of the shareholders, members or partners) of such Person authorizing the actions and the execution and delivery of documents described in this Section 6.12 , all certified by an appropriate

 

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officer. For the avoidance of doubt, any Foreign Subsidiary, Excluded Domestic Subsidiary or other Excluded Subsidiary shall not be required to guarantee or pledge its assets for any obligations of a Loan Party; provided however , the shareholder or shareholders of any such first tier Foreign Subsidiary, Excluded Domestic Holdco or Excluded Domestic Subsidiary, as applicable, shall pledge 65% of all classes of Equity Interests of such first tier Foreign Subsidiary, Excluded Domestic Holdco or Excluded Domestic Subsidiary, as applicable, to support the Obligations of such Loan Parties (and no other Equity Interests of a Foreign Subsidiary, Excluded Domestic Holdco or Excluded Domestic Subsidiary shall be pledged).

(c) Within ninety (90) days (or such longer period of time as the Required Lenders may permit) of the acquisition by any Loan Party of any fee owned Real Estate with an individual fair market value in excess of $2,000,000, deliver or cause to be delivered to Collateral Agent, with respect thereto, in each case reasonably acceptable to the Required Lenders, a mortgage or deed of trust, as applicable, and an opinion of Borrowers’ counsel with respect thereto, an ALTA lender’s title insurance policy insuring Collateral Agent’s second priority Lien (subject to Permitted Liens), a current ALTA survey, certified to Collateral Agent by a licensed surveyor, a certificate from a national certification agency indicating whether such Real Estate is located in a special flood hazard area (and, if applicable, flood insurance) and an environmental audit (to the extent already prepared).

6.13. Use of Proceeds . The Borrowers shall use the proceeds of the Loans solely as follows: (a) first, to refinance on the Closing Date, existing Indebtedness of the Target and then to pay on the Closing Date a portion of the consideration for the Closing Date Acquisition, (b) to pay fees, costs and expenses of the Transactions and fees, costs and expenses required to be paid pursuant to Section 4.01 , and (c) payment of fees and expenses related to the foregoing.

6.14. Control Agreements . Each Loan Party shall enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements with respect to each deposit, securities, commodity or similar account maintained by such Person (other than (a) zero balance accounts, (b) any payroll account so long as the Loan Parties do not deposit or maintain funds in any such payroll account in excess of amounts necessary for the purpose of funding up to two periods of payroll liabilities (including payroll taxes) and amounts necessary to satisfy minimum balance requirements, (c) petty cash accounts, amounts on deposit in which do not exceed $350,000 in the aggregate at any one time and (d) withholding tax, benefits, trust, escrow or fiduciary accounts, in each case, which hold funds solely (i) for taxes required to be collected, remitted or withheld (including, without limitation, federal and state withholding taxes (including the employer’s share thereof)) or (ii) that are benefits accounts or held on behalf of another Person or as an escrow or fiduciary for such Person, as applicable (such excluded accounts, “ Excluded Accounts ”)) as of and after the Closing Date. It is agreed and understood that the Loan Parties shall have until the date that is (a) ninety (90) days following the Closing Date (or such later date as may be agreed to by the Required Lenders in their sole discretion) to comply with the provisions of this Section 6.14 with regard to accounts (other than Excluded Accounts) of the Loan Parties existing on the Closing Date.

 

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6.15. Collateral Access Agreements . Each Loan Party shall use commercially reasonable efforts to obtain, (a) within ninety (90) days after the Closing Date, a landlord waiver or collateral access agreement from the respective lessors of each of the following leased properties (i) the Borrowers’ distribution center located at 45 Mayhill Street, Saddle Brook, New Jersey 07663 and (ii) the corporate headquarters of any Borrower (excluding, for the avoidance of doubt, the corporate headquarters of the Initial Borrower), which agreements shall be reasonably satisfactory in form and substance to the Required Lenders and (b) within ninety (90) days after the acquisition of, or execution and delivery of a lease with respect to, leased locations acquired after the Closing Date where any Collateral in excess of $2,500,000 or which otherwise constitute corporate headquarters, a landlord waiver or collateral access agreement from the respective lessors of such leased locations, which agreements shall be reasonably satisfactory in form and substance to the Required Lenders; provided , that it being understood and agreed that no Loan Party shall be required to take any actions to obtain a landlord waiver or collateral access agreement with respect to a leased location described in clause (b) above unless the applicable Loan Party reasonably believes that such landlord waiver or collateral access agreement is reasonably obtainable without paying any fees to the applicable lessor and without incurring excessive costs and expenses within ninety (90) days of requesting such a landlord waiver or collateral access agreement. It is agreed and understood that the Loan Parties shall have until the date that is ninety (90) days following the Closing Date (or such later date as may be agreed to by Senior Lender Agent in its sole discretion) to use commercially reasonable efforts to comply with the provisions of this Section 6.15 with regard to the distribution center specified in clause (a) above and the corporate headquarters of the Borrowers as of the Closing Date; provided that in no event shall a Default or Event of Default occur as a result of not delivering any such collateral access agreement so long as the Loan Parties used commercially reasonable efforts to obtain the same within the specific time frame.

6.16. Joinder Agreement . Prior to 11:59 p.m. (New York City time) on the Closing Date, after giving effect to the Closing Date Acquisition, Initial Borrower shall cause J.A. Cosmetics to join this Agreement as a “Borrower” and each Domestic Subsidiary (other than Excluded Subsidiaries) of J.A. Cosmetics to join this Agreement as a “Borrower”, in each case, by executing and delivering to Collateral Agent a Joinder Agreement.

6.17. [Reserved] .

6.18. [Reserved] .

6.19. Amendments to Certain Agreements .

Upon entering into any amendment or other modification of the Senior Loan Agreement or any extension, renewal, replacement, refinancing or any other form of refunding of the Senior Loan Agreement (a “Replacement Loan Agreement” ) or any amendment or other modification of any Replacement Loan Agreement, in any such case (each being a “Modifying Agreement” ) pursuant to which covenants or events of default are changed or added (or having the same effect as such a change or addition), the Loan Parties shall (1) promptly, and in any event within three Business Days provide written notice thereof to Collateral Agent and each Lender describing such Modifying Agreement in reasonable detail and (2) offer to enter into an amendment of this Agreement within five Business Days of consummating such Modifying

 

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Agreement to make corresponding changes or additions herein in respect of covenants and events of default; provided , however , that, as to covenants which set forth any requisite ratio or compliance amount, such ratio and compliance amount may be less onerous upon the Loan Parties in the same proportion as comparable provisions are less onerous hereunder on the Closing Date.

ARTICLE VII

NEGATIVE COVENANTS

So long as any Lender shall have any Commitment hereunder or any Loan Obligation (other than contingent indemnification claims for which no claim has been asserted) hereunder shall remain unpaid or unsatisfied, no Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly:

7.01. Indebtedness . Create, incur, assume or suffer to exist any Indebtedness or issue any Disqualified Equity Interest, except:

(a) the Obligations;

(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.01 and any Permitted Refinancing thereof;

(c) (i) Guarantees by any Loan Party in respect of Indebtedness otherwise permitted hereunder of any other Loan Party; provided that any Guarantee of Indebtedness that is required to be subordinated to the Obligations shall be subordinated to the Obligations on terms at least as favorable to Collateral Agent and the Lenders as such subordinated Indebtedness and (ii) Guarantees by a Subsidiary of Holdings which is not a Loan Party in respect of Indebtedness otherwise permitted hereunder of another Subsidiary of Holdings which is not a Loan Party;

(d) obligations (contingent or otherwise) of the Loan Parties and their Subsidiaries existing or arising under any Swap Contract, provided that such obligations are (or were) required hereunder or entered into by such Person in the Ordinary Course of Business and not for purposes of speculation;

(e) Indebtedness in respect of Capital Leases and purchase money obligations within the limitations set forth in Section 7.02(i) and Permitted Refinancings thereof; provided , however , that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $2,875,000;

(f) the endorsement of negotiable instruments for deposit or collection or similar transactions in the Ordinary Course of Business;

(g) Indebtedness of (i) any Loan Party owing to any other Loan Party, (ii) any Subsidiary that is not a Loan Party owing to any other Subsidiary that is not a Loan Party, (iii) any Subsidiary that is not a Loan Party owing to any Loan Party; provided that (A) the aggregate principal amount of all such Indebtedness under this clause (iii) of all such Subsidiaries (together with Investment permitted under Section 7.03(c)(iv) ) shall not

 

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exceed the greater of (i) $5,750,000 and (ii) 17.25% of Adjusted Consolidated EBITDA for the four Fiscal Quarter period most recently ended as to which financial statements were required to be delivered pursuant to this Agreement, in the aggregate at any time outstanding and (B) such Indebtedness shall not be evidenced by promissory notes unless such notes are delivered to the Collateral Agent (or the collateral agent under the Senior Indebtedness Documents) and pledged to Collateral Agent pursuant to the Security Agreement, and (iv) any Loan Party owing to any Subsidiary that is not a Loan Party, so long as such Indebtedness is subordinated in right of payment to the prior Payment in Full of the Obligations pursuant to subordination provisions reasonably acceptable to the Required Lenders;

(h) (i) surety bonds, performance bonds or custom bonds or any guarantees in connection with the foregoing, in each case, incurred in the Ordinary Course of Business and (ii) appeal bonds in connection with the enforcement of rights or claims of Borrower or any Subsidiary in connection with judgments that do not result in an Event of Default;

(i) Indebtedness (i) owing to insurance carriers and incurred to finance insurance premiums of any Loan Party or any Subsidiary or (ii) consisting of take or pay obligations contained in supply agreements, in the case of each of the foregoing clauses (i) and (ii), incurred in the Ordinary Course of Business;

(j) (i) unsecured deferred purchase price obligations in the form of earnouts and other similar contingent obligations and (ii) unsecured seller debt subject to customary subordination terms as reasonably determined by the Borrowers, which shall, in any event, provide that any such unsecured seller debt shall not be payable while an Event of Default has occurred and is continuing, in the case of each of the foregoing clauses (i) and (ii), incurred in connection with a Permitted Acquisition, solely to the extent permitted pursuant to the defined term “Permitted Acquisition” or other Investment permitted hereunder and;

(k) Indebtedness in respect of cash management obligations, netting services, overdraft protections and other like services, in each case incurred in the Ordinary Course of Business;

(l) Senior Debt (as defined in and permitted under the Intercreditor Agreement as in effect as of the Closing Date unless any amendment thereto is consented to by the Loan Parties);

(m) Indebtedness representing any taxes, assessments or governmental charges to the extent (i) the same are being Properly Contested or (ii) that payment thereof shall not at any time be required to be made in accordance with Section 6.04 hereof;

(n) Indebtedness of Borrowers or any Subsidiary which may be deemed to exist in connection with agreements providing for indemnification, incentive, non-compete, purchase price adjustments and similar obligations in connection with the disposition of assets in the Ordinary Course of Business and in accordance with the requirements of this Agreement, so long as any such obligations are those of the Person making the respective sale, and are not guaranteed by any other Person except as permitted hereunder;

 

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(o) Indebtedness assumed in connection with any Permitted Acquisition or other investment permitted under Section 7.03(z) , provided that (x) such Indebtedness (i) was not incurred in contemplation of such Permitted Acquisition or such other investment, (ii) is secured only by the assets acquired in the applicable Permitted Acquisition or other investment (including any acquired Equity Interests), (iii) the only obligors with respect to any Indebtedness incurred pursuant to this clause (o) shall be those Persons who were obligors of such Indebtedness prior to such Permitted Acquisition or applicable investment, (y) both immediately prior and after giving effect thereto no Event of Default shall exist or result therefrom and (z) the aggregate amount of all such Indebtedness outstanding at any one time does not exceed $5,750,000;

(p) unsecured Indebtedness representing deferred compensation, deferred compensation plans or other similar arrangements to employees of the Borrowers (or any direct parent of a Borrower) and their Subsidiaries, in each case, incurred in the Ordinary Course of Business;

(q) unsecured Indebtedness of Holdings to current or former officers, directors, partners, managers, consultants and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings (or any direct or indirect parent thereof) permitted by Section 7.06 ;

(r) Indebtedness incurred by Holdings, the Borrowers or any of their Subsidiaries in a Permitted Acquisition or any other Investment expressly permitted hereunder, in each case to the extent constituting reasonable and customary indemnification obligations or obligations in respect of working capital or other similar purchase price adjustments;

(s) Indebtedness incurred by the Borrowers or any of their Subsidiaries in respect of letters of credit, bank guarantees, banker’s acceptances, warehouse receipts or similar instruments issued or created in the Ordinary Course of Business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;

(t) [Reserved];

(u) Indebtedness of Foreign Subsidiaries which is secured by the assets of any Foreign Subsidiary as permitted under Section 7.02(z) , in an aggregate principal amount not to exceed $11,500,000 at any time outstanding;

(v) unsecured subordinated Indebtedness, provided that (i) any such subordinated Indebtedness shall have a final maturity on or later than the final maturity of the Loans and a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Loans, (ii) such subordinated Indebtedness shall be unsecured and shall only be guaranteed by Holdings or the Subsidiaries that are otherwise

 

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guarantors of the Loans at the time any such subordinated Indebtedness is incurred, (iii) such subordinated Indebtedness shall be subordinated in right of payment to the Obligations on terms reasonably satisfactory to the Required Lenders, (iv) all of the other terms (other than interest rates, premiums, call protection and fees) and conditions governing such subordinated Indebtedness shall be substantially identical to or less favorable to the lenders providing such subordinated Indebtedness than those applicable to the Loans but, in any case, no scheduled principal payments, redemptions or sinking fund or like payments of any such unsecured subordinated Indebtedness shall be required prior to the date at least 6 months after the Term Loan Maturity Date (it being agreed that such terms and conditions shall be less favorable to at least the same extent as the corresponding provisions in the Agreement are less favorable than such provisions in the Senior Indebtedness Documents), (v) no Event of Default shall exist immediately before and after giving effect to the incurrence of such unsecured subordinated Indebtedness and the use of proceeds therefrom on such date, and (vi) immediately before and after giving effect to the incurrence of such unsecured subordinated Indebtedness and the use of proceeds therefrom on such date, (x) the Consolidated Total Net Leverage Ratio of Holdings and its Subsidiaries as of the end of the Fiscal Quarter most recently ended as to which financial statements were required to be delivered pursuant to this Agreement shall be equal to or less than 5.18 to 1.00, (y) the Consolidated Senior Net Leverage Ratio of Holdings and its Subsidiaries as of the end of the Fiscal Quarter most recently ended as to which financial statements were required to be delivered pursuant to this Agreement shall be equal to or less than 3.74 to 1.00 and (z) the Loan Parties shall be in compliance on a Pro Forma Basis with the requirements of the covenants set forth in Section 7.12(a) and (b) (any such unsecured subordinated Indebtedness, “ Other Subordinated Indebtedness ”);

(w) additional Indebtedness in an aggregate outstanding principal amount at any one time outstanding not to exceed $8,625,000;

(x) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (w) above;

(y) interest and fees payable in kind or accrued on any of the foregoing; and

(z) unsecured and non-interest bearing obligations of Holdings arising from the exercise of the Seller Put Option.

For purposes of determining compliance with any restriction on the incurrence of Indebtedness, the principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to extend, replace, refund, refinance, renew or defease other Indebtedness denominated in a foreign currency, and such extension, replacement, refunding, refinancing, renewal or defeasance would cause the applicable restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance, such restriction shall be

 

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deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased.

7.02. Liens . Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following (“ Permitted Liens ”):

(a) Liens in favor of Collateral Agent pursuant to any Loan Document;

(b) Liens existing on the date hereof and set forth on Schedule 7.02 and any renewals, extensions, modifications or replacements thereof; provided , with respect to any renewals, extensions, modifications or replacements thereof, (i) such Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.01(b) , and (B) proceeds and products thereof; and (ii) the renewal, extension or refinancing of the obligations secured or benefited by such Liens is permitted by Section 7.01(b) ;

(c) Liens for taxes, duties, levies, imposts, deductions, assessments or other governmental charges, not yet due and payable or which are being Properly Contested or otherwise not required to be paid pursuant to Section 6.04 ;

(d) Liens of carriers, warehousemen, processors, mechanics, materialmen, repairmen, landlords or other like Liens imposed by Law or arising in the Ordinary Course of Business which are not overdue for a period of more than 90 days or which are being Properly Contested;

(e) Liens, pledges or deposits in the Ordinary Course of Business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA or a foreign benefit law;

(f) Liens on deposits to secure the performance of bids, trade contracts and leases, statutory obligations, surety bonds, performance bonds and other obligations (other than obligations for the payment of borrowed money) of a like nature incurred in the Ordinary Course of Business;

(g) Liens consisting of imperfections of title and easements, rights-of-way, covenants, consents, reservations, encroachments, variations and zoning and other similar restrictions, charges, encumbrances or title defects affecting real property which, in the aggregate do not materially detract from the value of the property subject thereto or materially interfere with the use by the Loan Parties or their Subsidiaries in the Ordinary Course of Business of the property subject to such encumbrance;

(h) Liens securing judgments not constituting an Event of Default under Section 8.01 or securing appeal or other surety bonds related to such judgments;

 

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(i) Liens securing Indebtedness permitted under Section 7.01(e) ; provided that such Liens do not at any time encumber any property other than the property financed by such Indebtedness and replacements thereof and additions and accessions to such property and the proceeds and the products thereof and customary security deposits;

(j) licenses, sublicensees, operating leases or subleases (and precautionary UCC filings with respect thereto) granted by or to the Loan Parties or any Subsidiary to or from any other Person in the Ordinary Course of Business and any renewals, extensions, modifications or replacements thereof;

(k) Liens in favor of collecting banks (including those arising under Section 4-210 of the UCC) arising by operation of law;

(l) Liens (including the right of setoff) in favor of a bank or other depository institution arising as a matter of law encumbering deposits;

(m) Liens in favor of customs and revenue authorities to secure payment of customs duties in connection with the importation of goods and arising in the Ordinary Course of Business;

(n) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto to the extent permitted under Section 7.01(i) and Liens arising out of deposits of cash and Cash Equivalents, security deductibles, self-insurance, co-payment, co-insurance, retentions and similar obligations to providers of insurance in the Ordinary Course of Business;

(o) other Liens as to which the aggregate amount of the obligations secured thereby does not exceed $5,750,000 at any time outstanding;

(p) Liens (i) on cash advances in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 7.03(f) , (l) , or (z) to be applied against the purchase price for such Investment and (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 7.05 , in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien;

(q) Liens in favor of Holdings, the Borrowers or any Subsidiary that is a Loan Party securing Indebtedness permitted under Section 7.01(g) ;

(r) Liens existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Subsidiary, in each case after the date hereof; provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Subsidiary, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and other than after-acquired property subjected to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to

 

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apply to any property to which such requirement would not have applied but for such acquisition), and (iii) the Indebtedness secured thereby is permitted under Section 7.01(o) ;

(s) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by the Borrowers or any Subsidiaries in the Ordinary Course of Business;

(t) Liens that are customary contractual rights of set-off (i) relating to the establishment of depository relations with banks or other financial institutions in the Ordinary Course of Business, (ii) relating to pooled deposit or sweep accounts of the Borrowers or any Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrowers or Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the Borrowers or any Subsidiary in the Ordinary Course of Business;

(u) Liens arising from precautionary Uniform Commercial Code financing statement filings;

(v) Liens on specific items of inventory or other goods and the proceeds thereof securing such Person’s obligations in respect of documentary letters of credit issued for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods in the Ordinary Course of Business;

(w) ground leases in respect of real property on which facilities owned or leased by the Borrowers or any Subsidiaries are located;

(x) Liens on property of a Subsidiary that is not a Loan Party securing Indebtedness of another Subsidiary that is not a Loan Party permitted to be incurred by Section 7.01 ;

(y) Liens solely on any cash earnest money deposits made by the Borrowers or any of their Subsidiaries in connection with any letter of intent or purchase agreement for an Acquisition or other Investment that would be permitted hereunder;

(z) Liens on the assets of Foreign Subsidiaries securing Indebtedness permitted by Section 7.01(u) ; and

(aa) Liens securing Senior Debt (as defined in and permitted under the Intercreditor Agreement as in effect as of the Closing Date unless any amendment thereto is consented to by the Loan Parties).

7.03. Investments . Make any Investments, except:

(a) Investments held by the Loan Parties and their Subsidiaries in the form of Cash Equivalents;

 

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(b) loans and advances to officers, directors and employees of the Loan Parties and Subsidiaries made in the Ordinary Course of Business in an aggregate amount at any one time outstanding not to exceed $2,300,000;

(c) (i) Investments by the Loan Parties and their Subsidiaries in their respective Subsidiaries solely to the extent outstanding on the date hereof, (ii) additional Investments by a Loan Party in or to another Loan Party (in the case of Investments in or to Holdings, solely pursuant to loans, advances, Guarantees or assumptions of Indebtedness of Holdings or the acquisition of any Equity Interests of a Subsidiary of Holdings, in each case, to the extent permitted hereunder and constituting Investments), (iii) additional Investments by any Subsidiary that is not a Loan Party in any other Subsidiary that is not a Loan Party, (iv) additional Investments by the Loan Parties in Subsidiaries that are not Loan Parties in an aggregate amount (together with Indebtedness permitted by Section 7.01(g)(iii) ) not to exceed the greater of (x) $5,750,000 and (y) 17.25% of Adjusted Consolidated EBITDA for the four Fiscal Quarter period most recently ended as to which financial statements were required to be delivered pursuant to this Agreement, in the aggregate at any time outstanding and (v) additional Investments by any Subsidiary that is not a Loan Party in a Loan Party;

(d) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the Ordinary Course of Business (and, to the extent owing by a Foreign Subsidiary to a Loan Party, made on customary arms-length terms), and Investments received in satisfaction or partial satisfaction thereof from financially troubled or delinquent account debtors or received in connection with disputes with customers and suppliers, in each case, to the extent in furtherance of business objectives determined in good faith by the Loan Parties or their Subsidiaries;

(e) Investments existing as of the date hereof (other than those set forth on Schedule 5.12 ) to the extent set forth in Schedule 7.03 and extensions or renewals thereof, provided that no such extension or renewal shall be permitted if it would (i) increase the amount of such Investment at the time of such extension or renewal or (ii) result in a Default or an Event of Default hereunder;

(f) Investments consisting of a Permitted Acquisition;

(g) bank deposits and securities accounts maintained in accordance with the terms of this Agreement and the other Loan Documents;

(h) Investments in securities of account debtors received pursuant to a plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such account debtors and Investments acquired in connection with the settlement of delinquent accounts receivable in the Ordinary Course of Business;

(i) Investments received as the non-cash portion of consideration in connection with a transaction permitted under Section 7.05 ;

 

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(j) Investments constituting Indebtedness and Guarantees permitted under Section 7.01 and transactions permitted by Section 7.04 , Section 7.05 and Section 7.06 ;

(k) deposits permitted under Section 7.02 ;

(l) other Investments (including Minority Interests) not exceeding $17,250,000 in the aggregate at any one time outstanding;

(m) Investments to the extent solely reflecting an increase in the value of Investments otherwise permitted hereunder;

(n) asset purchases (including purchases of inventory, supplies and materials) and the licensing of Intellectual Property, in each case in the Ordinary Course of Business;

(o) Investments in the Ordinary Course of Business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices;

(p) advances of payroll payments to employees in the Ordinary Course of Business;

(q) Investments held by a Subsidiary acquired after the Closing Date (including, pursuant to a Permitted Acquisition) or of a Person merged into a Borrower or merged or consolidated with a Subsidiary in accordance with Section 7.04 after the Closing Date to the extent that such Investments were not made in anticipation of, in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;

(r) Guarantee Obligations of Holdings or any of its Subsidiaries in respect of leases (other than Capitalized Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the Ordinary Course of Business;

(s) Investments made with Qualified Equity Interests of Holdings (or of the Borrowers or any direct or indirect parent company of Holdings after a Qualified IPO of the Borrowers or such parent company as the case may be) to the extent of such Qualified Equity Interests and to the extent not included in the Available Amount and, with respect to any Investments under this clause (s) that are Acquisitions or other acquisitions of the type described in clause (a) of the definition of “Permitted Acquisition”, to the extent the conditions set forth in the definition of “Permitted Acquisition” have been satisfied with respect to any such Investment;

(t) interests in interest rate hedging agreements or currency exchange rate hedging agreements, in each case, entered into in order to hedge interest rate exposure or currency exchange rate exposure, as applicable, and for bona fide and not for speculative purposes;

 

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(u) prepaid expenses or lease, utility and other similar deposits, in each case made in the Ordinary Course of Business;

(v) securities acquired in connection with the satisfaction or enforcement of indebtedness or claims due or owing or as security for any such indebtedness or claim, so long as the same are pledged to the Collateral Agent to secure the Obligations;

(w) accounts receivable owing to Borrower or any Subsidiary in the Ordinary Course of Business or acquired in connection with a Permitted Acquisition or other Investment permitted hereunder to the extent that such accounts receivable were not made or acquired in anticipation of, in contemplation of or in connection with such acquisition, merger or consolidation or Investment and were in existence on the date of such acquisition, merger or consolidation or Investment;

(x) (i) non-cash loans and advances to officers, directors and employees to purchase equity of Holdings or any direct or indirect parent thereof (including through the exercise of options or warrants of Holdings or any direct or indirect parent thereof) and (ii) any cash loans and advances to officers, directors and employees to pay taxes and related expenses associated with the purchase by such employees of equity of Holdings or any direct or indirect parent thereof (including through the exercise of options or warrants of Holdings or any direct or indirect parent thereof) in an aggregate amount not to exceed $2,300,000 plus the Available Amount in the aggregate at any time outstanding for all such cash loans and advances;

(y) (i) reasonable earnest money deposits made in connection with the acquisitions of property and assets not prohibited hereunder and (ii) deposits made in the Ordinary Course of Business securing contractual obligations to the extent constituting a Lien permitted hereunder; and

(z) other Investments by a Loan Party or a Subsidiary in an aggregate amount equal to the Available Amount as of the applicable date of such Investment; provided , that the following conditions are satisfied after giving effect to such Investment: (i) no Event of Default exists or shall immediately result from the making of such Investment and (ii) the Loan Parties shall be in compliance on a Pro Forma Basis with the covenants set forth in Sections 7.12(a) and (b) computed as of the last day of the most recently ended Fiscal Quarter for which financial statements have been delivered or were required to be delivered pursuant to Section 6.01(b) .

For purposes of this Section 7.03 , the amount of any Investments (other than Permitted Acquisitions) shall be determined net of all actual returns on such Investments, whether as principal, interest, dividends, distributions, proceeds or otherwise (for the avoidance of doubt, other than increases in book value) and loans and advances shall be taken at the principal amount thereof then remaining unpaid, exclusive of any pay in kind or accrued interest or fees thereon.

 

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7.04. Mergers, Dissolutions, Etc. . Merge, dissolve, liquidate, consolidate with or into another Person, except that:

(a) (i) any Subsidiary may merge or consolidate with or liquidate or dissolve into a Loan Party, provided , that, the Loan Party shall be the continuing or surviving Person and (ii) any Subsidiary that is not a Loan Party may merge into any other Subsidiary that is not a Loan Party, provided , that, when any wholly-owned Subsidiary is merging with another Subsidiary that is not wholly-owned, the wholly-owned Subsidiary shall be the continuing or surviving Person; and

(b) in connection with a Permitted Acquisition, any Subsidiary of a Loan Party may merge with or into or consolidate with any other Person or permit any other Person to merge with or into or consolidate with it; provided , that, (i) the Person surviving such merger shall be a wholly-owned Subsidiary of a Loan Party and (ii) in the case of any such merger to which any Loan Party is a party, such Loan Party is the surviving Person unless, in the case of each of the foregoing clauses (i) and (ii), the surviving entity has otherwise assumed all obligations of such Loan Party or Subsidiary, as applicable, under the Loan Documents pursuant to documentation reasonably acceptable to the Required Lenders.

7.05. Dispositions . Make any Disposition, except:

(a) Dispositions of Cash Equivalents and Inventory in the Ordinary Course of Business;

(b) (i) Dispositions in the Ordinary Course of Business of property that is obsolete, worn out or no longer useful in the Ordinary Course of Business and (ii) disposition of other assets, in each case for so long as (x) the aggregate fair market value or a book value, whichever is more, of such equipment, fixed assets and other assets does not exceed the greater of (A) $8,625,000 and (B) 17.25% of Adjusted Consolidated EBITDA for the four Fiscal Quarter period most recently ended as to which financial statements were required to be delivered pursuant to this Agreement, in any twelve-month period and (y) all proceeds thereof are either (A) applied in accordance with Section 2.06(b)(ii) of the Senior Loan Agreement if required thereby or (B) to the extent permitted by the Intercreditor Agreement as in effect as of the Closing Date unless any amendment thereto is consented to by the Loan Parties, remitted to Collateral Agent for application to the Obligations in accordance with Section 2.06(b)(ii) if required thereby;

(c) any Disposition that constitutes (i) an Investment permitted under Section 7.03 , (ii) a Lien permitted under Section 7.02 , (iii) a merger, dissolution, consolidation or liquidation permitted under Section 7.04 , or (iv) a Restricted Payment permitted under Section 7.06 ;

(d) such Disposition that results from a casualty or condemnation in respect of such property or assets so long as all proceeds thereof are either (A) applied in accordance with Section 2.06(b)(ii) of the Senior Loan Agreement if required thereby or (B) to the extent permitted by the Intercreditor Agreement as in effect as of the Closing Date unless any amendment thereto is consented to by the Loan Parties, remitted to Collateral Agent for application to the Obligations in accordance with Section 2.06(b)(ii) if required thereby;

 

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(e) the sale or discount, in each case without recourse, of accounts receivable arising in the Ordinary Course of Business, but only in connection with the compromise or collection of delinquent accounts or other accounts which, in the applicable Loan Party’s or Subsidiary’s reasonable business judgment, are doubtful of collection,

(f) licenses, sublicenses, leases or subleases granted to third parties in the Ordinary Course of Business;

(g) the lapse, abandonment or other dispositions of Intellectual Property that is, in the reasonable good faith judgment of a Loan Party or Subsidiary, no longer material to the conduct of the business of the Loan Parties or any of their Subsidiaries;

(h) (i) Dispositions among the Loan Parties (other than to Holdings except in respect of dispositions of Equity Interests) or by any Subsidiary to a Loan Party (other than to Holdings except in respect of dispositions of Equity Interests), and (ii) Dispositions by any Subsidiary that is not a Loan Party to another Subsidiary that is not a Loan Party;

(i) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property that is promptly purchased or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property (which replacement property is actually promptly purchased);

(j) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;

(k) the unwinding of any Swap Contract pursuant to its terms;

(l) Foreign Subsidiaries of the Borrowers may sell or dispose of Equity Interests to qualify directors where required by applicable law or to satisfy other requirements of applicable law with respect to the ownership of Equity Interests; and

(m) Permitted Sale Leasebacks.

To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than the Borrowers or any Subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Documents and the Collateral Agent shall be authorized to take and shall take any actions deemed appropriate in order to effect the foregoing.

7.06. Restricted Payments . Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:

(a) each Subsidiary may make Restricted Payments to a Loan Party or a Subsidiary of a Loan Party (other than Holdings except Restricted Payments made to Holdings the proceeds of which are used for Restricted Payments permitted hereunder) and, in connection therewith, on a pro rata basis to any other equity holder of such Subsidiary;

 

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(b) Holdings and each of its Subsidiaries may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;

(c) only if no Event of Default shall have occurred and be continuing, both immediately before or as a result of the making of such Restricted Payment, Holdings may (or may make a Restricted Payment to permit any direct or indirect parent to) purchase, redeem or otherwise acquire shares of its (or of any direct or indirect parent’s) stock or other Equity Interests in connection with customary employee or management agreements, plans or arrangements for future, present or former directors, managers and employees (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees, or distributes of any of the foregoing) of any of the Loan Parties and their Subsidiaries in an amount not to exceed $4,600,000 in the aggregate in any Fiscal Year and $11,500,000 in the aggregate at any time during the term of this Agreement; provided , that 50% of any unused amount (other than any unused carryover amount from the immediately preceding Fiscal Year) in any Fiscal Year shall be permitted to be carried over to the immediately succeeding Fiscal Year, with such amount carried over being deemed to be the first amount expended in the Fiscal Year; provided , further , that cancellation of Indebtedness owing to the Loan Parties (or any direct or indirect parent thereof) or any Subsidiary in connection with the repurchase or Equity Interests or stock hereunder will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;

(d) Restricted Payments by Borrowers to the extent necessary to permit Holdings or any direct or indirect holder of Equity Interests in the Borrowers to pay administrative or corporate costs and expenses related to the business of Borrowers and their Subsidiaries (including administrative, legal, accounting and similar expenses and director or officer indemnification claims of any direct or indirect parent of the Borrowers) attributable to the direct or indirect ownership or operations of the Borrowers and their Subsidiaries and franchise or other taxes payable by Holdings or any parent entity of Holdings whose sole material asset consists of the Equity Interests of Holdings (or another similarly situated parent entity thereof) to maintain its corporate existence) in each case, which are incurred in the Ordinary Course of Business;

(e) only if no Event of Default shall have occurred and be continuing, both immediately before or as a result of the making such Restricted Payment, the Loan Parties may make payments of management, consulting, monitoring, transaction and advisory fees to Sponsor or its Affiliates in accordance with the Management Agreement as in effect on the date hereof and the payment of out-of-pocket costs and expenses, reimbursements and indemnification payments thereunder; provided , that if at any time any such fees are not permitted to be paid as a result of the occurrence and continuance of an Event of Default, then (i) such amounts shall continue to accrue (plus accrued interest, if any, with respect thereto) and (ii) any such amounts that have accrued but which were

 

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not permitted to be paid may be paid so long as such Event of Default has been waived or cured and no other Event of Default has occurred and is continuing or would immediately result therefrom (it being agreed and understood that out-of-pocket costs and expenses, reimbursements, indemnities and other similar payments may be paid during the continuance of any Event of Default);

(f) Holdings, the Borrowers or any Subsidiary may make distributions which are promptly used by Holdings to satisfy unsecured and non-interest bearing obligations of Holdings arising from the exercise of the Seller Put Option when due; provided , that all of the following conditions have been satisfied:

(i) no Event of Default exists or shall immediately result from the making of such distribution; and

(ii) after giving effect to such distribution, the Loan Parties shall be in compliance on a Pro Forma Basis with the covenants set forth in Sections 7.12(a) and (b) for the Fiscal Quarter most recently ended as to which financial statements have been delivered or were required to be delivered pursuant to Section 6.01(b) ;

(g) Restricted Payments by Borrowers in an amount sufficient to permit Holdings (or, if applicable, the direct or indirect parent of Holdings that is the parent of the consolidated tax group for which Holdings is a member) to pay consolidated tax liabilities of Holdings and its Subsidiaries relating to the business of Borrowers and Borrowers’ Subsidiaries, in an amount not to exceed the amount of any such Taxes that the Borrowers and their Subsidiaries would have been required to pay on a separate group basis if the Borrowers and such Subsidiaries were the only members of the consolidated tax group, less the amount of any such Taxes that are paid directly by the Borrowers or their Subsidiaries to the relevant Governmental Authority;

(h) Restricted Payments not otherwise permitted above in an amount not in excess of the Available Amount, so long as (i) no Event of Default exists or shall immediately result from the payment of such Restricted Payment, (ii) the Loan Parties shall be in compliance on a Pro Forma Basis with the covenants set forth in Sections 7.12(a) and (b) for the Fiscal Quarter most recently ended as to which financial statements have been delivered or were required to be delivered pursuant to Section 6.01(b) and (iii) if any such payment shall be funded from amounts derived from clause (a) of the definition of “Available Amount”, after giving effect to such payment, the Consolidated Senior Net Leverage Ratio is not greater than 3.16 to 1.00 on a Pro Forma Basis computed as of the last day of the most recently ended Fiscal Quarter for which financial statements have been delivered or were required to be delivered pursuant to Section 6.01(b) ;

(i) Holdings and the Borrowers may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity

 

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contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby;

(j) to the extent constituting Restricted Payments, Holdings, the Borrowers and the Subsidiaries may enter into and consummate transactions expressly permitted to be effected by such Person by any provision of Section 7.03 , Section 7.04 or Section 7.08 ;

(k) repurchases of Equity Interests in the Ordinary Course of Business in the Borrowers (or any direct or indirect parent thereof) or any Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;

(l) Holdings and its Subsidiaries may make Restricted Payments to any direct or indirect holder of an Equity Interest in the Borrowers:

(i) to finance any Investment permitted to be made pursuant to Section 7.03 ; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) the Borrowers or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrowers or a Subsidiary or (2) the merger (to the extent permitted in Section 7.04 ) of the Person formed or acquired into the Borrowers or a Subsidiary in order to consummate such Permitted Acquisition, in each case, in accordance with the requirements of Section 6.12 ; and

(ii) the proceeds of which shall be used to pay customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;

(m) [reserved]; and

(n) the Borrowers or any Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms.

7.07. Change in Nature of Business . Engage in any material line of business other than the Core Business.

7.08. Transactions with Affiliates . Enter into, or suffer to exist, any transaction, arrangement or agreement of any kind with any Affiliate of any Loan Party, other than (a) those described on Schedule 7.08 , as in existence on the date hereof, or any amendment thereto to the extent such an amendment is not adverse to the Collateral Agent and/or the Lenders in any material respect, (b) those expressly permitted by this Agreement and the other Loan Documents,

 

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including pursuant to Section 7.06 , (c) transactions between or among Loan Parties, (d) employment and severance agreements and compensation to employees, officers or directors (including stock ownership plans, awards or grants of Equity Interests, employee benefit plans including vacation plans, health and life insurance plans, deferred compensation plans, retirement or savings plans and similar plans), (e) indemnification of officers, directors and employees in the Ordinary Course of Business, (f) transactions between Loan Parties and Subsidiaries that are not Loan Parties and/or any entity that becomes a Subsidiary as a result of such transaction, subject to any limitations set forth herein, (g) others on fair and reasonable terms substantially as favorable to such Loan Party or such Subsidiary as would be obtainable by such Loan Party or such Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate, (h) the Transaction and the payment of fees and expenses related to the Transaction and (i) the transactions contemplated by the Management Agreement including (but not limited to) payment of fees, expenses, reimbursements and indemnification payments.

7.09. Inconsistent Agreements . Enter into any Contractual Obligation (other than this Agreement or any other Loan Document) that (i) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation of such Person or (ii) limits the ability (A) of any Subsidiary to make Restricted Payments to any Loan Party or to otherwise transfer property to any Loan Party, (B) of any Subsidiary to Guarantee the Indebtedness of any Loan Party or become a direct Borrower hereunder, or (C) of any Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person; provided , however , that this Section 7.09 shall not prohibit limitations:

(a) in respect of any negative pledge incurred or provided in favor of any holder of Indebtedness permitted under Section 7.01(e) or 7.01(u) solely to the extent any such negative pledge relates to the property financed by or the subject of such Indebtedness;

(b) in respect of customary restrictions and conditions contained in any agreement relating to any Disposition not prohibited hereunder (in which case such restrictions or conditions shall relate only to the applicable property) or otherwise relating to a Disposition that is conditioned upon the amendment, restatement or replacement of this Agreement or the repayment in full of amounts owing hereunder;

(c) consisting of restrictions regarding licenses or sublicenses by a Loan Party or a Subsidiary of a Loan Party of Intellectual Property in the Ordinary Course of Business (in which case such restrictions shall relate only to such Intellectual Property);

(d) customary anti-assignment provisions found in Contractual Obligations entered into in the Ordinary Course of Business;

(e) in the Senior Indebtedness Documents or any documents governing a renewal, extension or refinancing thereof permitted by the terms of the Intercreditor Agreement as in effect as of the Closing Date unless any amendment thereto is consented to by the Loan Parties; and

(f) governing Indebtedness outstanding on the date any Person first becomes a Subsidiary of Holdings (so long as such agreement was not entered into solely in contemplation of such person becoming a Subsidiary of such Person).

 

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7.10. Reserved .

7.11. Prepayment of Indebtedness; Amendment to Senior Indebtedness Documents; Amendment to Organization Documents; Amendment to Management Agreement; Payment of Earnouts and Other Deferred Purchase Price Obligations .

(a) Voluntarily prepay, redeem, purchase, repurchase, defease or otherwise satisfy prior to the scheduled maturity thereof any Indebtedness that is subordinated to any of the Obligations except as set forth in clause (i) or (ii) below, or make any payment in violation of any subordination terms thereof:

(i) payments in respect of Other Subordinated Indebtedness solely to the extent expressly permitted under the intercreditor agreement applicable to, or subordination provisions of, such Other Subordinated Indebtedness; and

(ii) the Borrowers may make prepayments or redemptions in respect of any Other Subordinated Indebtedness in each case, in an amount not in excess of the Available Amount, so long as (i) no Event of Default exists or shall immediately result from the prepayment or redemption in respect of such Indebtedness, (ii) the Loan Parties shall be in compliance on a Pro Forma Basis with the covenants set forth in Sections 7.12(a) and (b) for the Fiscal Quarter most recently ended as to which financial statements were required to be delivered pursuant to this Agreement, (iii) if any such prepayment or redemption shall be funded from amounts derived from clause (a) of the definition of “Available Amount,” after giving effect to such prepayment or redemption, the Consolidated Senior Net Leverage Ratio is not greater than 3.16 to 1.00 on a Pro Forma Basis computed as of the last day of the most recently ended Fiscal Quarter for which financial statements have been delivered or were required to be delivered pursuant to Section 6.01(b) and (iv) not more than $20,000,000 in the aggregate for all such prepayments or redemptions shall be funded from amounts derived from clause (b) of the definition of “Available Amount”.

(b) Amend, modify or change in any manner any term or condition of (i) any Senior Indebtedness Document in a manner that violates the Intercreditor Agreement as in effect as of the Closing Date unless any amendment thereto is consented to by the Loan Parties or (ii) any other Indebtedness that is subordinated to any of the Obligations in a manner that violates the subordination terms thereof or, to the extent not covered by the applicable subordination terms, is materially adverse to the Lenders.

(c) Amend or otherwise modify any Organization Documents of such Person, except for such amendments or other modifications required by Law or which are not materially adverse to the interests of Collateral Agent or any Lender.

 

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(d) Amend or otherwise modify the Management Agreement or enter into any new or supplemental agreement other than amendments or modifications that are not materially adverse to Collateral Agent or the Lenders (it being understood that in any event no such amendment or modification of the Management Agreement the effect of which is to increase the amount of fees payable pursuant thereto in excess of the amount permitted by Section 7.06(e) shall be permitted absent the prior written consent of the Required Lenders).

(e) Pay, redeem, purchase, repurchase, defease or otherwise satisfy any earnout obligations or other similar deferred purchase price obligations unless all of the following conditions have been satisfied:

(i) no Default or Event of Default exists or shall immediately result from such payment, redemption, purchase, repurchase, defeasement or satisfaction of such obligation; and

(ii) after giving effect to such payment, redemption, purchase, repurchase, defeasement or satisfaction, the Loan Parties shall be in compliance on a Pro Forma Basis with the covenants set forth in Sections 7.12(a) and (b) for the Fiscal Quarter most recently ended as to which financial statements have been delivered or were required to be delivered pursuant to Section 6.01(b) .

7.12. Financial Covenants.

(a) Consolidated Total Net Leverage Ratio . Permit the Consolidated Total Net Leverage Ratio as of the end of any Measurement Period of Borrowers set forth below to be greater than the ratio set forth below opposite the last day of such Measurement Period:

 

Measurement Period Ending

  

Maximum Consolidated

Total Net Leverage

Ratio

June 30, 2014

   8.05 to 1.00

September 30, 2014

   8.05 to 1.00

December 31, 2014

   8.05 to 1.00

March 31, 2015

   7.75 to 1.00

June 30, 2015

   7.45 to 1.00

September 30, 2015

   7.20 to 1.00

December 31, 2015

   6.90 to 1.00

March 31, 2016

   6.90 to 1.00

June 30, 2016

   6.30 to 1.00

September 30, 2016

   6.30 to 1.00

December 31, 2016

   6.05 to 1.00

March 31, 2017

   6.05 to 1.00

June 30, 2017

   5.75 to 1.00

September 30, 2017

   5.75 to 1.00

December 31, 2017

   5.45 to 1.00

March 31, 2018

   5.45 to 1.00

June 30, 2018 and each Fiscal Quarter thereafter

   5.15 to 1.00

 

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(b) Consolidated Interest Coverage Ratio . Permit the Consolidated Interest Coverage Ratio as of the end of any Measurement Period of Borrowers set forth below to be less than the ratio set forth below opposite the last day of such Measurement Period:

 

Measurement Period Ending

  

Minimum Consolidated

Interest Coverage Ratio

June 30, 2014

   1.55 to 1.00

September 30, 2014

   1.55 to 1.00

December 31, 2014

   1.60 to 1.00

March 31, 2015

   1.60 to 1.00

June 30, 2015

   1.70 to 1.00

September 30, 2015

   1.70 to 1.00

December 31, 2015

   1.85 to 1.00

March 31, 2016

   1.85 to 1.00

June 30, 2016

   1.90 to 1.00

September 30, 2016

   1.90 to 1.00

December 31, 2016

   2.05 to 1.00

March 31, 2017

   2.10 to 1.00

June 30, 2017

   2.15 to 1.00

September 30, 2017

   2.15 to 1.00

December 31, 2017

   2.25 to 1.00

March 31, 2018

   2.25 to 1.00

June 30, 2018 and each Fiscal Quarter thereafter

   2.35 to 1.00

7.13. Anti-Terrorism Laws and Foreign Asset Control Regulations . (a) Become a “blocked person” as described in the Executive Order, the Trading With the Enemy Act or the Foreign Assets Control Regulations, (b) knowingly engage in any dealings or transactions, or be otherwise associated, with any such “blocked person” or in any manner violate any such order, or (c) use any part of the proceeds of the Loans for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977.

7.14. Fiscal Year . Change its Fiscal Year end, except in connection with acquisitions to conform new Subsidiaries to the Borrowers’ Fiscal Year.

 

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7.15. Holdings Covenant . Permit Holdings to engage in any business activities or incur any Indebtedness other than (i) acting as a holding company and transactions incidental thereto (including maintain its corporate existence), (ii) entering into the Loan Documents and the transactions required herein or permitted herein to be performed by Holdings (including, for the avoidance of doubt, until the consummation of the Closing Date Acquisition and the joinder of J.A. Cosmetics pursuant to a Joinder Agreement, acting as the Initial Borrower hereunder), (iii) entering into the agreements related to and consummating the Transactions and the transactions required therein or permitted therein to be performed by Holdings (including the Management Agreement), (iv) receiving and distributing the dividends, distributions and payments permitted to be made to Holdings pursuant to Section 7.06 , (v) entering into engagement letters and similar type contracts and agreements with attorneys, accountants and other professionals (and participating thereunder), (vi) owning the Equity Interests of the Initial Borrower and its Subsidiaries, (vii) issuing Equity Interests as permitted hereunder (including pursuant to a Qualified IPO), (viii) engaging in activities necessary or incidental to any director, officer and/or employee option incentive plan at Holdings, (ix) providing guarantees for the benefit of a Borrower to the extent such Person is otherwise permitted to enter into the transaction under this Agreement (including guaranties of lease obligations), (x) holding nominal deposits in Deposit Accounts in connection with consummating any of the foregoing transactions, (xi) the entering into and performance of obligations under the Senior Indebtedness Documents or any other debt documents permitted hereunder to which it is a party or any documents for a refinancing thereof permitted by the Subordination Agreement, (xii) the entering into and performance of the unsecured and non-interest bearing obligations arising from the exercise of the Seller Put Option and (xiii) obligations or activities incidental to the business or activities described in the foregoing clauses (i) to (xii), including providing indemnification of officers, directors, shareholders and employees.

ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES

8.01. Events of Default . Any of the following shall constitute an Event of Default:

(a) Non-Payment . Any Borrower fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan, or (ii) within five Business Days after the same becomes due, any interest on any Loan, or any fee or other amount payable hereunder or under any other Loan Document; or

(b) Specific Covenants . Any Loan Party fails to perform or observe any term, covenant or agreement contained (i) in any of Sections 6.03 (solely with respect to notices of Events of Default), 6.05(a) (solely with respect to the Loan Parties), 6.07 , 6.10 , 6.16 , 6.18 , or Article VII (subject to Section 8.04 hereof), or (ii) in any of Sections 6.01 , 6.02(a) or 6.02(b) and such failure continues for five (5) or more days; or

(c) Other Defaults . Any Loan Party fails to perform or observe any other term, covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days after the earlier of (i) receipt of notice of such failure by a Responsible Officer of Borrower Agent from Collateral Agent, or (ii) any Responsible Officer of any Loan Party becomes aware of such failure; or

 

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(d) Representations and Warranties . Any representation or warranty made or deemed made by or on behalf of any Loan Party or any Subsidiary herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect (without duplication of other materiality qualifiers contained therein); or

(e) Cross-Default . (i) Any Loan Party or any Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise, and after passage of any grace period) in respect of any Indebtedness (other than Senior Indebtedness) or Guarantee (other than in respect of Senior Indebtedness) having an aggregate principal amount of more than $5,750,000, or (B) fails to observe or perform any other material agreement or condition relating to any such Indebtedness or such Guarantee or any other event occurs (other than, with respect to Indebtedness consisting of Swap Contracts, termination events or equivalent events pursuant to the terms of such Swap Contracts), and such event continues for more than the grace period, if any, therein specified, the effect of which is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; provided that this clause (e)(i)(B) shall not apply to Indebtedness that becomes due solely as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness or (ii) any Loan Party or any Subsidiary fails to observe or perform any agreement or condition relating to Senior Indebtedness or a Guarantee with respect thereto or any other event occurs, and such event continues after the expiration of any applicable grace period therein specified and, as a consequence thereof, the Senior Indebtedness or Guarantee thereof) has become or has been declared due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise) prior to its stated maturity; provided , further, that this clause (e) shall not apply to any breach or default with respect to the Senior Indebtedness that is (I) remedied by Holdings or the applicable Subsidiary or (II) waived (including in the form of amendment) by the required holders of the Senior Indebtedness in either case, prior to the actual acceleration of Senior Indebtedness;

(f) Insolvency Proceedings, Etc . Any Loan Party or any Subsidiary institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or

 

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unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or

(g) [Reserved];

(h) Judgments . There is entered against any Loan Party or any Subsidiary one or more final non-appealable judgments or orders for the payment of money, writs, warrants of attachment or execution or similar process in an aggregate amount exceeding $5,750,000 (except to the extent covered by insurance as to which the insurer does not dispute coverage or third party indemnification reasonably acceptable to the Required Lenders) and such judgments, orders, writs, warrants of attachment or execution or similar process remain unsatisfied, unvacated and unstayed for a period of 60 consecutive days after the entry, issue or levy thereof; or

(i) ERISA . (i) An ERISA Event occurs which, together with any outstanding liability incurred in connection with any other ERISA Event, has resulted in or would have a Material Adverse Effect (ii) the existence of any Lien under Section 430(k) of the Code or Section 303(k) or Section 4068 of ERISA on any assets of a Loan Party or any Subsidiary thereof, (iii) a Loan Party, a Subsidiary thereof or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan and a Material Adverse Effect would result, (iv) the benefit liabilities of any Foreign Plan, at any time exceed all Foreign Plan’s assets, as computed in accordance with applicable law as of the most recent valuation date for such Foreign Plan, such that, when aggregated with such excess for all other Foreign Plans, the aggregate excess equals more than $1,150,000, or (v) any other event occurs or shall occur or exist with respect to a Plan, Foreign Plan, Pension Plan or Multiemployer Plan that results in a Material Adverse Effect; or

(j) Invalidity of Loan Documents . Any material provision of any Loan Document, or any Lien granted thereunder, at any time after its execution and delivery and for any reason, other than as expressly permitted under such Loan Document or upon Payment in Full of all Obligations or as a result of the failure of Collateral Agent or any Lender to take any action within its control, ceases to be in full force and effect (except with respect to immaterial assets); or any Loan Party or any Subsidiary thereof repudiates, challenges or contests in writing the validity or enforceability of any material provision in any Loan Document, any Loan Obligation or any Lien granted to Collateral Agent pursuant to the Security Instruments (including the perfection or priority thereof); or any Loan Party denies that it has any or further liability or obligation under any material provision in any Loan Document, or purports in writing to revoke, terminate or rescind any Loan Document (other than as a result of a payment made hereunder or release expressly permitted hereunder); or

(k) [ Reserved .]; or

(l) Change of Control . There occurs any Change of Control.

 

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8.02. Remedies Upon Event of Default . If any Event of Default occurs and is continuing, Collateral Agent with the consent of the Required Lenders, may, and at the direction of the Required Lenders shall, take any or all of the following actions: (a) declare the commitment of each Lender to make Loans to be terminated, whereupon such commitments and obligation shall be terminated; (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by Borrowers; and (c) exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable Law; provided , however , that upon the occurrence of Event of Default under clause (f) above, the obligation of each Lender to make Loans shall automatically terminate and the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, without further act of Collateral Agent or any Lender.

8.03. Application of Funds.

(a) After the exercise of any remedy provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable), any amounts received on account of the Obligations shall be applied by Collateral Agent in the following order:

First , to all fees, indemnities, expenses and other amounts (including all reasonable fees, charges and disbursements of counsel to Collateral Agent payable pursuant to Section 10.04 and amounts payable under Article III ) due to Collateral Agent in its capacity as such, until paid in full;

Second , to that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest, fees and other Obligations expressly described in clauses Third through Fifth below) payable to the Lenders (including reasonable fees, charges and disbursements of counsel to the respective Lenders and amounts payable under Article III ), ratably among them in proportion to the respective amounts described in this clause Second payable to them until paid in full;

Third , to that portion of the Obligations constituting accrued and unpaid interest on the Loans and other Obligations, ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them until paid in full;

Fourth , to that portion of the Obligations constituting unpaid principal of the Loans and other Obligations, ratably among the Lenders in proportion to the respective amounts described in this clause Fourth payable to them until paid in full;

Fifth , to all other Obligations of Borrowers owing under or in respect of the Loan Documents, in each case, that are due and payable to Collateral Agent and the other Lender Parties, or any of them, on such date, ratably based on the respective aggregate amounts of all such Obligations owing to Collateral Agent and the other Lender Parties on such date until paid in full; and

Last , the balance, if any, after Payment in Full of the Obligations, to Borrowers or as otherwise required by Law.

 

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(b) Reserved.

(c) For purposes of Section 8.03(a) , “paid in full” of a type of Obligation means payment in cash or immediately available funds of all amounts owing on account of such type of Obligation, including interest accrued after the commencement of any insolvency proceeding, default interest, interest on interest, and expense reimbursements, irrespective of whether any of the foregoing would be or is allowed or disallowed in whole or in part in any proceeding under Debtor Relief Laws but, excluding contingent indemnification obligations for which no claim has been asserted.

8.04. Equity Cure Right . In the event Borrowers fail to comply with the financial covenants set forth in Section 7.12 , subject to the terms and conditions hereof, Holdings shall have the right (the “ Cure Right ”) after the first day of the applicable Fiscal Quarter for which such covenants are then being tested until the expiration of the 10th Business Day subsequent to the date the applicable financial statements are required to be delivered to Collateral Agent with respect thereto (the “ Cure Period ”), to issue Permitted Cure Securities for cash or otherwise receive, as additional paid in capital, cash common equity contributions, in either case in an aggregate amount equal to, but not greater than, the amount necessary to cure all relevant financial covenants (including, without limitation all relevant financial covenants contained in the Senior Loan Agreement) (hereinafter, the “ Cure Amount ”), and upon the receipt by any Borrower of the cash proceeds thereof, the financial covenants shall then be recalculated giving effect to the following pro forma adjustments: (a) Adjusted Consolidated EBITDA shall be increased for the applicable Fiscal Quarter and for the subsequent three (3) consecutive Fiscal Quarters, solely for the purpose of measuring compliance with the financial covenants and not for any other purpose under this Agreement or any other Loan Document (including, without limitation, calculating basket levels), by an amount equal to the Cure Amount contributed by Holdings to the Borrowers; and (b) if, after giving effect to the foregoing recalculations, Borrowers shall then be in compliance with the requirements of all financial covenants, Borrowers shall be deemed to have been in compliance with such financial covenants as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach, Default or Event of Default of such financial covenants that had occurred shall be deemed not to have occurred for all purposes of this Agreement. In the event that (i) no Event of Default exists other than that arising due to failure of the Loan Parties to comply with the financial covenants set forth in Section 7.12 or the failure to deliver a notice of Default in respect thereof), and (ii) until the expiration of the Cure Period, then neither Collateral Agent nor any Lender shall exercise any remedies set forth in Section 8.02 hereof or under any Loan Document until after the Borrowers’ ability to cure has lapsed and the Borrowers have not exercised such Cure Right. Notwithstanding anything herein to the contrary, in no event shall Holdings or Borrowers be permitted to exercise the Cure Right hereunder (x) more than 5 times in the aggregate during the term of this Agreement or (y) more than 2 times in any 4 consecutive Fiscal Quarters.

 

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ARTICLE IX

COLLATERAL AGENT

9.01. Appointment and Authority; Limitations on Lenders . Each of the Lenders hereby irrevocably appoints U.S. Bank to act on its behalf as Collateral Agent hereunder and under the other Loan Documents and authorizes Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to Collateral Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of Collateral Agent and the Lenders, except for a Borrower’s consent right as expressly permitted in Section 9.06 and no Loan Party shall have rights as a third party beneficiary of any of such provisions (although each Loan Party shall be bound by such provisions). Each of the Lenders hereby acknowledges and confirms that it has received a copy of the Intercreditor Agreement and hereby agrees to be bound by the provisions thereof. Actions taken by Collateral Agent hereunder, under the other Loan Documents or upon the instructions of Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as Collateral Agent shall believe in good faith shall be necessary), shall be binding upon each Lender.

Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against Borrowers or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, Collateral Agent in accordance with Section 8.02 for the benefit of all the Lenders; provided , however , that the foregoing shall not prohibit (a) Collateral Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Collateral Agent) hereunder and under the other Loan Documents, (b) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.13 ), or (c) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Borrower under any Debtor Relief Law; and provided , further , that if at any time there is no Person acting as Collateral Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to Collateral Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (c) and (d) of the preceding proviso and subject to Section 2.13 , any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.

9.02. Rights as a Lender . Should the Person serving as Collateral Agent hereunder become a Lender, it shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not Collateral Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as Collateral Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Loan Parties or any Subsidiary or other Affiliate thereof as if such Person were not Collateral Agent hereunder and without any duty to account therefor to the Lenders.

 

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9.03. Exculpatory Provisions . Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, Collateral Agent:

(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing;

(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, and shall not be required to take any action that, in its opinion may expose Collateral Agent to liability or that is contrary to any Loan Document or applicable law; and

(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Affiliates that is communicated to or obtained by Collateral Agent or any of its Affiliates in any capacity.

Collateral Agent shall not be liable for any action taken (including any apportionment or distribution of payments) or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02 ) or (ii) in the absence of its own bad faith, gross negligence or willful misconduct. Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice describing such Default or Event of Default is given to an authorized officer of Collateral Agent at Collateral Agent’s Office by Borrower Agent or a Lender. Collateral Agent shall have no obligation to take any action if it believes, in good faith, that such action would violate applicable Law or expose Collateral Agent to any liability for which it has not received indemnification satisfactory to it.

Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to Collateral Agent.

9.04. Reliance by Collateral Agent . Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or made by the proper Person. Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition

 

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hereunder to the making of a Loan, Collateral Agent may presume that such condition is satisfactory to such Lender unless Collateral Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. Collateral Agent may consult with legal counsel (who may be counsel for Borrowers), independent accountants and other experts selected by it and shall be entitled to rely on the opinions of such expert.

9.05. Delegation of Duties . Collateral Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by Collateral Agent. Collateral Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of Collateral Agent and any such sub-agent, and shall apply to their respective activities as Collateral Agent. Collateral Agent shall not be liable for the actions or inaction of any sub-agent appointed by Collateral Agent with due care.

9.06. Resignation of Collateral Agent . Collateral Agent may at any time give notice of its resignation to the Lenders and Borrower Agent. Upon receipt of any such notice of resignation, the Required Lenders shall have the right to appoint a successor which shall be a Lender or a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States and which shall, so long as no Event of Default under Section 8.01(a) of 8.01(f) shall have occurred and be continuing, be reasonably acceptable to the Borrower Agent. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may on behalf of the Lenders appoint a successor Collateral Agent meeting the qualifications set forth above which shall, so long as no Event of Default under Section 8.01(a) of 8.01(f) shall have occurred and be continuing, be reasonably acceptable to the Borrower Agent. If the Collateral Agent resigns and no successor is appointed, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) all payments, communications and determinations provided to be made by, to or through Collateral Agent shall instead be made by or to each Lender directly, until such time as the Required Lenders appoint a successor Collateral Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Collateral Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Collateral Agent, and the retiring Collateral Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by Borrowers to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between Borrowers and such successor. After the retiring Collateral Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Collateral Agent was acting as Collateral Agent.

In the event that the Person serving as Collateral Agent shall consolidate or merge with another entity, or shall sell all or substantially all of its corporate trust business to another entity, the survivor or transferee, as applicable, shall be the Collateral Agent hereunder without further act.

 

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9.07. Non-Reliance on Collateral Agent and Other Lenders . Each Lender acknowledges that it has, independently and without reliance upon Collateral Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon Collateral Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

9.08. Reserved .

9.09. Collateral Agent May File Proofs of Claim; Credit Bidding . In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, Collateral Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Collateral Agent shall have made any demand on Borrowers) shall be entitled and empowered, by intervention in such proceeding or otherwise (a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and Collateral Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and Collateral Agent and their respective agents and counsel and all other amounts due the Lenders and Collateral Agent) allowed in such judicial proceeding; and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to Collateral Agent and, in the event that Collateral Agent shall consent to the making of such payments directly to the Lenders, to pay to Collateral Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Collateral Agent and its agents and counsel, and any other amounts due Collateral Agent under Section 10.04(c) .

The Loan Parties and the Lender Parties hereby irrevocably authorize Collateral Agent, based upon the instruction of the Required Lenders, to (a) credit bid and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Section 363 of the Bankruptcy Code or any similar Laws in any other jurisdictions to which a Loan Party is subject, or (b) credit bid and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any other sale or foreclosure conducted by (or with the consent or at the direction of) Collateral Agent (whether by judicial action or otherwise) in accordance with applicable Law. In connection with any such credit bid and purchase, the Obligations owed to the Lender Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims being estimated for such purpose if the fixing or liquidation thereof would not unduly

 

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delay the ability of Collateral Agent to credit bid and purchase at such sale or other disposition of the Collateral and, if such claims cannot be estimated without unduly delaying the ability of Collateral Agent to credit bid, then such claims shall be disregarded, not credit bid, and not entitled to any interest in the asset or assets purchased by means of such credit bid) and the Lender Parties whose Obligations are credit bid shall be entitled to receive interests (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) in the asset or assets so purchased (or in the Equity Interests of the acquisition vehicle or vehicles that are used to consummate such purchase). Except as provided above and otherwise expressly provided for herein or in the other Security Instruments, Collateral Agent will not execute and deliver a release of any Lien on any Collateral. Upon request by Collateral Agent or Borrowers at any time, the Lender Parties will confirm in writing Collateral Agent’s authority to release any such Liens on particular types or items of Collateral pursuant to this Section 9.09 .

9.10. Collateral Matters . The Lender Parties irrevocably authorize Collateral Agent, at its option and in its discretion, (a) to release any Lien on any Collateral (i) upon the occurrence of the Facility Termination Date, (ii) at the time the property that is subject to such Lien is Disposed or to be Disposed as part of or in connection with any Disposition permitted hereunder or under any other Loan Document, or (iii) subject to Section 10.01 , if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders or (iv) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guarantee pursuant to clause (c) or (d) below or pursuant to or to the extent required under the Intercreditor Agreement; (b) (i) to subordinate any Lien on any property granted to or held by Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted under Section 7.02(i) or pursuant to or to the extent required under the Intercreditor Agreement and (ii) that the Collateral Agent is authorized to release or subordinate any Lien on any property granted to or held by the Collateral Agent in accordance with the terms of the Security Agreement; and (c) to release any Borrower or any Subsidiary from its obligations under the Loan Documents (and all Liens granted by such Borrower or Subsidiary) if such Person ceases to be a Borrower or a Subsidiary as a result of a transaction permitted hereunder or to the extent such release is pursuant to or required under the Intercreditor Agreement. Upon request by Collateral Agent at any time, the Required Lenders will confirm in writing Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under the Loan Documents pursuant to this Section 9.10 . In each case as specified in this Section 9.10 , each Lender irrevocably authorizes the Collateral Agent to, at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release or subordination of such item of Collateral from the assignment and security interest granted under the Security Instruments, or to evidence the release of such Guarantor from its obligations under the Guarantee, in each case in accordance with the terms of the Loan Documents and this Section 9.10

9.11. Other Collateral Matters.

(a) Care of Collateral . Collateral Agent shall have no obligation to assure that any Collateral exists or is owned by a Loan Party, or is cared for, protected or insured, nor to assure that Collateral Agent’s Liens have been properly created, perfected or enforced, or are entitled to any particular priority, nor to exercise any duty of care with respect to any Collateral.

(b) Lenders as Agent For Perfection by Possession or Control . Collateral Agent and Lender Parties appoint each Lender as agent (for the benefit of Lender Parties) for the purpose of perfecting Liens in any Collateral held or controlled by such Lender, to the extent such Liens are perfected by possession or control. If any Lender obtains possession or control of any Collateral, it shall notify Collateral Agent thereof and, promptly upon Collateral Agent’s request, deliver such Collateral to Collateral Agent or otherwise deal with it in accordance with Collateral Agent’s instructions.

 

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9.12. Right to Perform, Preserve and Protect . The obligations of the Collateral Agent under the Loan Documents are only those expressly set forth therein. Without limiting the generality of the foregoing, the Collateral Agent shall not be required to take any action hereunder with respect to any Default or Event of Default, except as expressly provided herein. Upon the occurrence and during the continuation of an Event of Default, the Collateral Agent shall take such action to enforce its Lien on the Collateral and to preserve and protect the Collateral as may be directed by the Required Lenders. Unless and until the Required Lenders give such direction, the Collateral Agent may take (but shall not be obligated to) take or refrain from taking) such actions as it deems appropriate and in the best interest of all the Lenders. Any instructions of the Required Lenders, or of any other group of Lenders called for under the specific provisions of the Loan Documents, shall be binding upon all the Lenders and the holders of the Obligations. Each Lender agrees to reimburse Collateral Agent and each of its Related Persons (to the extent not reimbursed by any Loan Party) promptly upon demand, severally and ratably, for any costs and expenses (including fees, charges and disbursements of financial, legal and other advisors paid in the name of, or on behalf of, any Loan Party) that may be incurred by Collateral Agent or any of its Related Persons in connection with the preparation, execution, delivery, administration, modification, consent, waiver or enforcement of, or the taking of any other action (whether through negotiations, through any work out, bankruptcy, restructuring or other legal or other proceeding (including without limitation, preparation for and/or response to any subpoena or request for document production relating thereto) or otherwise) in respect of, or legal advice with respect to, its rights or responsibilities under, any Loan Document.

9.13. Reserved .

9.14. Reserved .

9.15. Authorization to Enter into Intercreditor Agreement . Each Lender hereby irrevocably appoints, designates and authorizes Collateral Agent to enter into the Intercreditor Agreement on its behalf and to take such action on its behalf under the provisions of any such agreement. Each Lender further agrees to be bound by the terms and conditions of the Intercreditor Agreement. In the event of any specific conflict or inconsistency between the provisions of Intercreditor Agreement and this Agreement, the provisions of Intercreditor Agreement shall control.

 

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ARTICLE X

MISCELLANEOUS

10.01. Amendments, Etc . Except as otherwise specifically provided herein, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by Borrowers, Borrower Agent or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and Borrowers, the applicable Borrower or the applicable Loan Party, as the case may be (and notwithstanding the foregoing, no amendment to Section 10.19 shall be effective unless in writing signed by the holders of the Senior Indebtedness), and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided , however , that no such amendment, waiver or consent shall (with respect to clauses (b) and (c) below, only the consent of the Lenders specified therein and not the Required Lenders is required):

(a) extend or increase the Commitment of a Lender (or reinstate any Commitment terminated pursuant to Section 8.02 ) without the written consent of such Lender (it being understood that a waiver of any condition precedent in Section 4.01 of this Agreement or the waiver of any covenant, Default, Event of Default or mandatory prepayment or reductions shall not constitute an increase of any Commitment of a Lender);

(b) postpone any date fixed by this Agreement or any other Loan Document for any payment (but excluding the delay or waiver of any mandatory prepayment) of principal, interest, fees or other amounts due to a Lender (or any of them), including the Term Loan Maturity Date, or any scheduled reduction of the Commitments hereunder or under any other Loan Document, in each case without the written consent of such Lender directly affected thereby;

(c) reduce the principal of, or the rate of interest specified herein on, any Loan, or (subject to clause (iv) of the second proviso to this Section 10.01 ) any fees or other amounts payable hereunder or under any other Loan Document, without the written consent of such Lender directly affected thereby; provided , however , that only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” (so long as such amendment does not result in the Default Rate being lower than the interest rate then applicable to Eurodollar Rate Loans) or to waive any obligation of Borrowers to pay interest at the Default Rate; provided , further ¸ that any waiver of Default or Event of Default or default interest, waiver of a mandatory prepayment or any modification, waiver or amendment to the financial covenant definitions or any component thereof in this Agreement shall not constitute a reduction or forgiveness in the interest rates or the fees or premiums for purposes of this clause (c) ;

(d) change the provisions requiring pro rata payments to the Lenders set forth herein without the written consent of each Lender directly affected thereby;

(e) change any provision of this Section or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender;

 

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(f) release any Borrower or any Guarantor from this Agreement without the written consent of each Lender, except to the extent such Person is the subject of a Disposition permitted by Section 7.05 (in which case such release may be made by Collateral Agent acting alone); or

(g) release all or substantially all of the Collateral without the written consent of each Lender except with respect to Dispositions and releases of Collateral permitted or required hereunder (including pursuant to Section 7.05 ) or as provided or required in the Intercreditor Agreement or the other Loan Documents (in which case such release may be made by Collateral Agent acting alone);

and, provided further , that (i) no amendment, waiver or consent shall, unless in writing and signed by Collateral Agent in addition to the Lenders required above, affect the rights or duties of Collateral Agent under this Agreement or any other Loan Document; and (ii) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the respective parties thereto.

If any Lender does not consent (a “ Non-Consenting Lender ”) to a proposed amendment, waiver, consent or release with respect to any Loan Document that requires the consent of each Lender or any class of Lenders and that has been approved by the Required Lenders, Borrowers may replace such Non-Consenting Lender in accordance with Section 10.13 ; provided that such amendment, waiver, consent or release can be effected as a result of the assignment contemplated by such Section (together with all other such assignments required by Borrowers to be made pursuant to this paragraph).

Notwithstanding the terms of this Agreement or any amendment, waiver, consent or release with respect to any Loan Document, Non-Consenting Lenders shall not be entitled to receive any fees or other compensation paid to the Lenders in connection with any amendment, waiver, consent or release approved in accordance with the terms of this Agreement by the Required Lenders.

In addition, notwithstanding anything to the contrary in this Agreement, including this Section 10.01 , this Agreement and the other Loan Documents may be amended (or amended and restated) by the Collateral Agent, the Borrower and the Lenders providing the applicable Credit Extension to increase the Term Loan Facility (a) to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement (including the rights of the Lenders to share ratably in prepayments following any such increase to the Term Loan Facility), the Security Agreement and the other Loan Documents with the Loans and the accrued interest and fees in respect thereof, (b) to include appropriately the Lenders holding such credit facility in any determination of the Required Lenders and (c) to amend other provision of the Loan Documents so that such increase to the Term Loan Facility is appropriately incorporated herein (including this Section 10.01 ).

 

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In addition, notwithstanding anything to the contrary herein, this Agreement, (a) the Borrower Agent may by written notice to the Collateral Agent, make one or more offers (each, an “ Extension Offer ”) to all the Lenders holding Term Loans with a like maturity date (each Loan subject to such an Extension Offer, an “ Extension Request Class ”) to make one or more Extension Permitted Amendments pursuant to procedures specified by the Borrowers. Such notice shall set forth (i) the terms and conditions of the requested Extension Permitted Amendment and (ii) the date on which such Extension Permitted Amendment is requested to become effective (which shall not be less than 5 Business Days after the date of such notice, unless otherwise reasonably agreed to by the Collateral Agent). Extension Permitted Amendments shall become effective only with respect to the Loans of the Lenders of the Extension Request Class that accept the applicable Extension Offer (such Lenders, the “ Extending Lenders ”) and, in the case of any Extending Lender, only with respect to such Lender’s Loans of such Extension Request Class as to which such Lender’s acceptance has been made; and (b) an Extension Permitted Amendment shall be effected pursuant to an Extension Agreement executed and delivered by the Borrowers, each applicable Extending Lender and the Collateral Agent. No consent of any Lender or the Collateral Agent shall be required to effectuate any Extension Offer, other than the consent of each Lender agreeing to such Extension Offer with respect to its Term Loans (or a portion thereof). The Collateral Agent shall promptly notify each Lender as to the effectiveness of each Extension Agreement. Each Extension Agreement may, without the consent of any Lender other than the applicable Extending Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Required Lenders and the Borrowers, to give effect to the provisions of this paragraph of Section 10.01 , including any amendments necessary to treat the applicable Loans of the Extending Lenders as a new “tranche” of loans and/or commitments hereunder. With respect to all extensions consummated by Borrowers pursuant hereto, (i) such extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 2.06(a) or (b) and (ii) no Extension Offer is required to be in any minimum amount or any minimum increment; provided that Borrower Agent may at its election specify as a condition to consummating any such extension that a minimum amount (to be determined and specified in the relevant Extension Offer in Borrower Agent’s sole discretion and may be waived by Borrower Agent) of Term Loans (as applicable) of any or all applicable tranches be tendered. For the avoidance of doubt, Lenders holding Extended Loans of the same tranche may elect to have payments made to them on a non-pro rata basis to effectuate the extended terms of such Extended Loans of the same tranche.

In addition, notwithstanding anything to the contrary contained in Section 10.01 , if the Collateral Agent and the Borrowers shall have jointly identified an obvious error or any error, defect or omission of a technical or immaterial nature, in each case, in any provision of the Loan Documents, then the Collateral Agent and the Borrowers shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document.

10.02. Notices; Effectiveness; Electronic Communication .

(a) Notices Generally . Except in the case of notices and other communications expressly permitted to be given by telephone or in the case of notices otherwise expressly provided herein (and except as provided in subsection (b) below), all

 

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notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier or email (including as a .pdf or .tif file) as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:

if to a Loan Party or Collateral Agent, to the address, telecopier number, electronic mail address or telephone number specified for such Person below, as changed pursuant to subsection (d) below:

 

(i)

  

If to Collateral Agent:

  

U.S. Bank Global Corporate Trust Services

     

One Federal Street

     

Boston, Massachusetts 02110

     

Attention: ###, Corporate Trust Services

     

Telecopy: ###

     

Telephone No.: ###

     

Email: ###

  

With a copy to:

  

Latham & Watkins LLP

     

885 Third Avenue

     

New York, New York 10022

     

Attn: ###

     

Telecopy: ###

  

With a copy to:

  

Shipman & Goodwin LLP

     

One Constitution Plaza

     

Hartford, Connecticut 06103

     

Attn: ###

     

Telecopy: ###

     

Telephone No.: ###

(ii)

  

If to a Loan Party:

  

J.A. Cosmetics US, Inc., as Borrower Agent

     

10 West 33 rd Street, Suite 802

     

New York, NY 10001

     

Attention: ###

     

Facsimile No.: ###

     

Telephone No.: ###

     

Email: ###

  

With a copy to:

  

TPG Growth

     

345 California Street, Suite 3300

     

San Francisco, CA 94104

     

Attention: ###

     

Facsimile No.: ###

     

Telephone No.: ###

     

Email: ###

 

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   With a copy to:    TPG Growth
     

345 California Street, Suite 3300

     

San Francisco, CA 94104

     

Attention: ###

     

Facsimile No.: ###

     

Telephone No.: ###

     

Email: ###

   With a copy to:   

Kirkland & Ellis LLP

     

333 S. Hope Street

     

Los Angeles, CA 90071

     

Attention: ###

     

Facsimile No.: ###

     

Telephone No.: ###

     

Email: ###

if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire, as changed pursuant to subsection (d) below (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to Loan Parties).

Notices sent by hand or overnight courier service or by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not sent during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).

(b) Electronic Communications . Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by Collateral Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified Collateral Agent that it is incapable of receiving notices under such Article by electronic communication. Collateral Agent or Borrowers may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.

Unless Collateral Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed to have been given when sent; provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed given to the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

 

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(c) Borrower Materials . Each Loan Party hereby acknowledges that Collateral Agent and/or the Arranger will make available to the Lenders materials and/or information provided by or on behalf of Borrowers hereunder (collectively, “ Borrower Materials ”) through the Internet. In no event shall Collateral Agent or any of its Related Parties (collectively, the “ Agent Parties ”) have any liability to any Borrower, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of a Borrower’s or Collateral Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided , however , that in no event shall any Agent Party have any liability to any Borrower, any Lender or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).

(d) Change of Address, Etc . Each of Borrowers and Collateral Agent may change its address, telecopier number, electronic mail address or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier number, electronic mail address or telephone number for notices and other communications hereunder by notice to Borrower Agent and Collateral Agent. In addition, each Lender agrees to notify Collateral Agent from time to time to ensure that Collateral Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.

(e) Reliance by Collateral Agent and Lenders . Collateral Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices) purportedly given by or on behalf of Borrowers even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. All telephonic notices to and other telephonic communications with Collateral Agent may be recorded by Collateral Agent, and each of the parties hereto hereby consents to such recording.

10.03. No Waiver; Cumulative Remedies . No failure by any Lender or Collateral Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

 

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10.04. Expenses; Indemnity; Damage Waiver.

(a) Costs and Expenses . Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses of the Collateral Agent and PennantPark incurred on or prior to the Closing Date (promptly following a written demand therefor, together with backup documentation supporting such reimbursement request) associated with the preparation, execution, delivery and administration of the Loan Documents and any amendment or waiver with respect thereto (but limited, in the case of legal fees and expenses, to the reasonable and documented fees, disbursements and other charges of one counsel to PennantPark and of one counsel to the Collateral Agent, one regulatory counsel and, if necessary, of one local counsel in each relevant jurisdiction) and (ii) after the Closing Date, upon presentation of a summary statement, together with any supporting documentation reasonably requested by the Borrowers, all reasonable and documented out-of-pocket expenses of the Collateral Agent and the Lenders promptly following a written demand therefor (but limited, in the case of legal fees and expenses, to the reasonable and documented fees, disbursements and other charges of one counsel to the Lenders taken as a whole, one counsel to the Collateral Agent, and, if necessary, of one local counsel to the Collateral Agent and the Lenders taken as a whole in each relevant jurisdiction and solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction to each group of affected Lenders similarly situated taken as a whole) in connection with the enforcement of the Loan Documents or protection of rights thereunder; provided that the foregoing indemnity will not apply to expenses (i) to the extent resulting from the willful misconduct, bad faith or gross negligence of Collateral Agent or any Lender, (ii) to the extent arising from a material breach of the obligations by Collateral Agent or any Lender under the Loan Documents (in the case of each of preceding clauses (i) and (ii), as determined by a court of competent jurisdiction in a final judgment) or (iii) to the extent arising from any dispute solely among Collateral Agent and any Lenders or among Lenders, other than any claims against any Collateral Agent in such capacity or any Lender in its capacity or in fulfilling its role as an collateral agent or arranger or any similar role under the Term Loan Facility and other than any claims arising out of any act or omission on the part of any Loan Party or its Affiliates (as determined by a court of competent jurisdiction in a final judgment).

(b) Indemnification by Loan Parties . The Loan Parties shall indemnify Collateral Agent and the Lenders and their respective affiliates, and each Related Party (each such Person being called an “ Indemnitee ”) against, and hold them harmless from and against all costs and expenses (including, any and all losses, claims, damages, liabilities and related expenses (including the reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel for the Indemnitees taken as a whole (absent an actual conflict of interest in which case affected Persons may engage and be reimbursed for one additional counsel for each such group of affected Indemnitees similarly situated taken as a whole), and, if reasonably necessary, a single local counsel for all Indemnitees taken as a whole in each relevant jurisdiction and, solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction to each group of affected Indemnitees similarly situated taken as a whole)), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by Borrowers or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of

 

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this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby or, in the case of Collateral Agent (and any sub-agent thereof) and its Related Parties only, the administration and enforcement of this Agreement and the other Loan Documents, (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by any Loan Party or any of its Subsidiaries, or any Environmental Liability related in any way to any Loan Party or any of its Subsidiaries, (iv) any claims of, or amounts paid by Collateral Agent to, a Controlled Account Bank or other Person which has entered into a control agreement with Collateral Agent hereunder or (v) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party, the Sponsor or any of its Affiliates or by Borrowers or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or expenses (w) result from any settlement of any claim, litigation, investigation or proceeding without the consent of the Loan Parties (such consent not to be unreasonably withheld, conditioned or delayed), (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith, willful misconduct or material breach of the Loan Documents of or by any Indemnitee or any of its Related Parties or (y) any dispute solely among any Indemnitees (other than claims of an Indemnitee against Collateral Agent, in its capacity as such or any Lender in its capacity or fulfilling its role as an arranger or any similar role under the Loan Documents and other than any claims arising out of any act or omissions on the part of any Loan Party or any of its Affiliates (as determined by a court of competent jurisdiction by final judgment). For the avoidance of doubt, this Section 10.04(b) shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim. Notwithstanding the foregoing, each Indemnitee shall be obligated to refund and return promptly to the applicable Borrower, Holdings, Sponsor or Affiliate any and all amounts paid by any Borrower, Holdings, the Sponsor or any of their Affiliates under this clause (b) to such Indemnitee for any such fees, expenses or damages to the extent such Indemnitee is not entitled to payment of such amounts in accordance with the terms hereof. The Loan Parties shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement of any pending or threatened claim, litigation, investigation or proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless such settlement (i) includes an unconditional release of such Indemnitee in form and substance reasonably satisfactory to such Indemnitee (which approval shall not be unreasonably withheld or delayed) from all liability on claims that are the subject matter of such claim, litigation, investigation or proceeding and (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of such Indemnitee.

(c) Reimbursement by Lenders . To the extent that (i) the Loan Parties for any reason fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it, or (ii) any liabilities, losses, damages, penalties, actions,

 

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judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever are imposed on, incurred by, or asserted against, Collateral Agent or a Related Party in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted to be taken by Collateral Agent or a Related Party in connection therewith, then, in each case, each Lender severally agrees to pay to Collateral Agent (or any such sub-agent) or such Related Party such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on such Lender’s portion of Loans and commitments) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against Collateral Agent (or any such sub-agent), or against any Related Party of any of the foregoing acting for Collateral Agent (or any such sub-agent); and provided , further , that , the obligation of the Lenders to so indemnify shall not be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Collateral Agent or Related Party. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d) .

(d) Waiver of Consequential Damages, Etc . To the fullest extent permitted by applicable law, no party hereto or Indemnitee, or any of their respective Related Parties shall assert, and each hereby waive any claim against any other party, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof, except in respect of any such damages paid by an Indemnitee to a third party for which such Indemnitee is entitled to reimbursement thereof pursuant to Section 10.04(b) . No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.

(e) Payments . All amounts due under this Section shall be payable not later than 20 Business Days after demand therefor.

(f) Survival . The agreements in this Section shall survive the resignation of Collateral Agent, the replacement of any Lender and the occurrence of the Facility Termination Date.

10.05. Marshalling; Payments Set Aside . None of Collateral Agent or Lenders shall be under any obligation to marshal any assets in favor of any Loan Party or against any Obligations. To the extent that any payment by or on behalf of any Loan Party is made to a Lender Party, or a Lender Party exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Lender Party in its discretion)

 

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to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to Collateral Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by Collateral Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The obligations of the Lenders under clause (b) of the preceding sentence shall survive the occurrence of the Facility Termination Date.

10.06. Successors and Assigns .

(a) Successors and Assigns Generally . The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that unless in connection with a transaction permitted by Section 7.04 , an Investment permitted hereunder to the extent the surviving or succeeding Person or assignee, as applicable, of such Investment has assumed all obligations of such Loan Party under the Loan Documents pursuant to documentation reasonably acceptable to the Required Lenders, or Permitted Acquisition and in accordance with the requirements thereof, no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Collateral Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to any Person (other than any of the Persons described in Subsection (b)(iv) of this Section) in accordance with the provisions of subsection (b) of this Section (such an assignee, an “ Eligible Assignee ”), (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void), (iv) to Sponsor or any Non-Debt Fund Affiliate in accordance with the provisions of subsection (g) of this Section or (v) in the case of any Eligible Assignee that, immediately prior to or upon giving effect to such assignment, is a Debt Fund Affiliate, subsection (h). Without limiting the generality of the foregoing, the parties hereto expressly confirm their agreement that the holders of the Senior Indebtedness are intended third party beneficiaries of Sections 10.01 and 10.19 and will have the right to enforce such provisions directly against the applicable parties. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section, the holders of the Senior Indebtedness as third-party beneficiaries of Section 10.19 and to the extent provided in Section 10.01 and, to the extent expressly contemplated hereby, the Related Parties of each of the Lender Parties) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

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(b) Assignments by Lenders . Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment(s) and the Loans at the time owing to it); provided that any such assignment shall be subject to the following conditions:

(i) Minimum Amounts .

(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment under any Term Loan Facility and the Loans at the time owing to it under such Term Loan Facility or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and

(B) in any case not described in subsection (b)(i)(A) of this Section or in Section 10.06(g) , the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to Collateral Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $1,000,000, in the case of any assignment in respect of the Term Loan Facility, unless such assignment is made to an existing Lender or an Affiliate or Approved Fund of any existing Lender, such assignment is of the assigning Lender’s entire interest in such facility or each of Collateral Agent and, so long as no Event of Default under Section 8.01(a) , 8.01(b) (solely with respect to the failure to perform or comply with Section 7.12 ) or 8.01(f) has occurred and is continuing, Borrower Agent otherwise consents (each such consent not to be unreasonably withheld or delayed); provided , however , that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single assignee (or to an assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.

(ii) Required Consents . No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:

(A) the consent of Borrower Agent (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default under Section 8.01(a) , 8.01(b) (solely with respect to the failure to perform or comply with Section 7.12 ) or 8.01(f) has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that Borrower Agent shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to Collateral Agent within ten (10) Business Days after having received notice thereof; provided , further , that the Borrower Agent’s consent shall be required with

 

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respect to any assignment to a Disqualified Institution notwithstanding the existence of an Event of Default under Section 8.01(a) , 8.01(b) (solely with respect to a failure to perform or comply with Section 7.12 ) or 8.01(f) and Borrower Agent’s refusal to consent to an assignment to any Disqualified Institution (to the extent such consent is required) shall not be deemed to be unreasonable; and

(B) [Reserved].

(iii) Assignment and Assumption . The parties to each assignment shall execute and deliver to Collateral Agent an Assignment and Assumption, together with (except for any assignments pursuant to Section 10.06(g) hereof) a processing and recordation fee in the amount of $3,500; provided , however , that Collateral Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment and provided , further , that such fee shall not be payable in connection with an assignment to an Affiliate of a Lender or an Approved Fund. The assignee, if it is not a Lender, shall deliver to Collateral Agent an Administrative Questionnaire.

(iv) No Assignment to Certain Persons . No such assignment shall be made to (A) Sponsor, any Affiliate of Sponsor, any Borrower or any of a Borrower’s Affiliates or Subsidiaries (except as provided in subsection (g) or (h) of this Section), (B) any holder of the Senior Indebtedness, (C) a natural person or (D) without Borrower Agent’s consent, any Disqualified Institution.

(v) Reserved .

Subject to acceptance and recording thereof by Collateral Agent in the Register pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01 , 3.04 , 3.05 and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, each Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.06(d) ; provided that an assignment or transfer not in compliance with Section 10.06(b)(iv) shall be void and of no force or effect.

(c) Register . Collateral Agent, acting solely for this purpose as a non-fiduciary agent of Borrowers (in such capacity, subject to Section 10.17 ), shall maintain at Collateral Agent’s Office in the U.S. a copy of each Assignment and Assumption

 

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delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts and stated interest of the Loans and Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”). The entries in the Register shall be conclusive, and Borrowers, Collateral Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower Agent at any reasonable time and from time to time upon reasonable prior notice. In addition, at any time that a request for a consent for a material or substantive change to the Loan Documents is pending, any Lender may request and receive from Collateral Agent a copy of the Register.

(d) Participations . Any Lender may at any time, without the consent of, or notice to, any Borrower or Collateral Agent, sell participations to any Person (other than a natural person, Sponsor, any Affiliate of Sponsor, a Borrower or any of Borrowers’ Affiliates or Subsidiaries (except as provided in subjection (g) or (h) of this Section) or a Disqualified Institution) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) Borrowers, Collateral Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, Borrowers agree that each Participant shall be entitled to the benefits of Sections 3.01 , 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. Each Participant agrees to be subject to Section 10.07 as though it were a Lender. Each Lender granting a participation shall as a non-fiduciary agent of the Borrowers maintain in the U.S. a register (“ Participation Register ”) with respect to the ownership and transfer of each participation containing the information set forth in the Register described in Section 10.06(c) . No Lender shall have any obligation to disclose all or any portion of the Participation Register (including any such portion containing the identity of any Participant or any information relating to a Participant’s interest in any rights or obligations under this Agreement) to any Person except to the extent that such disclosure is necessary to establish that the Loans or other rights or obligations under this Agreement are in registered form under Section 5f.103-1(c) or Section 1.871-14(c) of the Treasury Regulations. The entries in the Participation Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participation Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Collateral Agent (in its capacity as Collateral Agent) shall have no responsibility for maintaining a Participation Register.

 

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(e) Limitations upon Participant Rights . A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless Borrower Agent is notified of the participation sold to such Participant and such Participant agrees, for the benefit of Borrowers, to comply with Section 3.01(e) as though it were a Lender.

(f) Certain Pledges . Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(g) Assignments to Sponsor . Subject to clauses (A), (B) and (C) below, any Lender may assign all or a portion of the Term Loan (subject to the limitations contained in Sections 10.06(b)(i) ) to the Sponsor or any Non-Debt Fund Affiliate, without the consent of any Person but subject to acknowledgment by the Collateral Agent; provided that (i) the assigning Lender and the assignee shall execute and deliver to the Collateral Agent an Assignment and Assumption, (ii) Term Loans held by the Sponsor or any Non-Debt Fund Affiliate shall not at any time, in the aggregate for all such Persons, exceed 25% of the aggregate principal amount of the Term Loans then outstanding, and (iii) after giving effect to an assignment the number of Non-Debt Fund Affiliates together with the Sponsor holding the Term Loans shall not constitute 50% or more of the aggregate number of Lenders holding a portion of the Term Loans at the time of such assignment.

(A) Notwithstanding anything to the contrary in this Section 10.06 , but subject to the rights contained in clause (C) below, neither the Sponsor nor any Non-Debt Fund Affiliate shall have any right to (1) attend (including by telephone or electronic means) any meeting or discussions (or portion thereof) among the Collateral Agent and any Lender to which representatives of the Sponsor, the Borrowers or the Guarantors are not invited, or (2) receive any information or material prepared by the Collateral Agent or any Lender or any communication by or among the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Sponsor, the Borrowers or the Guarantors or their representatives.

(B) Notwithstanding anything to the contrary in this Section 10.06 or the definition of “Required Lenders”, for purposes of determining whether the Required Lenders have (1) consented (or not consented) to

 

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any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Borrower or any Guarantor therefrom, (2) otherwise acted on any matter related to any Loan Document, or (3) directed or required the Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, the Sponsor or any Non-Debt Fund Affiliate shall be deemed, to the extent not adversely affecting the Sponsor or any Non-Debt Fund Affiliate as compared to other Lenders, to have voted its interest as a Lender without discretion in the same proportion as the allocation of voting with respect to such matter by Lenders who are not the Sponsor or any Non-Debt Fund Affiliate; provided that no amendment, modification, waiver, consent or other action with respect to any Loan Document shall deprive the Sponsor or any Non-Debt Fund Affiliate of its pro rata share of any payments to which the Sponsor or any Non-Debt Fund Affiliate, as applicable, as a Lender is entitled under the Loan Documents or any vote which affects the Sponsor or any Non-Debt Fund Affiliate disproportionately without the Sponsor or any Non-Debt Fund Affiliate, as applicable, providing its consent; and in furtherance of the foregoing, (x) the Sponsor or any Non-Debt Fund Affiliate agrees to execute and deliver to the Collateral Agent any instrument reasonably requested by the Collateral Agent to evidence the voting of its interest as a Lender in accordance with the provisions of this Section 10.06(g) ; provided that if the Sponsor or any Non-Debt Fund Affiliate fails to promptly execute such instrument such failure shall in no way prejudice any of the Collateral Agent’s rights under this paragraph and (y) the Collateral Agent is hereby appointed (such appointment being coupled with an interest) by the Sponsor or any Non-Debt Fund Affiliate as each such Person’s attorney in fact, with full authority in the place and stead of such Person and in the name of such Person, from time to time in the Collateral Agent’s reasonable discretion to take any action and to execute and instrument that the Collateral Agent may deem reasonably necessary to carry out the provisions of this Section 10.06(g) and (ii) Sponsor and any Non-Debt Fund Affiliate, as applicable, in its capacity as a Lender shall retain the right to consent to an extension of the maturity date of their Term Loans, reduction in the principal amount of their Term Loans, reduction in the interest rate thereof or postponement of the scheduled due date therefor). Sponsor or its Non-Debt Fund Affiliates may, with the consent of Borrower Agent and pursuant to documentation reasonably satisfactory to the Required Lenders, contribute the Term Loans held by them as an equity contribution to the Borrowers (whether through any of its direct or indirect parent companies or otherwise) in exchange for debt or equity securities of the Borrowers or such parent company that are otherwise permitted to be issued by such Person at such time. If any Borrower or any Guarantor is the subject of any proceeding under any Debtor Relief Laws neither the Sponsor nor any Non-Debt Fund Affiliate shall (i) vote in opposition to a plan of reorganization of such

 

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Borrower or Guarantor that has been approved by all Lenders (exclusive of the Sponsor or any Non-Debt Fund Affiliate) unless such plan of reorganization affects the Sponsor or any Non-Debt Fund Affiliate, as applicable, in its capacity as a Lender in a disproportionately adverse manner than its effect on other Lenders or (ii) vote in favor of any plan of reorganization of such Borrower or Guarantor that has not been approved by Lenders (exclusive of the Sponsor or any Non-Debt Fund Affiliate) holding a majority of the outstanding principal amount of the Loans (exclusive of the amount held by the Sponsor or any Non-Debt Fund Affiliate).

(C) The Sponsor or any of its Non-Debt Fund Affiliates, in its capacity as a Lender of a portion of the Term Loan, in its sole and absolute discretion and with Borrower Agent’s consent, may, but is not required to, make one or more capital contributions or assignments of the portion of the Term Loan that it acquires in accordance with this Section 10.06 to Holdings solely in exchange for equity interests of Holdings upon no less than 3 Business Days’ prior written notice to the Collateral Agent. Immediately upon the acquisition by Holdings of such portion of the Term Loan, it shall transfer such portion to the Borrowers. Immediately upon any Borrower or any of a Borrower’s Subsidiaries’ acquisition of any portion of the Term Loan, (x) such portion of the Term Loan and all rights and obligations as a Lender related thereto shall for all purposes (including under this Agreement, the other Loan Documents and otherwise) be deemed to be irrevocably prepaid, terminated, extinguished, cancelled and of no further force and effect and such Borrower or such Borrower’s Subsidiary shall neither obtain nor have any rights as a Lender hereunder or under the other Loan Documents by virtue of such capital contribution or assignment and (y) Borrowers shall deliver to the Collateral Agent a written acknowledgement and agreement executed by a Responsible Officer and in form and substance reasonably acceptable to the Required Lenders acknowledging the irrevocable prepayment, termination, extinguishment and cancellation of such portion of the Term Loan and confirming that such Borrowers have no rights as a Lender under this Agreement, the other Loan Documents or otherwise. The parties hereto agree that any prepayment, termination, extinguishment and/or cancellation of any Loans as contemplated by this Section 10.06 shall be disregarded for purposes of calculating each of Adjusted Consolidated EBITDA and Excess Cash Flow for any applicable period of calculation.

(h) Although Debt Fund Affiliates shall be Eligible Assignees and shall not be subject to the provisions of Section 10.06(g) , any Lender may, at any time, assign all or a portion of its rights and obligations with respect to Term Loans under this Agreement to a Person who is or will become, after such assignment, a Debt Fund Affiliate only through (x) Dutch auctions or other offers to purchase or take by assignment open to all Lenders on a pro rata basis in accordance with procedures of the type described in Section 2.19 (for the avoidance of doubt, without requiring any representation as to the possession of

 

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material non-public information by such Affiliate) or (y) open market purchase on a non-pro rata basis. Notwithstanding anything in Section 10.01 or the definition of “Required Lenders” to the contrary, for purposes of determining whether the Required Lenders have (i) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom, (ii) otherwise acted on any matter related to any Loan Document or (iii) directed or required the Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, all Term Loans held by Debt Fund Affiliates, in the aggregate, may not account for more than 49.9% of the amounts included in determining whether applicable Lenders have consented to any action pursuant to Section 10.01 .

(i) Electronic Execution of Assignments . The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

Nothing contained in this Section 10.06 shall prevent or prohibit any Lender from pledging its rights (but not its obligations to make Loans) under this Agreement and/or its Loans hereunder (i) to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank or (ii) in the case of a Lender that is an investment fund, to any agent or trustee for, or any other similar representative of, holders of obligations owed to, or securities issued by, such investment fund, as security for such obligations or securities, in either case without notice to or consent of the Borrower or Collateral Agent; provided , however , that (A) such Lender shall remain a “Lender” under this Agreement and shall continue to be bound by the terms and conditions set forth in this Agreement and the other Loan Documents, and (B) any pledge or assignment by such trustee shall be subject to this Section 10.06 .

Notwithstanding anything to the contrary contained herein, any Lender (a “ Granting Lender ”) may grant to a special purpose funding vehicle (an “ SPC ”), identified as such in writing from time to time by the Granting Lender to the Collateral Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the

 

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payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 10.06 , any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Collateral Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by the Borrower) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC.

10.07. Treatment of Certain Information; Confidentiality . Each of the Lender Parties agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, trustees, officers, employees, agents, advisors and representatives on a “need to know” basis (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process (in which case such Lender Party agrees to use commercially reasonable efforts (to the extent permitted by law and practical to do so) to notify the Borrower Agent promptly thereof), (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to a written agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to Borrowers and their obligations, (g) with the consent of Borrower Agent or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Lender Parties or any of their respective Affiliates on a nonconfidential basis from a source other than the Loan Parties other than as a result of a breach of any duty of confidentiality.

For purposes of this Section, “ Information ” means all information received from Sponsor, any Loan Party or any Subsidiary relating to a Loan Party or any Subsidiary or any of their respective businesses, other than any such information that is available to any Lender Party on a nonconfidential basis prior to disclosure by a Loan Party or any Subsidiary, provided that, in the case of information received from Sponsor, a Loan Party or any Subsidiary after the date hereof, any information not marked “PUBLIC” at the time of delivery will be deemed to be confidential; provided , that any information marked “PUBLIC” may also be marked “Confidential”. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information but in any event a reasonable level.

 

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Each of the Lender Parties acknowledges that (a) the Information may include material non-public information concerning a Loan Party or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including Federal and state securities Laws.

10.08. Right of Setoff . If an Event of Default shall have occurred and be continuing, each Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency but other than any Excluded Accounts) at any time held and other obligations (in whatever currency) at any time owing by such Lender or any such Affiliate to or for the credit or the account of any Loan Party against any and all of the obligations of Borrowers now or hereafter existing under this Agreement or any other Loan Document to such Lender, but only to the extent then due and owing. The rights of each Lender and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender or their respective Affiliates may have. Each Lender agrees to notify Borrower Agent and Collateral Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.

10.09. Interest Rate Limitation . Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “ Maximum Rate ”). If Collateral Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to Borrowers. In determining whether the interest contracted for, charged, or received by Collateral Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

10.10. Counterparts; Integration; Effectiveness . This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Subject to Section 4.01 , this Agreement shall become effective when it shall have been executed by Collateral Agent and when Collateral Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement and each other Loan Document by telecopy or other electronic means (including .pdf or .tif files) shall be effective as delivery of a manually executed counterpart of this Agreement.

 

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10.11. Survival . All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Lender Parties, regardless of any investigation made by any Lender Party or on their behalf and notwithstanding that any Lender Party may have had notice or knowledge of any Default or Event of Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Loan Obligation (other than contingent indemnification obligations for which no claim has been asserted) hereunder shall remain unpaid or unsatisfied.

Further, the provisions of Sections 3.01 , 3.04 , 3.05 , 10.02 , 10.03 , 10.04 , 10.05 , 10.06 , 10.09 , 10.10 , 10.11 , 10.12 , 10.14 , 10.15 , 10.16 , 10.17 and 10.18 shall survive and remain in full force and effect regardless of the repayment of the Obligations, the expiration or termination of the Commitments or the termination of this Agreement or any provision hereof.

10.12. Severability . If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

10.13. Replacement of Lenders . If any Lender requests compensation under Section 3.04 , if Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 , or if any Lender fails to approve any amendment, waiver or consent requested by Borrower Agent pursuant to Section 10.01 that has received the written approval of not less than the Required Lenders but also requires the approval of such Lender, then in each such case Borrower Agent may, at its sole expense and effort, upon notice to such Lender and Collateral Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06 ), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:

(a) Borrower Agent shall have paid to Collateral Agent the assignment fee specified in Section 10.06(b) ;

(b) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05 ) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or Borrower Agent (in the case of all other amounts);

 

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(c) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01 , such assignment will result in a reduction in such compensation or payments thereafter;

(d) in the case of any such assignment resulting from the refusal of a Lender to approve a requested amendment, waiver or consent, the Person to whom such assignment is being made has agreed to approve such requested amendment, waiver or consent; and

(e) such assignment does not conflict with applicable Laws.

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrowers to require such assignment and delegation cease to apply. Subject to the immediately preceding sentence, any assignment or delegation made in compliance with this Section 10.13 should nonetheless be effective for all purposes hereunder and under the Loan Documents, regardless of whether a Lender being replaced fails to execute and deliver any documents in connection therewith.

10.14. Governing Law; Jurisdiction; Etc .

(a) GOVERNING LAW . THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

(b) SUBMISSION TO JURISDICTION . EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT COLLATERAL AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST BORROWERS OR THEIR PROPERTIES IN THE COURTS OF ANY JURISDICTION.

 

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(c) WAIVER OF VENUE . EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

(d) SERVICE OF PROCESS . EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02 . NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

10.15. Waiver of Jury Trial . EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

10.16. USA PATRIOT Act Notice . Each Lender that is subject to the USA PATRIOT Act and Collateral Agent (for itself and not on behalf of any Lender) hereby notifies Borrowers that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies Borrowers, which information includes the name and address of Borrowers and other information that will allow such Lender or Collateral Agent, as applicable, to identify Borrowers in accordance with the USA PATRIOT Act.

10.17. No Advisory or Fiduciary Responsibility . In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Lender Parties are arm’s-length commercial transactions between each Loan Party, on the one hand, and the Lender Parties, on the other hand, (B) each Loan Party has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) each Loan Party is capable of evaluating, and

 

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understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each Lender Party is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for any Loan Party or any of its Affiliates or any other Person and (B) no Lender Party has any obligation to any Loan Party or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents, (iii) the Lender Parties may be engaged in a broad range of transactions that involve interests that differ from those of the Loan Parties and their Affiliates, and no Lender Party has any obligation to disclose any of such interests to any Loan Party or its Affiliates and (iv) the Lender Parties have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and each of the Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. To the fullest extent permitted by law, each Loan Party hereby waives and releases any claims that it may have against any Lender Party with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

10.18. Attachments . Any exhibits, schedules and annexes attached to this Agreement are incorporated herein and shall be considered a part of this Agreement for the purposes stated herein; except, that, in the event of any conflict between any of the provisions of such exhibits and the provisions of this Agreement, the provisions of this Agreement shall prevail.

10.19. Intercreditor Agreement .

(a) Each Lender hereunder (i) acknowledges that it has received a copy of the Intercreditor Agreement, (ii) consents to the subordination of the Loans, the other Obligations hereunder and the Liens provided for in the Intercreditor Agreement, (iii) agrees that it is bound by and will take no actions contrary to the provisions of the Intercreditor Agreement, and (iv) authorizes and instructs Collateral Agent to enter into the Intercreditor Agreement as Collateral Agent and on behalf of such Lender.

(b) Notwithstanding anything herein to the contrary, (i) the Loans, the other Obligations and all other obligations and liabilities under the Loan Documents owing to Collateral Agent or any Lender, the liens and security interests granted to Collateral Agent pursuant to this Agreement or any other Loan Document are expressly subject and subordinate to the Senior Debt and the liens and security interests granted (including, without limitation, liens and security interests granted to Senior Lender Agent) pursuant to the Senior Indebtedness Documents and (ii) the exercise of any right or remedy by Collateral Agent hereunder is subject to the limitations and provisions of the Intercreditor Agreement. In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Agreement, the terms of the Intercreditor Agreement shall govern.

(c) The foregoing provisions are intended as an inducement to the holders of the Senior Indebtedness to permit the incurrence of Indebtedness under this Agreement and to extend credit to the Borrowers and such holders are intended third party beneficiaries of such provisions and the provisions of Section 10.01 with respect to any amendment to this Section 10.19 .

 

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(d) Until the Senior Debt (as defined in the Intercreditor Agreement) is Finally Paid (as defined in the Intercreditor Agreement), and so long as the Intercreditor Agreement remains in effect, any obligation of any Loan Party under this Agreement that requires (or any representation or warranty hereunder to the extent that it would have the effect of requiring) (a) delivery of original possessory Collateral (including any endorsements related thereto) to, or the possession or control of Collateral with, the Collateral Agent shall be deemed complied with and satisfied (or, in the case of any representation or warranty hereunder, shall be deemed to be true) if such delivery of Collateral is made to, or such possession or control of Collateral is with, the Senior Lender Agent and (b) the provision of voting rights or the obtaining of any consent of the Collateral Agent or any Person, in each case in connection with any Collateral, shall be deemed to be satisfied if such Grantor complies with the requirements of the similar provision of the Senior Loan Agreement.

ARTICLE XI

CONTINUING GUARANTEE

11.01. Guarantee . Holdings and each Subsidiary Guarantor hereby absolutely and unconditionally guarantees, as a guarantee of payment and performance and not merely as a guarantee of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all of the Obligations, whether for principal, interest, premiums, fees, indemnities, damages, costs, expenses or otherwise, of Borrowers to the Lender Parties, arising hereunder or under any other Loan Document (including all renewals, extensions, amendments, refinancings and other modifications thereof and all costs, attorneys’ fees and expenses incurred by the Lender Parties in connection with the collection or enforcement thereof, subject to the limitations set forth in Section 10.04(a) hereof).

11.02. Rights of Lenders . Holdings and each Subsidiary Guarantor consents and agrees that the Lender Parties may, at any time and from time to time, and without affecting the enforceability or continuing effectiveness hereof and subject only to the terms of this Agreement: (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time for payment or the terms of the Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any security for the payment of this Guarantee or any Obligations; (c) apply such security and direct the order or manner of sale thereof as Collateral Agent and the Lenders in their sole discretion may determine in accordance with the terms of the Loan Documents; and (d) release or substitute one or more of any endorsers or other guarantors of any of the Obligations. Without limiting the generality of the foregoing, Holdings and each Subsidiary Guarantor consents to the taking of, or failure to take, any action which might in any manner or to any extent vary the risks of Holdings or any Subsidiary Guarantor under this Guarantee or which, but for this provision, might operate as a discharge of Holdings or any Subsidiary Guarantor.

 

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11.03. Certain Waivers .

(a) Holdings and each Subsidiary Guarantor waives, to the fullest extent permitted by law, (i) any defense arising by reason of any disability or other defense of any Borrower or any other Guarantor, or the cessation from any cause whatsoever (including any act or omission of any Lender Party) of the liability of Borrowers; (ii) any defense based on any claim that Holdings’ or any Subsidiary Guarantor’s obligations exceed or are more burdensome than those of any Borrower; (iii) the benefit of any statute of limitations affecting Holdings’ or any Subsidiary Guarantor’s liability hereunder; (iv) any right to require any Lender Party to proceed against any Borrower, proceed against or exhaust any security for the Obligations, or pursue any other remedy in the power of any Lender Party whatsoever; (v) any benefit of and any right to participate in any security now or hereafter held by any Lender Party; and (vi) to the fullest extent permitted by law, any and all other defenses (other than a defense of payment in full) or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties. Holdings and each Subsidiary Guarantor expressly waives, to the fullest extent permitted by law, all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Obligations, and all notices of acceptance of this Guarantee or of the existence, creation or incurrence of new or additional Obligations, except as otherwise expressly set forth in this Agreement.

(b) Holdings and each Subsidiary Guarantor agrees that its obligations hereunder are absolute and unconditional, irrespective of (i) the genuineness, validity, regularity, enforceability, subordination or any future modification of, or change in, any Obligations or Loan Document, or any other document, instrument or agreement to which any Borrower or other Loan Party is or may become a party or be bound; (ii) the absence of any action to enforce this Agreement (including this Section) or any other Loan Document, or any waiver, consent or indulgence of any kind by Collateral Agent or any Lender with respect thereto; (iii) the existence, value or condition of, or failure to perfect a Lien or to preserve rights against, any security or guarantee for the Obligations or any action, or the absence of any action, by Collateral Agent or any Lender in respect thereof (including the release of any security or guarantee); (iv) the insolvency of any Borrower or any other Loan Party; (v) any election by Collateral Agent or any Lender in proceeding under Debtor Relief Laws for the application of Section 1111(b)(2) of the Bankruptcy Code; (vi) any borrowing or grant of a Lien by any Borrower or other Loan Party, as debtor-in-possession under Section 364 of the Bankruptcy Code or otherwise; (vii) the disallowance of any claims of Collateral Agent or any Lender against any Borrower for the repayment of any Obligations under Section 502 of the Bankruptcy Code or otherwise; or (viii) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, except defense of payment in full.

(c) Holdings and each Subsidiary Guarantor expressly waives, to the fullest extent permitted by law, all rights that it may have now or in the future under any statute, at common law, in equity or otherwise, to compel Collateral Agent or Lenders to marshal assets or to proceed against any Borrower, or any other Person or security for the

 

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payment or performance of any Obligations before, or as a condition to, proceeding against Holdings or such Subsidiary Guarantor. Holdings and each Subsidiary Guarantor waives, to the fullest extent permitted by law, all defenses available to a surety, guarantor or accommodation co-obligor other than defense of payment in full. It is agreed among Holdings and each Subsidiary Guarantor, Collateral Agent and Lenders that the provisions of this Article XI are essential to the transaction contemplated by the Loan Documents and that, but for such provisions, Collateral Agent and Lenders would decline to make Loans. Holdings and each Subsidiary Guarantor acknowledges that its guarantee pursuant to this Section is necessary to the conduct and promotion of its business, and can be expected to benefit such business.

(d) Collateral Agent and Lenders may, in their discretion, pursue such rights and remedies as they deem appropriate, including realization upon Collateral by judicial foreclosure or non-judicial sale or enforcement, without affecting any rights and remedies under this Article XI . If, in taking any action in connection with the exercise of any rights or remedies, Collateral Agent or any Lender shall forfeit any other rights or remedies, including the right to enter a deficiency judgment against any Loan Party or other Person, whether because of any applicable Laws pertaining to “election of remedies” or otherwise, Holdings and each Subsidiary Guarantor consents to such action and waives any claim based upon it, even if the action may result in loss of any rights of subrogation that Holdings or any Subsidiary Guarantor might otherwise have had. Any election of remedies that results in denial or impairment of the right of Collateral Agent or any Lender to seek a deficiency judgment against any Borrower shall not impair Holdings’ and each Subsidiary Guarantor’s obligation to pay the full amount of the Obligations.

11.04. Obligations Independent . The obligations of Holdings and each Subsidiary Guarantor hereunder are those of primary obligor, and not merely as surety, and are independent of the Obligations and the obligations of any other guarantor, and a separate action may be brought against Holdings and each Subsidiary Guarantor to enforce this Guarantee whether or not any Borrower or any other person or entity is joined as a party.

11.05. Subrogation . Neither Holdings nor any Subsidiary Guarantor shall exercise any right of subrogation or similar rights with respect to any payments it makes under this Guarantee until the Facility Termination Date. If any amounts are paid to Holdings or any Subsidiary Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Lender Parties and shall forthwith be paid to Collateral Agent for the benefit of the Lender Parties to reduce the amount of the Obligations, whether matured or unmatured.

11.06. Termination; Reinstatement . This Guarantee is a continuing and irrevocable guarantee of all Obligations now or hereafter existing and shall remain in full force and effect until the Facility Termination Date (or, as to any applicable Guarantor, until the sale or Disposition of such Guarantor in a transaction permitted hereunder). Notwithstanding the foregoing, this Guarantee shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of a Borrower or Holdings or any Subsidiary Guarantor is made, or any of the Lender Parties exercises its right of setoff, in respect of the Obligations and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared

 

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to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by any of the Lender Parties in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had not occurred and whether or not the Lender Parties are in possession of or have released this Guarantee and regardless of any prior revocation, rescission, termination or reduction. The obligations of Holdings and each Subsidiary Guarantor under this paragraph shall survive termination of this Guarantee.

11.07. Subordination . If the Required Lenders so request after the occurrence and during the continuance of any Event of Default, any such obligation or indebtedness of any Borrower owing to Holdings or any Subsidiary Guarantor, whether now existing or hereafter arising, including but not limited to any obligation of any Borrower to Holdings or any Subsidiary Guarantor as subrogee of the Lender Parties or resulting from Holdings’ or any Subsidiary Guarantor’s performance under this Guarantee (and, in each case, the payment thereof), shall be subordinated to the Payment in Full of the Obligations and shall be enforced and performance received by Holdings or any Subsidiary Guarantor as trustee for the Lender Parties and the proceeds thereof shall be paid over to the Collateral Agent to be applied to the Obligations, but without reducing or affecting in any manner the liability of Holdings or any Subsidiary Guarantor under this Guarantee.

11.08. Condition of Borrowers . Holdings and each Subsidiary Guarantor acknowledges and agrees that it has the sole responsibility for, and has adequate means of, obtaining from each Borrower and any other guarantor such information concerning the financial condition, business and operations of Borrowers and any such other guarantor as Holdings and each Subsidiary Guarantor requires, and that none of the Lender Parties has any duty, and neither Holdings nor any Subsidiary Guarantor is relying on the Lender Parties at any time, to disclose to Holdings or any Subsidiary Guarantor any information relating to the business, operations or financial condition of Borrowers or any other guarantor (Holdings and each Subsidiary Guarantor waiving any duty on the part of the Lender Parties to disclose such information and any defense relating to the failure to provide the same).

11.09. Limitation of Liability . Notwithstanding any provision of this Article XI to the contrary, it is intended that the provisions of this Article XI not constitute a “Fraudulent Conveyance” (as defined below). Consequently, each Lender Party and Loan Party agrees that if the provisions of this Article XI, or any Liens securing the obligations and liabilities arising pursuant to this Article XI, would, but for the application of this sentence, constitute a Fraudulent Conveyance, this Agreement and each such Lien shall be valid and enforceable only to the maximum extent that would not cause such provisions or such Lien to constitute a Fraudulent Conveyance, and such provisions shall automatically be deemed to have been amended accordingly at all relevant times. For purposes hereof, “ Fraudulent Conveyance ” means a fraudulent conveyance or fraudulent transfer under Section 548 of the Bankruptcy Code or a fraudulent conveyance or fraudulent transfer under the provisions of any applicable fraudulent conveyance or fraudulent transfer law or similar law of any Governmental Authority as in effect from time to time.

[Remainder of page is intentionally left blank; signature pages follow.]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

INITIAL BORROWER :
J.A. COSMETICS HOLDINGS, INC., a Delaware corporation
By:  

/s/ Frank Pisani

Name:   Frank Pisani
Title:   Vice President

Second Lien Credit Agreement


COLLATERAL AGENT :

U.S. BANK NATIONAL ASSOCIATION,

as Collateral Agent

By:  

/s/ Michael M. Hopkins

Name:  

Michael M. Hopkins

Title:  

Vice President

Second Lien Credit Agreement


LENDERS :

PENNANTPARK INVESTMENT CORPORATION, as a Lender

By:  

/s/ Arthur H. Penn

Name:   Arthur H. Penn
Title:   Chief Executive Officer

PENNANTPARK FLOATING RATE CAPITAL LTD., as a Lender

By:  

/s/ Arthur H. Penn

Name:   Arthur H. Penn
Title:   Chief Executive Officer

PENNANTPARK CREDIT OPPORTUNITIES FUND, LP, as a Lender

By:  

/s/ Arthur H. Penn

Name:   Arthur H. Penn
Title:   Managing Member of PennantPark Capital, LLC, the general partner of PennantPark Credit Opportunities Fund, LP

Second Lien Credit Agreement


Exhibit A

Form of Committed Loan Notice

Date:             ,        

 

To: U.S. Bank National Association, as Collateral Agent for the Lenders party to the Second Lien Credit Agreement dated as of January 31, 2014 (as extended, renewed, modified, supplemented, amended or restated from time to time, the “ Second Lien Credit Agreement ”), by and among J.A. Cosmetics Holdings, Inc., a Delaware corporation (“ Holdings ”), as the initial borrower (the “ Initial Borrower ” each of the Initial Borrower, and each Domestic Subsidiary of Initial Borrower who hereafter becomes a “Borrower” under the Second Lien Credit Agreement pursuant to a Joinder Agreement, are referred to herein individually as a “ Borrower ” and collectively as the “ Borrowers ”), the Guarantors party thereto, certain Lenders which are signatories thereto, and U.S. Bank National Association, as Collateral Agent. Capitalized terms used herein but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Second Lien Credit Agreement.

Ladies and Gentlemen:

[ The undersigned refers to the Second Lien Credit Agreement, the terms defined therein being used herein as therein defined, and hereby gives you notice irrevocably, pursuant to Section 2.02 of the Second Lien Credit Agreement, of a Borrowing requested by                      1 and, in connection therewith, sets forth the following information:

1. The Business Day of the proposed Borrowing is             ,         .

2. The aggregate amount of the proposed Borrowing is $        .

3. The aggregate principal amount of Term Loans is $        , of which $         consists of Eurodollar Rate Loans having an initial Interest Period of 3 months. ]

[The undersigned hereby certifies that the following statements will be true on the date of the proposed [Borrowing] , immediately before and after giving effect thereto and to the application of the proceeds therefrom:

(a) the representations and warranties of the Loan Parties contained in Article V of the Second Lien Credit Agreement or any other Loan Document are true and correct in all material respects (or in all respects for such representations and warranties that are by their terms already qualified as to materiality) on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are be true and correct in all material respects (or in all respects for such representations and warranties that are by their terms already qualified as to materiality) as of such earlier date; and

(b) no Default or Event of Default has occurred and is continuing or would immediately result from such proposed Credit Extension.]

 

1   Include relevant Borrower.


[J.A. COSMETICS HOLDINGS, INC.]/[J.A. COSMETICS US, INC.] , a Delaware corporation 2
By  

 

  Name  

 

  Title  

 

 

2   Prior to the consummation of the Closing Date Acquisition and the joinder by J.A. Cosmetics US, Inc., as a Borrower pursuant to a Joinder Agreement, J.A. Cosmetics Holdings, Inc. will be the signatory hereto. Upon the consummation of the Closing Date Acquisition and the joinder by J.A. Cosmetics US, Inc., as a Borrower pursuant to a Joinder Agreement, J.A. Cosmetics US, Inc. will be the signatory hereto.


Exhibit B

[Reserved]


Exhibit C-1

[Reserved]


This instrument, the indebtedness and any other rights and obligations evidenced hereby are subordinate in the manner and to the extent set forth in that certain Subordination and Intercreditor Agreement (the “ Intercreditor Agreement ”) dated as of January 31, 2014 among Bank of Montreal and U.S. Bank National Association, and each holder of this instrument, by its acceptance hereof, shall be bound by the provisions of the Intercreditor Agreement.

Exhibit C-2

Form of Term Loan Note

 

U.S. $                        ,        

F OR V ALUE R ECEIVED , the undersigned, J.A. Cosmetics Holdings, Inc., a Delaware corporation (“ Initial Borrower ”), hereby promises to pay to                      (the “ Lender ”) or its registered assigns at the principal office of the Collateral Agent in Hartford, Connecticut (or such other location as the Collateral Agent may designate to the Initial Borrower), in immediately available funds, the principal sum of                      Dollars ($        ) or, if less, the aggregate unpaid principal amount of all Term Loans made or maintained by such Lender to the Borrowers pursuant to the Second Lien Credit Agreement, together with interest on the principal amount of such Term Loan from time to time outstanding hereunder at the rates, and payable in the manner and on the dates, specified in the Second Lien Credit Agreement.    

This Note is one of the Term Loan Notes referred to in the Second Lien Credit Agreement dated as of January 31, 2014, among the Initial Borrower (the Initial Borrower, together with each Domestic Subsidiary of Initial Borrower who hereafter becomes a “Borrower” thereunder pursuant to a Joinder Agreement may be referred to individually, as a “ Borrower ” and collectively, as “ Borrowers ”), the Guarantors party thereto, the Lenders party thereto, and U.S. Bank National Association, as Collateral Agent (as extended, renewed, supplemented, modified, amended or restated from time to time, the “ Second Lien Credit Agreement ”), and this Note and the holder hereof are entitled to all the benefits and security provided for thereby or referred to therein, to which Second Lien Credit Agreement reference is hereby made for a statement thereof. All defined terms used in this Note, except terms otherwise defined herein, shall have the same meaning as in the Second Lien Credit Agreement. This Note shall be governed by and construed in accordance with the internal laws of the State of New York.

Voluntary prepayments may be made hereon, certain prepayments are required to be made hereon, and this Note may be declared due prior to the expressed maturity hereof, all in the events, on the terms and in the manner as provided for in the Second Lien Credit Agreement.

The Borrower hereby waives to the extent permitted by applicable law demand, presentment, protest or notice of any kind hereunder.

[ Signature Page Follows ]


J.A. COSMETICS HOLDINGS, INC. , a Delaware corporation 3
By  

 

  Name  

 

  Title  

 

 

3   Upon the consummation of the Closing Date Acquisition and the joinder by J.A. Cosmetics US, Inc., as a Borrower pursuant to a Joinder Agreement, J.A. Cosmetics US, Inc. will be the signatory hereto.


EXHIBIT D

TO

SECOND LIEN CREDIT AGREEMENT

COMPLIANCE CERTIFICATE

J.A. COSMETICS US, INC.

Date:             , 20        

This certificate is given by J.A. Cosmetics US, Inc., a Delaware corporation, in its capacity as Borrower Agent, pursuant to Section 6.02(a) of that certain Second Lien Credit Agreement dated as of January 31, 2014 among Borrower Agent, J.A. Cosmetics Holdings, Inc., a Delaware corporation (the “ Initial Borrower ”; the Initial Borrower and each Domestic Subsidiary of Initial Borrower that becomes a “Borrower” thereunder pursuant to a Joinder Agreement collectively, the “ Borrowers ”), the other Loan Parties from time to time party thereto, the Lenders from time to time party thereto, and U.S. Bank National Association, as Collateral Agent for Lenders (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the “ Second Lien Credit Agreement ”). Capitalized terms used herein without definition shall have the meanings set forth in the Second Lien Credit Agreement.

The undersigned Responsible Officer hereby certifies to Collateral Agent and Lenders, solely as an officer of Borrower Agent and not individually, as of the date hereof, that:

(a) the financial statements delivered with this certificate in accordance with Section 6.01(a) and/or 6.01(b) of the Second Lien Credit Agreement were prepared in accordance with GAAP and fairly present in all material respects the financial condition of Holdings and its Subsidiaries as of the dates indicated therein [, subject to year-end adjustments and the absence of footnotes] [note:   delete bracketed text where the Compliance Certificate is delivered in conjunction with the annual audited financial statements.]

(b) I have reviewed the terms of the Second Lien Credit Agreement and have made, or caused to be made under my supervision, a review in reasonable detail of the transactions and conditions of Holdings and its Subsidiaries during the accounting period covered by such financial statements;

(c) such review has not disclosed the existence as of the date hereof of a Default or an Event of Default, except as set forth in Schedule 1 hereto, which includes a description of the nature of such Default or Event of Default and what action Borrowers have taken, are undertaking and/or propose to take with respect thereto;

 

1


(d) Borrowers are in compliance with the covenants contained in Section 7.12(a) and 7.12(b) of the Second Lien Credit Agreement, as demonstrated by the calculation of such covenants below, except as set forth below;

(e) subsequent to the delivery of the last Compliance Certificate submitted pursuant to the Second Lien Credit Agreement, except as set forth in Schedule 2 hereto, no Loan Party has (i) obtained any U.S. Federal registration of a patent or trademark, or (ii) applied for the U.S. Federal registration of a patent or trademark;

(f) subsequent to the delivery of the last Compliance Certificate submitted pursuant to the Second Lien Credit Agreement, except as set forth in Schedule 3 hereto, (i) no Subsidiary of a Loan Party has merged or consolidated with or liquidated or dissolved into a Loan Party and (ii) no Subsidiary that is not a Loan Party has merged into any other Subsidiary that is not a Loan Party;

(g) subsequent to the delivery of the last Compliance Certificate submitted pursuant to the Second Lien Credit Agreement, except as set forth in Schedule 4 hereto (which shall set forth the information in reasonable detail), there has been no material change in accounting policies or financial reporting practices by any Loan Party or any Subsidiary; and

(h) attached hereto as Schedule 5 is a correct calculation of the Available Amount as of [            ] .

IN WITNESS WHEREOF, the undersigned officer has executed and delivered this certificate, solely as an officer of Borrower Agent and not individually, this      day of             ,         .

 

J.A COSMETICS US, INC.
By  

 

Name  

 

Title  

 

  of the Borrower Agent

 

2


CONSOLIDATED TOTAL NET LEVERAGE RATIO

(Section 7.12(a))

 

Consolidated Total Net Funded Debt is defined as follows:

  
The sum (but without duplication) of the aggregate principal amount of Indebtedness of Holdings and its Subsidiaries as of the last day of the Measurement Period, determined on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with any Permitted Acquisition or other permitted Investment), solely to the extent consisting of (a) obligations for borrowed money, (b) obligations under Capital Leases and synthetic or other similar financing leases, (c) obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (d) direct or contingent obligations arising under letters of credit (including standby and commercial but excluding all Letters of Credit (as defined in the Senior Loan Agreement), bankers’ acceptances, bank guarantees and similar instruments, (e) obligations to pay the deferred purchase price of property or services (other than (i) accrued expenses and trade payables incurred in the Ordinary Course of Business, (ii) any working capital adjustment or any earnout obligation, deferred compensation, non-compete or similar obligations under employment agreements of such Person and (iii) any earnout obligations and other similar deferred purchase price obligations (other than obligations with respect to seller notes) solely to the extent such earnout obligations and other similar deferred purchase price obligations (other than obligations with respect to seller notes) either (x) are subordinated in right of payment to the Obligations on terms reasonably satisfactory to the Collateral Agent or (y) are payable (including with respect to principal, interest and fees) no earlier than the date that is 180 days after the Facility Termination Date), in each case, only if due and payable, (f) obligations with respect to seller notes, (g) obligations with respect to the redemption, repayment or other repurchase or payment in respect of any Disqualified Equity Interest; provided, Consolidated Total Net Funded Debt shall not include (i) obligations under Swap Contracts entered into in the Ordinary Course of Business for bona fide hedging purposes and not for speculative purposes and (ii) unsecured and non-interest bearing obligations of Holdings arising as a result of the exercise of the Seller Put Option   
  

 

 

3


Less:  Unrestricted cash and Cash Equivalents of any Loan Party (other than any Net Cash Proceeds from the issuance by Holdings of any Permitted Cure Securities, or cash common equity contributions received by Holdings pursuant to Section 8.04 of the Second Lien Credit Agreement) with respect to which Collateral Agent has a perfected Lien, not to exceed $10,000,000 in the aggregate; provided, that notwithstanding the foregoing, until the expiration of the time period permitted under Section 6.14 of the Second Lien Credit Agreement, such cash and Cash Equivalents shall be deducted for purposes of calculating Consolidated Total Net Funded Debt regardless of whether Collateral Agent has a perfected Lien on such cash and Cash Equivalents

  
  

 

 

 

Consolidated Total Net Funded Debt as of the last day of the Measurement Period

   $     
  

 

 

 

Adjusted Consolidated EBITDA for the Measurement Period is defined as follows 1 :

  
Consolidated net income (or loss) for the Measurement Period of Holdings, the Borrowers, and their Subsidiaries, but excluding: (a) the income (or loss) of any Person that is not a Subsidiary, provided that consolidated net income shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash to a Borrower or Subsidiary thereof from a Person that is not a Subsidiary in respect of such period and (b) except as otherwise provided below, the income (or loss) of any Person accrued prior to the date it became a Subsidiary of a Borrower or is merged into or consolidated with Borrower or a Subsidiary of a Borrower; provided, extraordinary, non-recurring or unusual gains, losses, charges or expenses shall be excluded from the calculation of consolidated net income (or loss) (it being understood, for the avoidance of doubt, that items that are subject to a cap in other areas of the calculation of Adjusted Consolidated EBITDA shall not be permitted to be added-back on the basis of being “unusual” or “non-recurring”)    $                
  

 

 

 

 

1   To include Acquired EBITDA and exclude Disposed EBITDA per the paragraph on page 10 of this certificate.

 

4


Plus (without duplication):

  

Any provision for taxes based on income, profits or capital, including but not limited to federal, provincial, state, franchise and similar taxes and foreign withholding taxes of such Person paid or accrued during such period (including penalties, interest, costs and expenses related to such taxes or arising from any tax examinations) deducted in the determination of consolidated net income for the Measurement Period

  
  

 

Interest expense (including but not limited to (i) net payments, if any, pursuant to interest rate Swap Contracts entered into for the purpose of hedging interest rate risk, (ii) bank fees, (iii) costs of surety bonds in connection with financing activities, and (iv) fees, charges, commissions, and discounts owed with respect to letters of credit or bankers acceptances) (less, interest income) deducted (or included) in the determination of consolidated net income for the Measurement Period

  
  

 

Amortization and depreciation (including but not limited to the amortization of deferred financing fees or costs and the amortization of original issue discount resulting from the issuance of Indebtedness at less than par and, to the extent a synthetic or other similar financing lease is Indebtedness, rental payments in connection with such leases that are expensed) deducted in the determination of consolidated net income for the Measurement Period

  
  

 

Losses (less gains) from asset Dispositions (other than asset Dispositions in the Ordinary Course of Business) included in the determination of consolidated net income for the Measurement Period

  
  

 

Non-cash expenses, charges or losses (less non-cash gains or income), including any write-offs or write-downs, including impairment charges, deducted (or included) in the determination of consolidated net income for the Measurement Period; provided that if any such amount represents an accrual or reserve for a potential cash item in any future period, the cash payment in respect thereof that is paid in a subsequent Measurement Period shall be deducted from Adjusted Consolidated EBITDA to such extent in such subsequent Measurement Period

  
  

 

 

5


Expenses and fees deducted in the determination of consolidated net income and incurred during the Measurement Period to consummate the Transaction, whether occurring before or within 180 days after the Closing Date

  
  

 

Expenses and fees (including expenses and fees paid to Collateral Agent and Lenders and the lenders under the Senior Indebtedness Documents and any other Indebtedness) deducted in the determination of consolidated net income and incurred during the Measurement Period and after the Closing Date in connection with the consummation or administration of the Loan Documents and the Senior Indebtedness Documents or the documents governing such other Indebtedness (including in connection with any actual or proposed amendment, supplement, waiver or other modification to the Loan Documents or Senior Indebtedness Documents or any other Indebtedness, whether or not consummated)

  
  

 

Fees and expenses incurred under the Management Agreement, and fees, expenses and indemnifications of directors, in each case permitted under the Second Lien Credit Agreement and deducted in the determination of consolidated net income during the Measurement Period

  
  

 

Expenses deducted in the determination of consolidated net income during the Measurement Period and covered by indemnification or other reimbursement provisions, or purchase price adjustments in connection with any Permitted Acquisition or other permitted Investment (to the extent deducted from the determination of consolidated net income during the Measurement Period), in each case to the extent actually received in cash during such Measurement Period, or to the extent that Borrower Agent reasonably expects a payment in respect of the applicable indemnification or other reimbursement provision, or purchase price adjustment will be received in cash within 180 days after the date such expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually paid, indemnified or reimbursed in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period)

  
  

 

 

6


Expenses and fees deducted in the determination of consolidated net income during the Measurement Period and which are incurred in connection with the consummation (or attempted or proposed or anticipated consummation) of any Permitted Acquisitions or any Acquisitions which would reasonably be expected to have (if they had been consummated) satisfied the requirements of the defined term “Permitted Acquisition” but for the fact they are not consummated; provided that the add-back for all amounts attributable to all such non-consummated transactions shall not exceed $1,000,000 (or such higher amount reasonably acceptable to Collateral Agent) in any Fiscal Year

  
  

 

Expenses and fees deducted in the determination of consolidated net income during the Measurement Period and which are incurred in connection with any proposed or actual issuance of debt or equity, restricted payment, Investment permitted under Section 7.03(b) or (l) of the Second Lien Credit Agreement or asset Dispositions (other than asset Dispositions in the Ordinary Course of Business); provided, that the add-back for all amounts attributable to all such non-consummated transactions shall not exceed $1,000,000 (or such higher amount reasonably acceptable to Collateral Agent) in any Fiscal Year

  
  

 

Without duplication of any other add-back set forth herein, losses, charges or expenses deducted in the determination of consolidated net income during the Measurement Period, but for which insurance or indemnity recovery is actually received in cash during the Measurement Period or to the extent that Borrower Agent reasonably expects such insurance or indemnity recovery will be received in cash within 180 days after the date such loss, charge or expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually indemnified or recovered in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period)

  
  

 

 

7


Without duplication of any other add-back set forth herein, expenses, charges or losses deducted in the determination of consolidated net income during the Measurement Period and reimbursed by third parties to the extent such reimbursements are actually received in cash during the Measurement Period or to the extent that Borrower Agent reasonably expects such reimbursement will be received in cash within 180 days after the date such loss, charge or expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually reimbursed in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period)

  
  

 

Non-cash exchange or translation losses (less non-cash gains) deducted (or included) in the determination of consolidated net income during the Measurement Period and arising from foreign currency hedging transactions or currency fluctuations

  
  

 

Non-cash deductions or charges (less non-cash gains or positive adjustments, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Adjusted Consolidated EBITDA in any prior Measurement Period and excluding any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase Adjusted Consolidated EBITDA in such prior period) to net income attributable to purchase accounting adjustments made in accordance with GAAP

  
  

 

the amount of any earn out or other similar deferred purchase price obligation (other than obligations constituting salary payments pursuant to ordinary course employment agreements and salary bonuses payable thereunder) which was reserved or paid during such Measurement Period and deducted in the calculation of consolidated net income for such Measurement Period, to the extent such obligations are permitted under the Second Lien Credit Agreement

  
  

 

 

8


(i) the amount of any deferred compensation, signing bonuses, retention and relocation costs and expenses, restructuring charges, integration costs or other business optimization expenses, costs associated with establishing new facilities or reserves, including any one-time costs incurred in connection with acquisitions, and costs related to the closure and/or consolidation of facilities, in each case, to the extent deducted in the calculation of consolidated net income for the Measurement Period (collectively, the “ Restructuring Charges, Business Optimization Expenses and Reserves ”), as calculated in the good faith determination of the Borrowers and as certified by the Borrower Agent’s chief financial officer, chief executive officer, controller or other comparable executive and (ii) the amount of cost savings, operating expense reductions, and synergies projected by the Borrowers in good faith to be realized as a result of specified actions taken or initiated prior to or during the 12-month period following the date thereof (which will be added to Adjusted Consolidated EBITDA as so projected until fully realized and calculated on a Pro Forma Basis as though such cost savings, operating expense reductions and synergies had been realized during such period), net of the amount of actual benefits realized during such period from such actions; provided that (x) such cost savings, operating expense reductions and synergies are reasonably identifiable and factually supportable (in the good faith determination of the Borrowers) and (y) such actions have been taken or initiated or are reasonably expected to be taken, no later than 12 months after the last day of the relevant Measurement Period (it being agreed and understood that no add-back for Restructuring Charges, Business Optimization Expenses and Reserves shall be permitted in any subsequent Measurement Period where any such action is discontinued or is no longer reasonably expected to be taken) (collectively, the “ Cost Savings and Synergies ”); provided, that the aggregate amount of add-backs made for the revenue synergies portion of Cost Savings and Synergies during any Measurement Period shall not exceed 10% (or such greater amount approved by Collateral Agent) of Adjusted Consolidated EBITDA on a Pro Forma Basis for that period calculated after giving pro forma effect to the inclusion of the add-backs pursuant to this clause and, without duplication, the Pro Forma Adjustments, and the add-backs pursuant to this clause shall not be duplicative of other adjustments for the same Measurement Period; provided, further, that the aggregate amount of add-backs made for Restructuring Charges, Business Optimization Expenses and Reserves and Cost Savings and Synergies during any Measurement Period, together with the aggregate Pro Forma

  
  

 

 

9


Adjustments during such Measurement Period, shall not exceed 20% of Adjusted Consolidated EBITDA on a Pro Forma Basis for that period calculated after giving pro forma effect to the inclusion of the add-backs pursuant to this clause and after giving effect to the Pro Forma Adjustments as set forth below, and the add-backs pursuant to this clause shall not be duplicative of other adjustments for the same Measurement Period

                    

 

10


the amount of any severance costs to the extent deducted in the calculation of consolidated net income for the Measurement Period, as calculated in the good faith determination of the Borrowers and as certified by the Borrower Agent’s chief financial officer, chief executive officer, controller or other comparable executive

  
  

 

any costs or expense incurred by Holdings, the Borrowers or a Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of Holdings (or the Borrowers through Holdings) or Net Cash Proceeds of an issuance of Equity Interests (other than Disqualified Equity Interests) of Holdings or the Borrowers

  
  

 

proceeds received during such Measurement Period by Holdings and its Subsidiaries of business interruption insurance or business interruption proceeds that Borrower Agent reasonably expects will be received in cash within 180 days after the date of the business interruption event giving rise to such proceeds (with a deduction in the applicable future Measurement Period for any amount so added back to the extent not actually received in a subsequent Measurement Period and added back hereto in a prior Measurement Period, provided, that if such proceeds are actually received in a subsequent Measurement Period and previously added back in a prior Measurement Period, such amount shall not be permitted to be added back for such subsequent Measurement Period), in each case, to the extent not already included in consolidated net income

  
  

 

payments to or on behalf of Holdings or any indirect parent company of the Borrowers for out-of-pocket legal, accounting and filing costs, director fees, expenses and indemnities and other overhead expenses incurred in the Ordinary Course of Business for the benefit of Borrowers and their Subsidiaries or otherwise related to Holdings’ or such indirect parent company’s ownership of Borrowers and their Subsidiaries, in each case, to the extent deducted in the calculation of consolidated net income

  
  

 

 

11


Pro Forma Adjustments (as defined in the Second Lien Credit Agreement)

  
  

 

 

 

for purposes of compliance with the financial covenants set forth in Sections 7.12(a) and (b), the amount of any proceeds from the issuance of Permitted Cure Securities or any cash common equity contributions received in connection with an exercise of a Cure Right pursuant to Section 8.04 of the Second Lien Credit Agreement in respect of such Measurement Period

  
  

 

 

 

Less:

  

Cash payments made during such Measurement Period in respect of an accrual or reserve added back to consolidated net income in the calculation of Adjusted Consolidated EBITDA in a prior Measurement Period

  
  

 

 

 
Adjusted Consolidated EBITDA for the Measurement Period (for use in Section 7.12(b) of the Compliance Certificate)  2    $                
  

 

 

 

 

2   Notwithstanding the foregoing, Adjusted Consolidated EBITDA for each period set forth below shall be deemed to be the amount set forth below opposite such month (subject to Pro Forma Adjustments and as a result of acquisitions, all as set forth above):

 

Period    Consolidated EBITDA  

Quarter ending June 30, 2013

   $ 3,785,428   

Quarter ending September 30, 2013

   $ 8,112,506   

Month ending October 31, 2013

   $ 4,659,358   

Month ending November 30, 2013

   $ 4,780,369   

 

12


Notwithstanding the foregoing there shall be included in determining Adjusted Consolidated EBITDA for any period, without duplication, (A) the Acquired EBITDA of any Person, all or substantially all of the assets of a Person, or any business unit, line of business or division of any Person acquired by the Borrowers or any Subsidiary during such period (but not the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired), to the extent not subsequently sold, transferred or otherwise disposed of by the Borrowers or such Subsidiary during such Measurement Period (each such Person, property, business or asset acquired and not subsequently so disposed of, an “ Acquired Entity or Business ”), based on the actual Acquired EBITDA of such Acquired Entity or Business for such Measurement Period (including the portion thereof occurring prior to such acquisition) and (B) an adjustment in respect of each Acquired Entity or Business equal to the amount of the Pro Forma Adjustment with respect to such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition), in the case of each of the foregoing clauses (A) and (B), as specified in a certificate executed by a Responsible Officer and delivered to the Collateral Agent; provided, that the aggregate amount of Pro Forma Adjustments for such period, together with the aggregate add-backs to consolidated net income made for Restructuring Charges, Business Optimization Expenses and Reserves and Cost Savings and Synergies during such period, shall not exceed 20% of Adjusted Consolidated EBITDA on a Pro Forma Basis for that period calculated after giving pro forma effect to the Pro Forma Adjustments pursuant to this clause and, without duplication, the add-backs to consolidated net income made for Restructuring Charges, Business Optimization Expenses and Reserves and Cost Savings and Synergies, and the Pro Forma Adjustments pursuant to this clause shall not be duplicative of other adjustments for the same period. There shall be excluded in determining Adjusted Consolidated EBITDA for any period the Disposed EBITDA of any Person, all or substantially all of the assets of a Person, or any business unit, line of business or division of any Person sold, transferred or otherwise disposed of, closed or classified as discontinued operations by the Borrowers or any Subsidiary during such Measurement Period (each such Person, property, business or asset so sold or disposed, a “ Sold Entity or Business ”), based on the actual Disposed EBITDA of such Sold Entity or Business for such Measurement Period (including the portion thereof occurring prior to such sale, transfer, disposition or conversion).

 

Consolidated Total Net Leverage Ratio (ratio of Consolidated Total Net Funded Debt as of the last day of the Measurement Period to Adjusted Consolidated EBITDA for the Measurement Period)           to 1.0   

Maximum Permitted Consolidated Total Net Leverage Ratio for the Measurement Period

          to 1.0   

In Compliance

     Yes/No   

 

13


CONSOLIDATED INTEREST COVERAGE RATIO

(Section 7.12(b))

 

Interest expenses paid (or required to be paid) in cash during the Measurement Period, net of (x) interest income received in cash and (y) net payments, if any, received pursuant to interest rate obligations under any Swap Contracts with respect to Indebtedness, by Holdings and its Subsidiaries for the Measurement Period (“ Total Cash Interest Expenses ”) 3    $     
  

 

 

 
Adjusted Consolidated EBITDA for the Measurement Period (calculated in the manner required by Section 7.12(a) of the Compliance Certificate)    $                
  

 

 

 
Consolidated Interest Coverage Ratio (Ratio of Adjusted Consolidated EBITDA to Total Cash Interest Expenses) for the Measurement Period           to 1.0   
Minimum required Consolidated Interest Coverage Ratio for the Measurement Period           to 1.0   
In Compliance      Yes/No   

 

3   (a) For purposes of calculating the Consolidated Interest Coverage for the Measurement Periods ending March 31, 2014, June 30, 2014, September 30, 2014 and December 31, 2014, Total Cash Interest Expenses for each such Measurement Period shall be calculated by taking the amount of interest for the period from the Closing Date through the last day of the applicable Measurement Period and multiplying such amount by a fraction, the numerator of which is 365 and the denominator of which is the number of days from the Closing Date through the last day of such Measurement Period.

(b) For the avoidance of doubt, Total Cash Interest Expense shall be calculated on a Pro Forma Basis.

 

14


CALCULATION OF CONSOLIDATED SENIOR NET LEVERAGE RATIO

 

Consolidated Senior Net Debt is defined as follows:   
Consolidated Total Net Funded Debt (calculated in Section 7.12(a) of the Compliance Certificate) as of the last day of the Measurement Period    $     
  

 

 

 

Less:  the outstanding principal balance of all Subordinated Indebtedness (as defined in the Senior Loan Agreement) as of the last day of the Measurement Period

   $     
  

 

 

 
Consolidated Senior Net Debt as of the last day of the Measurement Period    $     
  

 

 

 
Adjusted Consolidated EBITDA (calculated in Section 7.12(a) of the Compliance Certificate) for the Measurement Period    $                
  

 

 

 
Consolidated Senior Net Leverage Ratio (ratio of Consolidated Senior Net Debt as of the last day of the Measurement Period to Adjusted Consolidated EBITDA for the Measurement Period)           to 1.0   

 

15


EXHIBIT E

TO

SECOND LIEN CREDIT AGREEMENT

EXCESS CASH FLOW CERTIFICATE

J.A. COSMETICS US, INC.

Date:             , 20    

This certificate is given by J.A. Cosmetics US, Inc., a Delaware corporation, in its capacity as Borrower Agent, pursuant to Section 6.02(b) of that certain Second Lien Credit Agreement dated as of January 31, 2014 among Borrower Agent, J.A. Cosmetics Holdings, Inc., a Delaware corporation (the “ Initial Borrower ”; the Initial Borrower and each Domestic Subsidiary of Initial Borrower that becomes a “Borrower” thereunder pursuant to a Joinder Agreement collectively, the “ Borrowers ”), the other Loan Parties from time to time party thereto, the Lenders from time to time party thereto, and U.S. Bank National Association, as Collateral Agent for Lenders (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the “ Second Lien Credit Agreement ”). Capitalized terms used herein without definition shall have the meanings set forth in the Second Lien Credit Agreement.

The undersigned Responsible Officer hereby certifies to Collateral Agent and Lenders, solely as an officer of Borrower Agent and not individually, as of the date hereof that:

 

  (a) set forth below is a correct calculation of Excess Cash Flow for the year ended December 31, 20     and a correct calculation of the required prepayment of:

$        ; and

 

  (b) Schedule I attached hereto is based on the audited financial statements which have been delivered to the Collateral Agent in accordance with subsection 6.01(a) of the Second Lien Credit Agreement.

[Remainder of page intentionally blank; signature page follows]

 

1


IN WITNESS WHEREOF, the undersigned officer has executed and delivered this certificate, solely as an officer of Borrower Agent and not individually, this      day of             , 201    .

 

J.A. COSMETICS US, INC., as Borrower Agent
By  

 

Name  

 

Title  

 

 

2


Schedule I

to Excess Cash Flow Certificate

J.A. COSMETICS US, INC.

Calculations as of             , 201    

 

Excess Cash Flow Calculation  
A.   Cash Flow  
  1.   Adjusted Consolidated EBITDA for the applicable Fiscal Year (calculated in the manner set forth in the Compliance Certificate, but for the avoidance of doubt, excluding any Cure Amount included in the calculation of Adjusted Consolidated EBITDA)   $            
  Less, in each case, during the applicable Fiscal Year and without duplication: 1  
  2.   Unfinanced Capital Expenditures (calculated in the manner set forth in Schedule III hereto)   $            
  3.   Any taxes based on income, profits or capital, including but not limited to federal, provincial, state, franchise and similar taxes and foreign withholding taxes paid during such period (including penalties, interest, costs and expenses related to such taxes or arising from any tax examination) paid in cash and deducted in the determination of net income, net of any cash tax credit or other cash tax benefits received   $            
  4.   Interest expense (including but not limited to (i) net payments, if any, pursuant to interest rate Swap Contracts entered into for the purpose of hedging interest rate risk, (ii) bank fees, (iii) costs of surety bonds in connection with financing activities, and (iv) fees, charges, commissions, and discounts owed with respect to letters of credit or bankers acceptances) paid in cash, net of interest income received in cash, by Holdings and its Subsidiaries   $            
  5.   The aggregate amount of amortization payments required to be made, and actually made, by Holdings and its Subsidiaries in respect of all principal on all Indebtedness   $            

 

1 For the avoidance of doubt, (a) the deductions set forth in items A2 through A10 shall exclude such amounts attributable to the target of a Permitted Acquisition prior to the consummation of such Acquisition and (b) any amounts included as Unfinanced Capital Expenditures shall not be included as a deduction in any other item.

 

3


  6.   (i) Fees and expenses paid pursuant to the Management Agreement and (ii) directors’ fees, expenses and indemnifications, in case of each of the foregoing clauses (i) and (ii), to the extent paid in cash, permitted to be paid pursuant to the Second Lien Credit Agreement and added back to net income in the calculation of Adjusted Consolidated EBITDA   $            
  7.   Purchase price paid in cash in respect of all Permitted Acquisitions or Investments made in cash, in each instance permitted pursuant to Section 7.03(b), (f) or (l) of the Second Lien Credit Agreement to the extent not funded with proceeds from the incurrence of Indebtedness (other than Revolving Loans (as defined in the Senior Loan Agreement)), the issuance of Equity Interests (including capital contributions) or the Available Amount   $            
  8.   Transaction fees, costs and expenses paid in cash and incurred in connection with (i) the consummation (or attempted or proposed or anticipated consummation) of any Permitted Acquisitions or any Acquisitions which would reasonably be expected to have (if they had been consummated) satisfied the requirements of the defined term “Permitted Acquisition” but for the fact that they are not consummated and (ii) any proposed or actual issuance of debt or equity, restricted payment or other Investment permitted pursuant to Section 7.03(b) or (l), in each instance in (i) and (ii) to the extent (a) not funded with proceeds of Indebtedness (other than Revolving Loans (as defined in the Senior Loan Agreement)), from the issuance of Equity Interests (including capital contributions) or the Available Amount and (b) added back to net income in the determination of Adjusted Consolidated EBITDA   $            
  9.   Fees and expenses (including those paid to Collateral Agent and the Lenders and the lenders under the Senior Indebtedness Documents and any other Indebtedness) paid in cash in connection with the consummation or administration of the Loan Documents or Senior Indebtedness Documents (including, but not limited to fees and expenses in connection with the Transaction) or any other Indebtedness (including in connection with any actual or proposed amendment, supplement, waiver or other modification to the Loan Documents or Senior Indebtedness Documents or any other Indebtedness, whether or not  

 

4


    consummated), to the extent added back to net income in the determination of Adjusted Consolidated EBITDA, in each instance to the extent not funded with proceeds of Indebtedness (other than Revolving Loans (as defined in the Senior Loan Agreement)) or from the issuance of Equity Interests (including capital contributions)   $            
  10.   Purchase price adjustments in connection with any Permitted Acquisition or other permitted Investment, in each case to the extent paid in cash during such Fiscal Year not funded with proceeds of Indebtedness (other than Revolving Loans (as defined in the Senior Loan Agreement)) or from the issuance of Equity Interests (including capital contributions)   $            
  11.   the amount of any earn out obligation paid in cash during such Fiscal Year   $            
  12.   Restructuring Charges, Business Optimization Expenses and Reserves (as defined in Exhibit D to the Second Lien Credit Agreement) to the extent paid in cash and added back to net income in the determination of Adjusted Consolidated EBITDA   $            
  13.   Cost Savings and Synergies (as defined in Exhibit D to the Second Lien Credit Agreement) to the extent added back to net income in the determination of Adjusted Consolidated EBITDA   $            
  14.   proceeds received by Holdings and its Subsidiaries of business interruption insurance to the extent added back to net income in the determination of Adjusted Consolidated EBITDA   $            
  15.   Restricted Payments paid in cash and permitted by Section 7.06(c), (d) or (e) of the Second Lien Credit Agreement   $            
  16.   Any increases in working capital of Holdings and its Subsidiaries (as calculated pursuant to Schedule II below)   $            
  17.   Amount of any proceeds from the issuance of Permitted Cure Securities or cash common equity contributions received in connection with an Equity Cure pursuant to Section 8.04 of the Second Lien Credit Agreement, to the extent added back to net income in the determination of Adjusted Consolidated EBITDA and without duplication of amounts excluded pursuant to A.1. above   $            
  18.   All other add backs to Adjusted Consolidated EBITDA to the extent paid in cash and added back to net income in the  

 

5


    determination of Adjusted Consolidated EBITDA, in each instance to the extent not funded with proceeds from the incurrence of Indebtedness (other than Revolving Loans (as defined in the Senior Loan Agreement)), the issuance of Equity Interests (including capital contributions), the Available Amount, insurance proceeds, indemnity payments or other third party reimbursements   $            
  19.   cash losses from extraordinary, non-recurring or unusual items   $            
  20.   the amount paid in cash in respect of any item for which, in a prior Fiscal Year, a non-cash loss, expense, accrual or charge (other than any non-cash accrual for a potential cash item in any future period, the cash payment of which was paid in the applicable Fiscal Year) was included in determining Adjusted Consolidated EBITDA in such prior Fiscal Year   $            
  21.   severance costs to the extent paid in cash and added back to net income in the determination of Adjusted Consolidated EBITDA   $            
B.   Total deductions from Adjusted Consolidated EBITDA (sum of A2 through A21 above)   $            
C.   Any cash gains from extraordinary items, other than any business interruption proceeds   $            
D.   Any decreases in working capital of Holdings and its Subsidiaries for the applicable Fiscal Year (as calculated pursuant to Schedule II below)   $            
E.   Excess Cash Flow (A1 minus B plus C plus D above)   $            
F.   Applicable ECF Percentage   [50%][25%][0%] 2
G.   Gross Excess Cash Flow Prepayment Amount (result of E multiplied by F above)   $            
H.   The aggregate amount of voluntary prepayments of the Term Loans (other than Discounted Voluntary Prepayments), the Term Loans (as defined in the Senior Loan Agreement) and the Revolving Loans (as defined in the Senior Loan Agreement) to the extent accompanied by a permanent reduction in the Revolving Credit Commitment (as defined in the Senior Loan Agreement), in each case, made (i) during such Fiscal Year (other than any voluntary prepayments made during the first 120 days of such Fiscal Year to the extent such voluntary prepayments were credited in the  

 

2 Choose applicable percentage pursuant to Section 2.06(b)(i) of the Second Lien Credit Agreement.

 

6


  calculation of the Excess Cash Flow prepayment for the prior Fiscal Year) or (ii) within 120 days after the end of the Fiscal Year for which such Excess Cash Flow is being calculated that are applied in the manner set forth in Section 2.06(b)(iv) of the Second Lien Credit Agreement, in each case, to the extent not financed with proceeds from the incurrence of long-term Indebtedness.   $            
I.   Net Excess Cash Flow Prepayment Amount (G minus H above)   $            

For the avoidance of doubt, for purposes of calculating Excess Cash Flow for any Fiscal Year, for each Permitted Acquisition or other Investment constituting an Acquisition permitted to be made under the Second Lien Credit Agreement consummated during such Fiscal Year, the Adjusted Consolidated EBITDA of a target of any such Permitted Acquisition or Investment shall be included in such calculation only from and after the date of the consummation of such Permitted Acquisition and/or Investment and (y) for the purposes of calculating Net Working Capital, the (A) total assets of a target of such Permitted Acquisition (other than cash and Cash Equivalents), as calculated as at the date of consummation of the applicable Permitted Acquisition, which may properly be classified as current assets on a consolidated balance sheet of Holdings and its Subsidiaries in accordance with GAAP (assuming, for the purpose of this clause (A), that such Permitted Acquisition has been consummated) and (B) the total liabilities of Holdings and its Subsidiaries, as calculated as at the date of consummation of the applicable Permitted Acquisition, which may properly be classified as current liabilities on a consolidated balance sheet of Holdings and its Subsidiaries in accordance with GAAP (assuming, for the purpose of this clause (B), that such Permitted Acquisition has been consummated), shall, in the case of both immediately preceding clauses (A) and (B), be calculated as the difference between the Net Working Capital at the end of the applicable Fiscal Year from the date of consummation of the Permitted Acquisition.

 

7


Schedule II

to Excess Cash Flow Certificate

Decrease (increase) in Working Capital, for the purposes of the calculation of Excess Cash Flow, means the following:

 

     Beg. of Period      End of Period  

Consolidated current assets:

   $                    $                

Less (to the extent included in current assets):

     

Cash

     

Cash Equivalents

     

Deferred Tax Assets

     

Adjusted current assets

   $         $     

Consolidated current liabilities:

   $         $     

Less (to the extent included in current liabilities):

     

Revolving Loans (as defined in the Senior Loan Agreement)

     

Current portion of Indebtedness and accrued interest thereon

     

Deferred Tax Liabilities

     

Current liabilities consisting of deferred revenue

     

Adjusted current liabilities

   $         $     

Working Capital (adjusted current assets minus adjusted current liabilities)

   $         $     

Decrease (Increase) in Working Capital (beginning of period minus end of period Working Capital)

      $     

 

8


Schedule III

to Excess Cash Flow Certificate

Calculation of Unfinanced Capital Expenditures

 

Expenditures capitalized during the Fiscal Year by Holdings and its Subsidiaries that, in conformity with GAAP, are or are required to be included as additions to property, plant or equipment or other long-term assets   $            
Less, in each instance to the extent included above and without duplication:  
(i)   expenditures made in connection with the replacement, substitution, restoration or repair of assets to the extent financed with (x) insurance proceeds paid on account of the loss of or damage to the assets being replaced, restored or repaired or (y) awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced  
(ii)   the purchase price of equipment that is purchased substantially concurrently with the trade-in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time,  
(iii)   the purchase of plant, property or equipment to the extent financed with the proceeds of Dispositions that are not required to be applied to prepay Term Loans pursuant to Section 2.06(b)(ii) of the Second Lien Credit Agreement  
(iv)   expenditures that are accounted for as capital expenditures by Holdings, the Borrowers or any Subsidiary and that actually are paid for or reimbursed by a Person other than Holdings, the Borrowers or any Subsidiary  
(v)   expenditures that are paid with proceeds of Equity Interests (including capital contributions) or the Available Amount  
(vi)   the book value of any asset owned by the Borrowers or any Subsidiary prior to or during such period to the extent that such book value is included as a capital expenditure during such period as a result of such Person reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having been made in such period; provided that (x) any expenditure necessary in order to  

 

9


  permit such asset to be reused shall be included as a Consolidated Capital Expenditure during the period in which such expenditure actually is made and (y) such book value shall have been included in Consolidated Capital Expenditures when such asset was originally acquired  
(vii)   any capitalized interest expense reflected as additions to property, plant or equipment in the consolidated balance sheet of Holdings, the Borrowers and their Subsidiaries  
(viii)   any non-cash compensation or other non-cash costs reflected as additions to property, plant or equipment in the consolidated balance sheet of Holdings, the Borrowers and their Subsidiaries  
Equals:   Consolidated Capital Expenditures   $            

Less:    

  Consolidated Capital Expenditures financed during the Fiscal Year under Capital Leases or other Indebtedness (excluding drawings under the Revolving Credit Facility (as defined in the Senior Loan Agreement))  
Equals:   Unfinanced Capital Expenditures   $

 

10


Exhibit F

Form of Assignment and Assumption

Dated             ,     

Reference is made to the Second Lien Credit Agreement dated as of January 31, 2014 (as extended, renewed, supplemented, modified, amended or restated from time to time, the “ Second Lien Credit Agreement ”) among J.A. Cosmetics Holdings, Inc., a Delaware corporation (“ Holdings ”), as the initial borrower (the “ Initial Borrower ”; each of the Initial Borrower, and each Domestic Subsidiary of Initial Borrower who hereafter becomes a “Borrower” under the Second Lien Credit Agreement pursuant to a Joinder Agreement may be referred to individually, as a “ Borrower ” and collectively, as “ Borrowers ”), the Guarantors party thereto, certain Lenders which are signatories thereto, and U.S. Bank National Association, as Collateral Agent. Terms defined in the Second Lien Credit Agreement are used herein with the same meaning, except terms otherwise defined herein.

                                          (the “ Assignor ”) and                      (the “ Assignee ”) agree as follows:

1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, the amount and specified percentage interest shown on Annex I hereto of the Assignor’s rights and obligations under the Second Lien Credit Agreement as of the Effective Date (as defined herein), including, without limitation, the Assignor’s Commitments as in effect on the Effective Date and the Loans, if any, owing to the Assignor on the Effective Date.

2. The Assignor (i) represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any adverse claim, lien, or encumbrance of any kind; (ii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Second Lien Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Second Lien Credit Agreement or any other instrument or document furnished pursuant thereto; and (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any Subsidiary or the performance or observance by the Borrower or any Subsidiary of any of their respective obligations under the Second Lien Credit Agreement or any other instrument or document furnished pursuant thereto.

3. The Assignee (i) confirms that it has received a copy of the Second Lien Credit Agreement, together with copies of the most recent financial statements delivered to the Lenders pursuant to Section 6.01(a) and (b) thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption; (ii) agrees that it will, independently and without reliance upon the Collateral Agent, the Assignor or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Second Lien Credit Agreement; (iii) appoints and authorizes the


Collateral Agent to take such action as Collateral Agent on its behalf and to exercise such powers under the Second Lien Credit Agreement and the other Loan Documents as are delegated to the Collateral Agent by the terms thereof, together with such powers as are reasonably incidental thereto; (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Second Lien Credit Agreement are required to be performed by it as a Lender; and (v) specifies as its lending office (and address for notices) the offices set forth on its Administrative Questionnaire.

[4. The Assignee further: 4

(a) represents and warrants to Assignor and Collateral Agent that (i) it is Sponsor or any Non-Debt Fund Affiliate and (ii) after giving effect to such assignment, (A) the aggregate principal amount of the Term Loan held by Sponsor and Non-Debt Fund Affiliates does not exceed twenty-five percent (25%) of the aggregate principal amount of all Term Loans then outstanding under the Second Lien Credit Agreement and (B) the aggregate number of Non-Debt Fund Affiliates together with the Sponsor holding the Term Loans does not constitute fifty percent (50%) or more of the aggregate number of all Lenders holding a portion of the Term Loans at the time of such assignment;

(b) acknowledges and agrees that it shall have no right to (i) attend (including by telephone or electronic means) any meeting or discussions (or portion thereof) among the Collateral Agent or any Lender to which representatives of the Sponsor, the Borrowers or the Guarantors are not invited or (B) receive any information or material prepared by the Collateral Agent or any Lender or any communication by or among the Collateral Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Sponsor, the Borrowers or the Guarantors or their representatives; and

(c) acknowledges and agrees that for purposes of the Second Lien Credit Agreement and for purposes of determining whether the Required Lenders have (i) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Borrower or any Guarantor therefrom, (ii) otherwise acted on any matter related to any Loan Document or (iii) directed or required the Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, the Sponsor or any Non-Debt Fund Affiliate shall be deemed, to the extent not adversely affecting the Sponsor or any Non-Debt Fund Affiliate as compared to other Lenders, to have voted its interest as a Lender without discretion in the same proportion as the allocation of voting with respect to such matter by Lenders who are not the Sponsor or any Non-Debt Fund Affiliate; provided, that no (i) amendment, modification, waiver, consent or other action with respect to any Loan Document shall deprive the Sponsor or any Non-Debt Fund Affiliate of its pro rata share of any payments to which the Sponsor or

 

 

4 Include only if Assignment is to Sponsor or any Non-Debt Fund Affiliate pursuant to Section 10.06(g) of the Second Lien Credit Agreement.


any Non-Debt Fund Affiliate, as applicable, as a Lender is entitled under the Loan Documents or any vote which affects the Sponsor or any Non-Debt Fund Affiliate disproportionately without the Sponsor or any Non-Debt Fund Affiliate, as applicable, providing its consent; and in furtherance of the foregoing, (x) the Sponsor or any Non-Debt Fund Affiliate agrees to execute and deliver to the Collateral Agent any instrument reasonably requested by the Collateral Agent to evidence the voting of its interest as a Lender in accordance with the provisions of Section 10.06(g) of the Second Lien Credit Agreement; provided that if the Sponsor or any Non-Debt Fund Affiliate fails to promptly execute such instrument such failure shall in no way prejudice any of the Collateral Agent’s rights under Section 10.06(g) of the Second Lien Credit Agreement and (y) the Collateral Agent is hereby appointed (such appointment being coupled with an interest) by the Sponsor or any Non-Debt Fund Affiliate as each such Person’s attorney in fact, with full authority in the place and stead of such Person and in the name of such Person, from time to time in the Collateral Agent’s reasonable discretion to take any action and to execute and instrument that the Collateral Agent may deem reasonably necessary to carry out the provisions of Section 10.06(g) of the Second Lien Credit Agreement; and (ii) Sponsor and any Non-Debt Fund Affiliate, as applicable, in its capacity as a Lender shall retain the right to consent to an extension of the maturity date of their Term Loans, reduction in the principal amount of their Term Loans, reduction in the interest rate thereof or postponement of the scheduled due date therefor.]

5. As consideration for the assignment and sale contemplated in Annex I hereof, the Assignee shall pay to the Assignor on the Effective Date in Federal funds the amount agreed upon between them. It is understood that commitment fees accrued to the Effective Date with respect to the interest assigned hereby are for the account of the Assignor and such fees accruing from and including the Effective Date are for the account of the Assignee. Each of the Assignor and the Assignee hereby agrees that if it receives any amount under the Second Lien Credit Agreement which is for the account of the other party hereto, it shall receive the same for the account of such other party to the extent of such other party’s interest therein and shall promptly pay the same to such other party.

6. The effective date for this Assignment and Assumption shall be                      (the “ Effective Date ”). Following the execution of this Assignment and Assumption, it will be delivered to the Collateral Agent for acceptance and recording by the Collateral Agent and, if required, the Borrower.

7. Upon such acceptance and recording, as of the Effective Date, (i) the Assignee shall be a party to the Second Lien Credit Agreement and, to the extent provided in this Assignment and Assumption, have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to the extent provided in this Assignment and Assumption, relinquish its rights and be released from its obligations under the Second Lien Credit Agreement.

8. Upon such acceptance and recording, from and after the Effective Date, the Collateral Agent shall make all payments under the Second Lien Credit Agreement in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and commitment fees with respect thereto) to the Assignee. The Assignor and Assignee shall make all appropriate adjustments in payments under the Second Lien Credit Agreement for periods prior to the Effective Date directly between themselves.


9. This Assignment and Assumption shall be governed by, and construed in accordance with, the laws of the State of New York.

[Remainder of Page Intentionally Left Blank; Signature Pages Follow]


[Assignor Lender]

By

 
 

 

 

Name

 
   

 

 

Title

 
   

 

[Assignee Lender]

By

 
 

 

 

Name

 
   

 

 

Title

 
   

 

 

[Accepted and consented this     day of             
J.A. COSMETICS US, INC., a Delaware corporation, as Borrower Agent
By  

 

  Name  

 

  Title ]   5
Accepted and consented to by the Collateral Agent 6 this      day of             
U.S. BANK NATIONAL ASSOCIATION,
as Collateral Agent
By  

 

  Name  

 

  Title  

]

 

5   Include only if required pursuant to Section 10.06 of the Second Lien Credit Agreement.
6   Include only if required pursuant to Section 10.06 of the Second Lien Credit Agreement.


Annex I

to Assignment and Assumption

The assignee hereby purchases and assumes from the assignor the following interest in and to all of the Assignor’s rights and obligations under the Second Lien Credit Agreement as of the effective date.

 

Facility Assigned   

Aggregate

Commitment/Loans

For All Lenders

    

Amount of

Commitment/Loans

Assigned

    

Percentage Assigned
of

Commitment/Loans

 

Term Loan

   $                    $                                  


Exhibit H

Form of Joinder to Second Lien Credit Agreement

            ,    

This Joinder to Second Lien Credit Agreement (this “Agreement”) dated as of this [    ] day of [                    ], [                    ] is made by [                    , a                      and                     , a                      (each a “New Borrower” and collectively, the “New Borrowers”)] and [                    , a                      and                      a                      (each a “New Loan Party” and collectively, the “New Loan Parties”)] to and in favor of U.S. Bank National Association, in its capacity as Collateral Agent for the Lenders under the Second Lien Credit Agreement referred to below.

Reference hereby is made to that certain Second Lien Credit Agreement, dated as of January 31, 2014 (as extended, renewed, modified, supplemented, amended or restated from time to time, the “ Second Lien Credit Agreement ”) by and among J.A. Cosmetics Holdings, Inc., a Delaware corporation (” Holdings ”), as the initial borrower (the “ Initial Borrower ”; the Initial Borrower, together with each other Person who joins in the execution of the Second Lien Credit Agreement and agrees to be bound as a Borrower thereby pursuant to a Joinder Agreement, are referred to individually as a “ Borrower ” and collectively as the “ Borrowers ”), the Guarantors party thereto, certain Lenders which are signatories thereto, and U.S. Bank National Association, as Collateral Agent for the Lenders. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Second Lien Credit Agreement.

[Each New Borrower hereby (i) acknowledges, agrees and elects to be a “ Borrower ” and a “ Loan Party ” for all purposes of and under the Second Lien Credit Agreement, each of the Notes referenced therein and each of the other Loan Documents and delivered in connection therewith, effective from the date hereof and (ii) appoints Initial Borrower, and from and after the consummation of the Closing Date Acquisition, J.A. Cosmetics US, Inc., a Delaware corporation (“ J.A. Cosmetics ”), to act on its behalf as the “Borrower Agent”, and Initial Borrower, and from and after the consummation of the Closing Date Acquisition, J.A. Cosmetics, acknowledges and agrees that it shall act as “Borrower Agent” for each New Borrower, under and in accordance with the terms and conditions of the Second Lien Credit Agreement. All references in the Second Lien Credit Agreement and the other Loan Documents to the terms “Borrower” or “Borrowers” and “Loan Party” or “Loan Parties” shall be deemed to include each New Borrower. By its execution of this Agreement, each New Borrower hereby confirms that the representations and warranties contained in Article V of the Second Lien Credit Agreement are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) as to such New Borrower as of the effective date of this Agreement, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such


qualification) on and as of such earlier date). Without limiting the generality of the foregoing, each New Borrower hereby agrees to perform all the obligations of a Borrower and a Loan Party under, and to be bound in all respects by the terms of, the Second Lien Credit Agreement, each of the Notes and the Fee Letter to the same extent and with the same force and effect as if it were a signatory party thereto as a Borrower and a Loan Party and hereby acknowledges and agrees that it is jointly and severally liable for all of the now existing and hereafter arising Obligations.]

[Each New Loan Party hereby (i) acknowledges, agrees and elects to be a “ Loan Party ” and a “ Guarantor ” for all purposes of and under the Second Lien Credit Agreement and each of the other Loan Documents and delivered in connection therewith, effective from the date hereof. All references in the Second Lien Credit Agreement and the other Loan Documents to the terms “Loan Party”, “Loan Parties”, “Guarantor” or “Guarantors” shall be deemed to include each New Loan Party. By its execution of this Agreement, each New Loan Party hereby confirms that the representations and warranties contained in Article V of the Second Lien Credit Agreement are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) as to such New Loan Party as of the effective date of this Agreement, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such earlier date). Without limiting the generality of the foregoing, each New Loan Party hereby agrees to perform all the obligations of a Loan Party and a Guarantor under, and to be bound in all respects by the terms of, the Second Lien Credit Agreement to the same extent and with the same force and effect as if it were a signatory party thereto as a Loan Party and a Guarantor.]

[The Collateral Agent, for and on behalf of the Lenders, in accordance with the Second Lien Credit Agreement, hereby irrevocably releases and forever discharges Holdings of all of its Obligations solely in its capacity as a Borrower (but not, for the avoidance of doubt, any Obligations of Holdings in its capacity as a Guarantor and Grantor, which Obligations (and the Liens granted to secure such Obligations) are hereby reaffirmed by Holdings) with respect to the Second Lien Credit Agreement or any of the other Loan Documents on or prior to the date hereof. The New Borrower hereby assumes (i) all such Obligations of Holdings in its capacity as a Borrower under and with respect to the Second Lien Credit Agreement and each of the other Loan Documents, it being agreed and understood that such release of Holdings and assumption by the New Borrower shall not constitute or effect a novation of such Obligations under the Second Lien Credit Agreement or any other Loan Document and (ii) all of Holding’s obligations under the Fee Letter. It is the express intention of the parties hereto to reaffirm the Indebtedness created under the Second Lien Credit Agreement which is evidenced by the Notes provided for therein and secured by the Collateral.] 1

 

1   To be used solely in the Agreement delivered on the Closing Date.


Except as specifically modified hereby, all of the terms and conditions of the Second Lien Credit Agreement and other Loan Documents shall remain unchanged and in full force and effect.

No reference to this Agreement need be made in the Second Lien Credit Agreement or in any other Loan Document or other document or instrument making reference to the same, any reference to Loan Documents in any of such to be deemed a reference to the Second Lien Credit Agreement, or other Loan Documents, as applicable, as modified hereby.

Each of the undersigned acknowledges that this Agreement shall be effective upon execution by each New Loan Party and the Collateral Agent. This Agreement shall be construed in accordance with and governed by the internal laws of the State of New York.

This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart. Delivery of an executed signature page of this Agreement by facsimile transmission or electronic transmission shall be as effective as delivery of a manually executed counterpart hereof.

[ Remainder of Page Intentionally Left Blank; Signature Page to Follow ]


Very truly yours,
[NEW BORROWER(S):
[  

 

  ]
By:  

 

 
Name:  

 

 
Title:  

 

  ]
Very truly yours,
[NEW LOAN PARTY:  
[  

 

  ]
By:  

 

 
Name:  

 

 
Title:  

 

  ]

 

Joinder to Second Lien Credit Agreement


U.S. BANK NATIONAL ASSOCIATION ,
as Collateral Agent
By:  

 

Name:  

 

Title:  

 

 

Joinder to Second Lien Credit Agreement


Acknowledged and accepted as of the
date first written above:
[J.A. COSMETICS HOLDINGS, INC.]
By:  

 

Name:  

 

Title:  

 

[J.A. COSMETICS US, INC.]
By:  

 

Name:  

 

Title:  

 

[JA COSMETICS RETAIL, INC.]
By:  

 

Name:  

 

Title:  

 

[JA 741 RETAIL CORP.]
By:  

 

Name:  

 

Title:  

 

[JA 139 FULTON STREET CORP.]
By:  

 

Name:  

 

Title:  

 

 

Joinder to Second Lien Credit Agreement

Exhibit 10.8(b)

EXECUTION VERSION

FIRST AMENDMENT

TO

SECOND LIEN CREDIT AGREEMENT

This FIRST AMENDMENT TO SECOND LIEN CREDIT AGREEMENT (this “ First Amendment ”), dated as of August 14, 2014, is by and among J.A. Cosmetics Holdings Inc., a Delaware corporation (“ Holdings ”), each Domestic Subsidiary of Holdings party to the Credit Agreement described below (the “ Borrowers ”), PennantPark Investment Corporation, PennantPark Floating Rate Capital Ltd., PennantPark Credit Opportunities Fund, LP (the foregoing PennantPark entities, collectively, the “ Required Lenders ”), each Loan Party to the Credit Agreement described below (the “ Guarantors ”) and U.S. Bank National Association, as Collateral Agent under the Credit Agreement described below (in such capacity, the “ Collateral Agent ”).

RECITALS:

WHEREAS , Holdings, the Borrowers, each Lender from time to time party thereto, the Guarantors and the Collateral Agent are parties to the Second Lien Credit Agreement, dated as of January 31, 2014 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “ Credit Agreement ”);

WHEREAS , as contemplated by Section 10.01 of the Credit Agreement, the Borrowers have requested that the Required Lenders amend certain terms of the Credit Agreement as hereinafter provided and the Required Lenders party hereto have agreed to amend the Credit Agreement subject to the satisfaction of the conditions precedent to effectiveness set forth in Section 3 hereof.

NOW, THEREFORE , in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

Section 1. Defined Terms . Except as otherwise defined in this First Amendment, capitalized terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

Section 2. Amendment to the Credit Agreement . Subject to the satisfaction of the conditions set forth in Section 3 hereof, effective as of the First Amendment Effective Date (as defined in Section 3 hereof), the Credit Agreement is hereby amended as follows:

(a) The definition of “Interest Period” in Section 1.01 of the Credit Agreement is amended and restated in its entirety to read as follows:

Interest Period ” means, as to each Eurodollar Rate Loan, the period commencing on the first day of January, April, July and October of each calendar year prior to the Maturity Date and ending, in each case, on the last day of each Fiscal Quarter; provided that:

(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day; and

(b) no Interest Period shall extend beyond the Maturity Date for the Term Loan to which such Interest Period applies.


Section 3. Conditions Precedent . The effectiveness of the provisions set forth in Section 2 hereof are subject to the satisfaction or waiver by the applicable party of the following conditions precedent (the date of such satisfaction, the “ First Amendment Effective Date ”):

(a) Holdings, the Borrowers, the Required Lenders, the Guarantors and the Collateral Agent shall have executed and delivered counterparts of this First Amendment to the Collateral Agent;

(b) Each of the representations and warranties made by any Loan Party set forth in Article V of the Credit Agreement or in any other Loan Document shall be true and correct in all material respects ( provided that, any representation and warranty that is qualified by “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects (after giving effect to any such qualification therein)) on and as of the First Amendment Effective Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (or if any such representation and warranty is qualified by “materiality,” “Material Adverse Effect” or similar language, shall be true and correct in all respects (after giving effect to any such qualification therein)) on and as of such earlier date);

(c) The Required Lenders shall have received a certificate from a Responsible Officer of each Loan Party, signed and dated as of the First Amendment Effective Date, confirming compliance with Section 3(b) hereof;

(d) Each of the Loan Parties shall have obtained all material consents and approvals necessary or advisable in connection with this First Amendment; and

(e) The Borrower shall have paid all fees and expenses that are due and payable in connection with this First Amendment on or before the First Amendment Effective Date.

Section 4. Costs and Expenses .

(a) Without limiting the obligations of the Loan Parties under the Credit Agreement, the Borrowers agree to pay or reimburse all of the Collateral Agent’s and Required Lenders’ reasonable and documented out-of-pocket costs and expenses incurred in connection with the preparation, negotiation and execution of this First Amendment and the other instruments and documents to be delivered hereunder in accordance with the terms of Section 10.04 of the Credit Agreement, including all reasonable and documented fees, disbursements and other charges of Latham & Watkins LLP, counsel for the Required Lenders and Shipman & Goodwin LLP, counsel for the Collateral Agent.

(b) Each Lender party hereto hereby waives any breakage loss or expenses due and payable to it by the Loan Parties pursuant to Section 3.05 of the Credit Agreement with respect to the amendment of the Credit Agreement to occur on the First Amendment Effective Date.

Section 5 . Consent and Affirmation of the Loan Parties .

(a) Each Loan Party hereby consents to the amendments to the Credit Agreement effected hereby. Each Loan Party hereby confirms and agrees that, notwithstanding the effectiveness of this First Amendment, each Loan Document to which such Loan Party is a party is, and the obligations of such Loan Party contained in the Credit Agreement, this First Amendment or in any other Loan Document to which it is a party are, and shall continue to be, in full force and effect and are hereby ratified and confirmed in all respects, in each case as amended by this First Amendment. For greater certainty and without limiting the foregoing, each Loan Party hereby confirms that the existing security interests granted by such Loan Party in favor of the Collateral Agent, for the benefit of the Lenders,

 

2


pursuant to the Loan Documents in the Collateral described therein shall continue to secure the obligations of the Loan Parties under the Credit Agreement, as amended hereby, and the other Loan Documents as and to the extent provided in the Loan Documents. Each Guarantor reaffirms and agrees that its guarantee of the obligations of the Loan Parties under the Credit Agreement, as amended hereby, and the Loan Documents is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects.

Section 6 . Consent of the Required Lenders .

(a) Each Required Lender hereby irrevocably appoints, designates and authorizes the Collateral Agent to enter into (i) this First Amendment and (ii) the Consent Under, Reaffirmation of and First Amendment to Subordination and Intercreditor Agreement, dated as of August 14, 2014, by and among Holdings, the Borrowers, the Required Lenders, the Collateral Agent and the Senior Lender Agent.

Section 7. Reference to and Effect on the Credit Agreement .

(a) On and after the effectiveness of this First Amendment, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Amended Credit Agreement.

(b) The Credit Agreement as specifically amended by this First Amendment is and shall continue to be in full force and effect and is hereby in all respects ratified and confirmed. This First Amendment shall be a “Loan Document” for purposes of the definition thereof in the Credit Agreement.

(c) The execution, delivery and effectiveness of this First Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Collateral Agent under any of the Loan Documents.

Section 8. Execution in Counterparts . This First Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this First Amendment by telecopy or other electronic means (including .pdf or .tif files) shall be effective as delivery of a manually executed counterpart of this First Amendment.

Section 9. Governing Law . THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

Section 10. Headings . The headings of the sections and subsections hereof are provided for convenience only and shall not in any way affect the meaning or construction of any provision of this First Amendment.

Section 11. Severability . If any provision of this First Amendment is held to be invalid, illegal or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this First Amendment shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision of a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

3


[Signature Pages Follow]

 

4


IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.

 

J.A. COSMETICS HOLDINGS, INC.,
a Delaware corporation
By:  

/s/ Tarang Amin

Name:   Tarang Amin
Title:   Chief Executive Officer and President

J .A. COSMETICS US, INC.,

a Delaware corporation

By:  

/s/ Tarang Amin

Name:   Tarang Amin
Title:   Chief Executive Officer and President

JA COSMETICS RETAIL, INC.,

a New York corporation

By:  

/s/ Tarang Amin

Name:   Tarang Amin
Title:   Chief Executive Officer and President

JA 741 RETAIL CORP.,

a New York corporation

By:  

/s/ Tarang Amin

Name:   Tarang Amin
Title:   Chief Executive Officer and President

JA 139 FULTON STREET CORP.,

a New York corporation

By:  

/s/ Tarang Amin

Name:   Tarang Amin
Title:   Chief Executive Officer and President

J.A. RF, LLC,

a Delaware limited liability company

By:  

/s/ Tarang Amin

Name:   Tarang Amin
Title:   Chief Executive Officer and President

 

[First Amendment to Second Lien Credit Agreement]


J.A. CHERRY HILL, LLC,
a Delaware limited liability company
By:  

/s/ Tarang Amin

Name:   Tarang Amin
Title:   Chief Executive Officer and President

 

[First Amendment to Second Lien Credit Agreement]


U.S. BANK NATIONAL ASSOCIATION,
as Collateral Agent
By:  

/s/ Michael M. Hopkins

Name:   Michael M. Hopkins
Title:   Vice President

 

[First Amendment to Second Lien Credit Agreement]


By signing below, the undersigned Required Lenders consent to this First Amendment

PENNANTPARK INVESTMENT CORPORATION,

as a Lender

By:  

/s/ Arthur H. Penn

Name:   Arthur H. Penn
Title:   Chief Executive Officer

PENNANTPARK FLOATING RATE CAPITAL LTD.,

as a Lender

By:  

/s/ Arthur H. Penn

Name:   Arthur H. Penn
Title:   Chief Executive Officer

PENNANTPARK CREDIT OPPORTUNITIES FUND, LP,

as a Lender

By:  

/s/ Arthur H. Penn

Name:   Arthur H. Penn
Title:   Managing Member of the PennantPark Capital, LLC, the general partner of the Fund

 

[First Amendment to Second Lien Credit Agreement]

Exhibit 10.8(c)

SECOND AMENDMENT TO SECOND LIEN CREDIT AGREEMENT

THIS SECOND AMENDMENT TO SECOND LIEN CREDIT AGREEMENT (this “ Amendment ”) is entered into as of June 7, 2016 (the “ Second Amendment Effective Date ”) by and among e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.), a Delaware corporation (“ e.l.f. Cosmetics ”), JA 139 Fulton Street Corp., a New York corporation (“ JA 139 Fulton ”), JA 741 Retail Corp., a New York corporation (“ JA 741 Retail ”), JA Cosmetics Retail, Inc., a New York corporation (“ JA Cosmetics Retail ”), J.A. RF, LLC, a Delaware limited liability company (“ JA RF ”), and J.A. Cherry Hill, LLC, a Delaware limited liability company (“ JA Cherry Hill ”; collectively with e.l.f. Cosmetics, JA 139 Fulton, JA 741 Retail, JA Cosmetics Retail and JA RF, the “ Borrowers ”), e.l.f. Beauty, Inc. (formerly known as J.A. Cosmetics Holdings, Inc.), a Delaware corporation (“ e.l.f. Beauty ”), the other Persons party hereto that are designated as a “Loan Party” on the signature pages hereof, PennantPark Investment Corporation, PennantPark Floating Rate Capital Ltd., PennantPark Credit Opportunities Fund II, LP, and U.S. Bank National Association, as Collateral Agent ( “ Collateral Agent ”).

W I T N E S S E T H:

WHEREAS, Borrowers, the other Loan Parties, the Lenders and the Collateral Agent are parties to that certain Second Lien Credit Agreement, dated as of January 31, 2014 (as the same may be amended, restated, supplemented or otherwise modified from time to time, including, for the avoidance of doubt, by that certain First Amendment to Second Lien Credit Agreement, dated as August 26, 2014, by and among the Loan Parties party thereto, the Required Lenders and the Collateral Agent, the “ Credit Agreement ”); and

WHEREAS, as contemplated by Section 10.01 of the Credit Agreement, the Borrowers have requested that the Required Lenders amend certain terms of the Credit Agreement as hereinafter provided and the Lenders party hereto have agreed to amend the Credit Agreement, subject to the satisfaction of the conditions and terms set forth herein;

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties agree as follows:

1. Defined Terms . Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Credit Agreement.

2. Amendments to Credit Agreement . Upon satisfaction of the conditions set forth in Section 3 hereof, the Credit Agreement is hereby amended as follows:

(a) Section 1.01 (Defined Terms) of the Credit Agreement is hereby amended by adding the following defined terms and the definitions therefor in appropriate alphabetical order:

“First Amendment Dividend” means the declaration and making of a cash dividend payment on account of the Equity Interests of Holdings to its


shareholders within ten (10) Business Days following the Second Amendment Effective Date in a net amount (after giving effect to any repayment to Holdings of any outstanding loans owing from direct or indirect holders of Equity Interests of Holdings) of approximately, and not to exceed, $68,000,000.

“First Amendment to Senior Loan Agreement” means that certain First Amendment to Senior Loan Agreement, dated as of the Second Amendment Effective Date, by and among the Borrowers, the Guarantors party thereto, Bank of Montreal as Senior Lender Agent and the Lenders party thereto.

“Second Amendment Effective Date” means June 7, 2016.

“Securitization” means an existing or proposed public or private offering of securities by, or other financing facility involving, a Lender or any of its Affiliates or their respective successors and assigns, which represent an interest in, or which are collateralized, in whole or in part, by the Loans or the Commitments.

(b) Section 5.15(b) of the Credit Agreement is hereby amended by deleting it in its entirety and substituting the following language therefor:

“Each Loan Party and each Subsidiary is in compliance in all material respects with, and the advances of the Loans and use of the proceeds thereof will not result in a violation of, (a) the Trading With the Enemy Act (50 U.S.C. § 1 et seq., as amended) (the “ Trading With the Enemy Act ”) or any of the foreign assets control regulations administered by the United States Treasury Department, Office of Foreign Assets Control (“ OFAC ”) (31 C.F.R., Subtitle B, Chapter V, as amended) (the “ Foreign Assets Control Regulations ”) and any other enabling legislation or executive order relating thereto (which, for the avoidance of doubt, shall include, but shall not be limited to, Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (Sept. 25, 2001)) (the “ Executive Order ”)) by any party hereto and/or (b) the Uniting and Strengthening America by Providing Appropriate Tools Required To Intercept And Obstruct Terrorism (USA PATRIOT) Act of 2001 (“ USA PATRIOT Act ”). None of the Loan Parties or any of their Subsidiaries is a “blocked person” as described in the Executive Order, the Trading With the Enemy Act or the Foreign Assets Control Regulations. None of the Loan Parties will use any part of the proceeds of the Loans for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977.”

 

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(c) Section 6.01(a) of the Credit Agreement is hereby amended by deleting it in its entirety and substituting the following language therefor:

“(a) (x) if Holdings is required to file a Form 10-K under the Exchange Act, a copy of the Form 10-K of Holdings within 2 Business Days after the date on which Holdings files or is required to file its Form 10-K under the Exchange Act (after giving effect to any extension pursuant to Rule 12b-25 under the Exchange Act (or any successor rule)) and, unless the audit report and opinion of an Auditor (as defined below) in such Form 10-K satisfies the requirements of clauses (A) and (B) of Section 6.01(a)(y) below, a report and opinion of an Auditor which satisfies such requirements, or (y) if Holdings is not required to file a Form 10-K under the Exchange Act, within 120 days after the end of each Fiscal Year (in the case of the Fiscal Year ending December 31, 2013, 150 days), a consolidated balance sheet of Holdings and its Subsidiaries (in the case of the Fiscal Year ending December 31, 2013, of J.A. Cosmetics and its Subsidiaries) as of the end of such Fiscal Year, and the related consolidated statements of income or operations, and cash flows for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an accounting firm of nationally recognized standing or otherwise reasonably acceptable to the Required Lenders, it being agreed and understood that as of the Closing Date, McGladrey LLP is acceptable to the Required Lenders (the “ Auditor ”), which report and opinion shall (A) not be subject to any “going concern” or other qualification or exception or any qualification or exception as to the scope of such audit (except for qualifications relating to changes in accounting principles practice reflecting changes in GAAP and required or approved by such Auditor or relating to the financial statements for the fiscal year ending immediately prior to the final stated maturity of the Loans or Senior Indebtedness, applicable, solely because of the impending maturity of the Loans or Senior Indebtedness, as applicable) and (B) shall state that such financial statements fairly present in all material respects the financial condition of Holdings and its Subsidiaries as of the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP;”

(d) Section 6.01(b) of the Credit Agreement is hereby amended by deleting it in its entirety and substituting the following language therefor:

“(b) (x) if Holdings is required to file a Form 10-Q under the Exchange Act, a copy of the Form 10-Q of Holdings, within 2 Business Days after the date on which Holdings files or is required to file its Form 10-Q under the Exchange Act (after giving effect to any extension pursuant to Rule 12b-25 under the Exchange Act (or any successor rule)) and, unless otherwise included in such Form 10-Q, comparative form figures for the preceding Fiscal Year, or (y) if Holdings is not required to file a Form 10-Q under the Exchange Act, within 45 days after the end of each Fiscal Quarter of each Fiscal Year, commencing with the Fiscal Quarter ending March 31, 2014 (in the case of each of the Fiscal Quarters ending March 31, 2014 and June 30, 2014, 60 days), (i) unaudited consolidated balance sheet of Holdings and its Subsidiaries as of the end of such Fiscal Quarter and the related consolidated statements of income or operations and cash flows for such Fiscal

 

3


Quarter and for the portion of the Fiscal Year then elapsed, setting forth in each case in comparative form figures for the preceding Fiscal Year and the financial projections for the current Fiscal Year (or, in the case of quarterly financial statements delivered with respect to the Fiscal Quarters ending March 31, 2014, June 30, 2014, September 30, 2014 and December 31, 2014, to the corresponding period set forth in the financial model delivered to the Lenders prior to the Closing Date) certified by a Responsible Officer of Borrower Agent to the effect that such statements fairly present in all material respects in accordance with GAAP the financial condition of Holdings and its Subsidiaries as of the dates indicated and the results of their operations for the periods indicated, subject to year-end adjustments and the absence of footnotes and (ii) a flash report of cash balances of Foreign Subsidiaries as of the last day of such Fiscal Quarter; and”

(e) Section 7.06(e) of the Credit Agreement is hereby amended by deleting it in its entirety and substituting the following language therefor:

“(e) (i) only if no Event of Default shall have occurred and be continuing, both immediately before or as a result of the making of such Restricted Payment, the Loan Parties may make payments of management, consulting, monitoring, transaction and advisory fees to Sponsor or its Affiliates in accordance with the Management Agreement as in effect on the date hereof and the payment of out-of-pocket costs and expenses, reimbursements and indemnification payments thereunder and (ii) only if no Specified Event of Default shall have occurred and be continuing, both immediately before or as a result of the making of such Restricted Payment, the Loan Parties may make, with notice to Lenders, (x) a payment in connection with the termination of the Management Agreement upon a Qualified IPO, which fee shall equal the aggregate amount of accrued and unpaid management fees (but not any Subsequent Fees (as defined therein) or similar fees) as of such date of termination any (y) to the extent paid solely with the proceeds of such Qualified IPO, a payment of any Subsequent Fee or similar fee due and payable in connection with such Qualified IPO in accordance with the Management Agreement as in effect on the date hereof; provided , that if at any time any such fees pursuant to clauses (i) or (ii) of this Section 7.06(e) are not permitted to be paid as a result of the occurrence and continuance of an Event of Default or a Specified Event of Default, as applicable,, then (x) such amounts shall continue to accrue (plus accrued interest, if any, with respect thereto), and (y) any such amounts that have accrued but which were not permitted to be paid may be paid so long as such Event of Default or Specified Event of Default, as applicable, has been waived or cured and no other Event of Default or Specified Event of Default, as applicable, has occurred and is continuing or would immediately result therefrom (it being agreed and understood that out-of-pocket costs and expenses, reimbursements, indemnities and other similar payments may be paid during the continuance of any Event of Default or any Specified Event of Default, as applicable);”

 

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(f) Section 7.06(m) of the Credit Agreement is hereby amended by deleting it in its entirety and substituting the following language therefor:

“(m) the First Amendment Dividend;”

(g) Section 7.06(n) is hereby amended by deleting the “.” at the end thereof and substituting “; and” therefor.

(h) Section 7.06 of the Credit Agreement is hereby amended by adding the following clause (o) at the end thereof:

“(o) from and after the consummation of a Qualified IPO, the payment of any dividend or distribution or the consummation of any irrevocable redemption within sixty (60) days after the date of declaration of the dividend or distribution or giving of the redemption notice, as the case may be, if at the date of such declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and was permitted to be paid.”

(i) Section 7.12(a) of the Credit Agreement is hereby amended by deleting the table set forth therein in its entirety and substituting the table set forth below therefor:

 

Measurement Period Ending

   Maximum Consolidated
Total Net Leverage
Ratio
 

June 30, 2014

     8.05 to 1.00   

September 30, 2014

     8.05 to 1.00   

December 31, 2014

     8.05 to 1.00   

March 31, 2015

     7.75 to 1.00   

June 30, 2015

     7.45 to 1.00   

September 30, 2015

     7.20 to 1.00   

December 31, 2015

     6.90 to 1.00   

March 31, 2016

     6.90 to 1.00   

June 30, 2016

     7.45 to 1.00   

September 30, 2016

     7.45 to 1.00   

December 31, 2016

     7.20 to 1.00   

March 31, 2017

     6.90 to 1.00   

June 30, 2017

     6.30 to 1.00   

September 30, 2017

     6.30 to 1.00   

December 31, 2017

     6.05 to 1.00   

March 31, 2018

     6.05 to 1.00   

June 30, 2018

     5.75 to 1.00   

September 30, 2018

     5.75 to 1.00   

December 31, 2018 and each Fiscal Quarter thereafter

     5.45 to 1.00   

 

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(j) Section 7.12(b) of the Credit Agreement is hereby amended by deleting the table set forth therein in its entirety and substituting the table set forth below therefor:

 

Measurement Period Ending

   Minimum Consolidated
Interest Coverage Ratio
 

June 30, 2014

     1.55 to 1.00   

September 30, 2014

     1.55 to 1.00   

December 31, 2014

     1.60 to 1.00   

March 31, 2015

     1.60 to 1.00   

June 30, 2015

     1.70 to 1.00   

September 30, 2015

     1.70 to 1.00   

December 31, 2015

     1.85 to 1.00   

March 31, 2016

     1.85 to 1.00   

June 30, 2016

     1.55 to 1.00   

September 30, 2016

     1.55 to 1.00   

December 31, 2016

     1.60 to 1.00   

March 31, 2017

     1.60 to 1.00   

June 30, 2017

     1.70 to 1.00   

September 30, 2017

     1.70 to 1.00   

December 31, 2017

     1.85 to 1.00   

March 31, 2018

     1.85 to 1.00   

June 30, 2018

     1.90 to 1.00   

September 30, 2018

     1.90 to 1.00   

December 31, 2018 and each Fiscal Quarter thereafter

     2.05 to 1.00   

(a) Section 10.07 of the Credit Agreement is hereby amended by (i) replacing the “ or” immediately preceding clause (h) thereof with “, ” and (ii) inserting the following language as new clauses (i) and (j) at the end thereof, respectively:

“, (i) to rating agencies if requested or required by such agencies in connection with a rating or credit estimate relating to the Loans or Commitments hereunder or (j) to a Person that is (i) an investor or prospective investor in a Securitization that agrees that its access to information regarding the Borrower and the Loans and Commitments is solely for purposes of evaluating an investment in such Securitization and who agrees to treat such information as confidential or (ii) a trustee, collateral agent, collateral manager, servicer, noteholder, equityholder or secured party in a Securitization in connection with the administration, servicing and evaluation of, and reporting on, the assets serving as collateral for such Securitization.”

 

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(b) Exhibit D to the Credit Agreement is hereby deleted in its entirety and Exhibit D attached hereto shall be substituted in lieu thereof.

(c) Exhibit E to the Credit Agreement is hereby deleted in its entirety and Exhibit E attached hereto shall be substituted in lieu thereof.

3. Conditions . The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent:

a. the execution and delivery of this Amendment by the Required Lenders, the Collateral Agent, the Borrowers and each Loan Party;

b. delivery to the Required Lenders of (i) an amendment to the Senior Loan Agreement executed by the Loan Parties, the Senior Loan Agent and the requisite Lenders in form and substance reasonably acceptable to Required Lenders and (ii) an amendment to the Intercreditor Agreement executed by the Loan Parties, the Senior Loan Agent and the requisite Lenders in form and substance reasonably acceptable to the Required Lenders;

c. no Default or Event of Default exists or shall arise as a direct result of the effectiveness of this Amendment; and

d. all accrued costs, fees and expenses (including all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to Collateral Agent (Shipman & Goodwin LLP) and counsel to the Required Lenders(Latham & Watkins LLP) due and payable to Collateral Agent and the Required Lenders pursuant to this Amendment and the Credit Agreement, in each case, on or before the Second Amendment Effective Date shall have been paid, to the extent set forth hereunder or otherwise invoiced with reasonable detail at least one (1) Business Day prior to the Second Amendment Effective Date.

4. Representations and Warranties . Each Loan Party hereby represents and warrants to Collateral Agent and the Required Lenders as follows:

a. the representations and warranties made by such Loan Party contained in the Loan Documents are true and correct in all material respects (or in all respects for such representations and warranties that are by their terms already qualified as to materiality), except to the extent such representation or warranty expressly relates to an earlier date, in which case, such representations and warranties were true and correct in all material respects (or in all respects for such representations and warranties that are by their terms already qualified as to materiality) as of such earlier date;

b. such Loan Party is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization;

c. such Loan Party has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to execute, deliver and perform its obligations under this Amendment and the Credit Agreement, as amended hereby;

 

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d. the execution, delivery and performance by such Loan Party of this Amendment and the Credit Agreement, as amended hereby, have, in each case, been duly authorized by all necessary organizational action and (A) do not and will not (i) contravene the terms of its Organization Documents, (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under (other than as permitted by Section 7.02) (x) any Contractual Obligation to which such Person is a party or (y) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject, (iii) violate any Law material to any Loan Party or Subsidiary in any material respect, except with respect to any conflict, breach, or contravention referred to in clause (A)(ii), to the extent that such conflict, breach or contravention would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or (B) do not or will not require any approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person, except for (i) filings necessary to perfect Liens on the Collateral granted by the Loan Parties in favor of the Collateral Agent for the benefit of the Lender Parties, (ii) the approvals, consents, exemptions, authorizations, actions, notices, and filings which have been duly obtained, taken, given or made and are in full force and effect or (iii) if the failure to obtain the same, take such action or give such notice could reasonably be expected to result in a Material Adverse Effect;

e. this Amendment and the Credit Agreement, as amended hereby, constitutes the legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to or affecting the rights and remedies of creditors or by general equitable principles; and

f. no Default or Event of Default exists or shall arise as a direct result of the effectiveness of this Amendment.

5. No Modification . Except as expressly set forth herein, nothing contained herein shall be deemed to constitute a waiver of compliance with any term or condition contained in the Credit Agreement or any of the other Loan Documents or constitute a course of conduct or dealing among the parties. Except as expressly stated herein, the Collateral Agent and Required Lenders reserve all rights, privileges and remedies under the Loan Documents. Except as amended or consented to hereby, the Credit Agreement and other Loan Documents remain unmodified and in full force and effect. All references in the Loan Documents to the Credit Agreement shall be deemed to be references to the Credit Agreement as amended and waived hereby.

6. Consent of the Required Lenders . Each Required Lender hereby irrevocably appoints, designates and authorizes the Collateral Agent to enter into (i) this Amendment and (ii) the Consent Under, Reaffirmation of and Second Amendment to Subordination and Intercreditor Agreement, dated as of the date hereof, by and among Holdings, the Borrowers, the Required Lenders, the Collateral Agent and the Senior Lender Agent.

7. Counterparts . This Amendment may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be

 

8


deemed to be an original and all of which taken together shall constitute a single contract. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart. Delivery of an executed counterpart of a signature page of this Amendment by telecopy or other electronic means (including .pdf or .tiff files) shall be effective as delivery of a manually executed counterpart of this Amendment.

8. Successors and Assigns . The provisions of this Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided that none of the Loan Parties may assign or transfer any of its rights or obligations under this Amendment except as permitted by the Credit Agreement.

9. Governing Law and Jurisdiction .

(a) Governing Law . THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

(b) SUBMISSION TO JURISDICTION . EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT, THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AMENDMENT, THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT COLLATERAL AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AMENDMENT, THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST BORROWERS OR THEIR PROPERTIES IN THE COURTS OF ANY JURISDICTION.

(c) SERVICE OF PROCESS . EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02 OF THE CREDIT AGREEMENT. NOTHING IN THIS AMENDMENT, THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

 

9


(d) WAIVER OF VENUE . EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT, THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

10. Severability . The illegality or unenforceability of any provision of this Amendment or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Amendment or any instrument or agreement required hereunder. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

11. Reaffirmation . Each of the Loan Parties as debtor, grantor, pledgor, guarantor, assignor, or in other any other similar capacity in which such Loan Party grants liens or security interests in its property or otherwise acts as accommodation party or guarantor, as the case may be, hereby (i) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each of the Loan Documents to which it is a party (after giving effect hereto) and (ii) to the extent such Loan Party granted liens on or security interests in any of its property pursuant to any such Loan Document as security for or otherwise guaranteed the Borrower’s Obligations under or with respect to the Loan Documents, ratifies and reaffirms such guarantee and grant of security interests and liens and confirms and agrees that such security interests and liens hereafter secure all of the Obligations as amended hereby. Each of the Loan Parties hereby consents to this Amendment and acknowledges that each of the Loan Documents remains in full force and effect and is hereby ratified and reaffirmed. The execution of this Amendment shall not operate as a waiver of any right, power or remedy of the Collateral Agent or Lenders, constitute a waiver of any provision of any of the Loan Documents or serve to effect a novation of the Obligations.

12. Release . In consideration of the Lenders’ and the Collateral Agent’s agreements contained in this Amendment, each Loan Party hereby irrevocably releases and forever discharges the Lenders and the Collateral Agent and their affiliates, subsidiaries, successors, assigns, directors, officers, employees, agents, consultants and attorneys (each, a “ Released Person ”) of and from any and all claims, suits, actions, investigations, proceedings or demands, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law of any kind or character, known or unknown, which such Loan Party ever had or now has against Collateral Agent, any Lender or any other Released Person which relates, directly or indirectly, to any acts or omissions of Collateral Agent, any Lender or any other Released Person relating to the Credit Agreement or any other Loan Document on or prior to the date hereof.

[Remainder of Page Intentionally Left Blank; Signature Pages Follow]

 

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IN WITNESS WHEREOF, each of the undersigned has executed this Amendment as of the date set forth above.

 

LOAN PARTIES :
e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.)
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer
JA 139 Fulton Street Corp.
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer
JA 741 Retail Corp.
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer
JA Cosmetics Retail, Inc.
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer
J.A. RF, LLC
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer

 

Second Amendment to Second Lien Credit Agreement


IN WITNESS WHEREOF, each of the undersigned has executed this Amendment as of the date set forth above.

 

J.A. Cherry Hill, LLC
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer
e.l.f. Beauty, Inc. (formerly known as J.A. Cosmetics Holdings, Inc.)
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer

 

Second Amendment to Second Lien Credit Agreement


IN WITNESS WHEREOF, the each of the undersigned has executed this Amendment as of the date set forth above.

 

COLLATERAL AGENT:
U.S. BANK NATIONAL ASSOCIATION, as Collateral Agent
By:  

/s/ Kathy L. Mitchell

Name:   Kathu L. Mitchell
Title:   Vice President

 

First Amendment to Credit Agreement


IN WITNESS WHEREOF, the each of the undersigned Required Lenders has consented to this Amendment as of the date set forth above.

 

PENNANTPARK INVESTMENT CORPORATION, as a Lender
By:  

/s/ Arthur H. Penn

Name:   Arthur H. Penn
Title:   Chief Executive Officer
PENNANTPARK FLOATING RATE CAPITAL LTD., as a Lender
By:  

/s/ Arthur H. Penn

Name:   Arthur H. Penn
Title:   Chief Executive Officer
PENNANTPARK CREDIT OPPORTUNITIES FUND II, LP, as a Lender
By:  

/s/ Arthur H. Penn

Name:   Arthur H. Penn
Title:   Chief Executive Officer

 

Second Amendment to Second Lien Credit Agreement


Exhibit D

See attached.


EXHIBIT D

TO

SECOND LIEN CREDIT AGREEMENT

COMPLIANCE CERTIFICATE

E.L.F. COSMETICS, INC. (formerly known as J.A. Cosmetics US, Inc.)

Date:              , 20     

This certificate is given by e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.), a Delaware corporation, in its capacity as Borrower Agent, pursuant to Section 6.02(a) of that certain Second Lien Credit Agreement dated as of January 31, 2014 among Borrower Agent, e.l.f. Beauty, Inc. (formerly known as J.A. Cosmetics Holdings, Inc.), a Delaware corporation (the “ Initial Borrower ”; the Initial Borrower and each Domestic Subsidiary of Initial Borrower that becomes a “Borrower” thereunder pursuant to a Joinder Agreement collectively, the “ Borrowers ”), the other Loan Parties from time to time party thereto, the Lenders from time to time party thereto, and U.S. Bank National Association, as Collateral Agent for Lenders (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the “ Second Lien Credit Agreement ”). Capitalized terms used herein without definition shall have the meanings set forth in the Second Lien Credit Agreement.

The undersigned Responsible Officer hereby certifies to Collateral Agent and Lenders, solely as an officer of Borrower Agent and not individually, as of the date hereof, that:

(a) the financial statements delivered with this certificate in accordance with Section 6.01(a) and/or 6.01(b) of the Second Lien Credit Agreement were prepared in accordance with GAAP and fairly present in all material respects the financial condition of Holdings and its Subsidiaries as of the dates indicated therein [, subject to year-end adjustments and the absence of footnotes] [note: delete bracketed text where the Compliance Certificate is delivered in conjunction with the annual audited financial statements.]

(b) I have reviewed the terms of the Second Lien Credit Agreement and have made, or caused to be made under my supervision, a review in reasonable detail of the transactions and conditions of Holdings and its Subsidiaries during the accounting period covered by such financial statements;

(c) such review has not disclosed the existence as of the date hereof of a Default or an Event of Default, except as set forth in Schedule 1 hereto, which includes a description of the nature of such Default or Event of Default and what action Borrowers have taken, are undertaking and/or propose to take with respect thereto;

 

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(d) Borrowers are in compliance with the covenants contained in Section 7.12(a) and 7.12(b) of the Second Lien Credit Agreement, as demonstrated by the calculation of such covenants below, except as set forth below;

(e) subsequent to the delivery of the last Compliance Certificate submitted pursuant to the Second Lien Credit Agreement, except as set forth in Schedule 2 hereto, no Loan Party has (i) obtained any U.S. Federal registration of a patent or trademark, or (ii) applied for the U.S. Federal registration of a patent or trademark;

(f) subsequent to the delivery of the last Compliance Certificate submitted pursuant to the Second Lien Credit Agreement, except as set forth in Schedule 3 hereto, (i) no Subsidiary of a Loan Party has merged or consolidated with or liquidated or dissolved into a Loan Party and (ii) no Subsidiary that is not a Loan Party has merged into any other Subsidiary that is not a Loan Party;

(g) subsequent to the delivery of the last Compliance Certificate submitted pursuant to the Second Lien Credit Agreement, except as set forth in Schedule 4 hereto (which shall set forth the information in reasonable detail), there has been no material change in accounting policies or financial reporting practices by any Loan Party or any Subsidiary; and

(h) attached hereto as Schedule 5 is a correct calculation of the Available Amount as of [                      ] .

IN WITNESS WHEREOF, the undersigned officer has executed and delivered this certificate, solely as an officer of Borrower Agent and not individually, this      day of              ,          .

 

E.L.F. COSMETICS, INC. (formerly known as J.A. Cosmetics US, Inc.)
By  

 

Name  

 

Title                                           of the Borrower Agent

 

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CONSOLIDATED TOTAL NET LEVERAGE RATIO

(Section 7.12(a))

 

Consolidated Total Net Funded Debt is defined as follows:    
The sum (but without duplication) of the aggregate principal amount of Indebtedness of Holdings and its Subsidiaries as of the last day of the Measurement Period, determined on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with any Permitted Acquisition or other permitted Investment), solely to the extent consisting of (a) obligations for borrowed money, (b) obligations under Capital Leases and synthetic or other similar financing leases, (c) obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (d) direct or contingent obligations arising under letters of credit (including standby and commercial but excluding all Letters of Credit (as defined in the Senior Loan Agreement), bankers’ acceptances, bank guarantees and similar instruments, (e) obligations to pay the deferred purchase price of property or services (other than (i) accrued expenses and trade payables incurred in the Ordinary Course of Business, (ii) any working capital adjustment or any earnout obligation, deferred compensation, non-compete or similar obligations under employment agreements of such Person and (iii) any earnout obligations and other similar deferred purchase price obligations (other than obligations with respect to seller notes) solely to the extent such earnout obligations and other similar deferred purchase price obligations (other than obligations with respect to seller notes) either (x) are subordinated in right of payment to the Obligations on terms reasonably satisfactory to the Collateral Agent or (y) are payable (including with respect to principal, interest and fees) no earlier than the date that is 180 days after the Facility Termination Date), in each case, only if due and payable, (f) obligations with respect to seller notes, (g) obligations with respect to the redemption, repayment or other repurchase or payment in respect of any Disqualified Equity Interest; provided, Consolidated Total Net Funded Debt shall not include (i) obligations under Swap Contracts entered into in the Ordinary Course of Business for bona fide hedging purposes and not for speculative purposes and (ii) unsecured and non-interest bearing obligations of Holdings arising as a result of the exercise of the Seller Put Option    
   

 

 

3


Less:    Unrestricted cash and Cash Equivalents of any Loan Party (other than any Net Cash Proceeds from the issuance by Holdings of any Permitted Cure Securities, or cash common equity contributions received by Holdings pursuant to Section 8.04 of the Second Lien Credit Agreement) with respect to which Collateral Agent has a perfected Lien, not to exceed $10,000,000 in the aggregate; provided, that notwithstanding the foregoing, until the expiration of the time period permitted under Section 6.14 of the Second Lien Credit Agreement, such cash and Cash Equivalents shall be deducted for purposes of calculating Consolidated Total Net Funded Debt regardless of whether Collateral Agent has a perfected Lien on such cash and Cash Equivalents    
      

 

Consolidated Total Net Funded Debt as of the last day of the Measurement Period   $  
      

 

Adjusted Consolidated EBITDA for the Measurement Period is defined as follows 1 :    
Consolidated net income (or loss) for the Measurement Period of Holdings, the Borrowers, and their Subsidiaries, but excluding: (a) the income (or loss) of any Person that is not a Subsidiary, provided that consolidated net income shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash to a Borrower or Subsidiary thereof from a Person that is not a Subsidiary in respect of such period and (b) except as otherwise provided below, the income (or loss) of any Person accrued prior to the date it became a Subsidiary of a Borrower or is merged into or consolidated with Borrower or a Subsidiary of a Borrower; provided, extraordinary, non-recurring or unusual gains, losses, charges or expenses shall be excluded from the calculation of consolidated net income (or loss) (it being understood, for the avoidance of doubt, that items that are subject to a cap in other areas of the calculation of Adjusted Consolidated EBITDA shall not be permitted to be added-back on the basis of being “unusual” or “non-recurring”)   $  
      

 

 

 

1   To include Acquired EBITDA and exclude Disposed EBITDA per the paragraph on page 10 of this certificate.

 

4


Plus (without duplication):    

Any provision for taxes based on income, profits or capital, including but not limited to federal, provincial, state, franchise and similar taxes and foreign withholding taxes of such Person paid or accrued during such period (including penalties, interest, costs and expenses related to such taxes or arising from any tax examinations) deducted in the determination of consolidated net income for the Measurement Period

   
   

 

Interest expense (including but not limited to (i) net payments, if any, pursuant to interest rate Swap Contracts entered into for the purpose of hedging interest rate risk, (ii) bank fees, (iii) costs of surety bonds in connection with financing activities, and (iv) fees, charges, commissions, and discounts owed with respect to letters of credit or bankers acceptances) (less, interest income) deducted (or included) in the determination of consolidated net income for the Measurement Period

   
   

 

Amortization and depreciation (including but not limited to the amortization of deferred financing fees or costs and the amortization of original issue discount resulting from the issuance of Indebtedness at less than par and, to the extent a synthetic or other similar financing lease is Indebtedness, rental payments in connection with such leases that are expensed) deducted in the determination of consolidated net income for the Measurement Period

   
   

 

Losses (less gains) from asset Dispositions (other than asset Dispositions in the Ordinary Course of Business) included in the determination of consolidated net income for the Measurement Period

   
   

 

Non-cash expenses, charges or losses (less non-cash gains or income), including any write-offs or write-downs, including impairment charges, deducted (or included) in the determination of consolidated net income for the Measurement Period; provided that if any such amount represents an accrual or reserve for a potential cash item in any future period, the cash payment in respect thereof that is paid in a subsequent Measurement Period shall be deducted from Adjusted Consolidated EBITDA to such extent in such subsequent Measurement Period

   
   

 

 

5


Expenses and fees deducted in the determination of consolidated net income and incurred during the Measurement Period to consummate the Transaction, whether occurring before or within 180 days after the Closing Date or subsequently required to account for the Transaction from a GAAP perspective and in accordance with GAAP

   
   

 

Expenses and fees (including expenses and fees paid to Collateral Agent and Lenders and the lenders under the Senior Indebtedness Documents and any other Indebtedness) deducted in the determination of consolidated net income and incurred during the Measurement Period and after the Closing Date in connection with the consummation or administration of the Loan Documents and the Senior Indebtedness Documents or the documents governing such other Indebtedness (including in connection with any actual or proposed amendment, supplement, waiver or other modification to the Loan Documents or Senior Indebtedness Documents or any other Indebtedness, whether or not consummated, including, for the avoidance of doubt, the Second Amendment to Second Lien Credit Agreement and the First Amendment to Senior Loan Agreement)

   
   

 

Fees and expenses incurred under the Management Agreement, and fees, expenses and indemnifications of directors, in each case permitted under the Second Lien Credit Agreement and deducted in the determination of consolidated net income during the Measurement Period

   
   

 

Expenses deducted in the determination of consolidated net income during the Measurement Period and covered by indemnification or other reimbursement provisions, or purchase price adjustments in connection with any Permitted Acquisition or other permitted Investment (to the extent deducted from the determination of consolidated net income during the Measurement Period), in each case to the extent actually received in cash during such Measurement Period, or to the extent that Borrower Agent reasonably expects a payment in respect of the applicable indemnification or other reimbursement provision, or purchase price adjustment will be received in cash within 180 days after the date such expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually paid, indemnified or reimbursed in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period)

   
   

 

 

6


Expenses and fees deducted in the determination of consolidated net income during the Measurement Period and which are incurred in connection with the consummation (or attempted or proposed or anticipated consummation) of any Permitted Acquisitions or any Acquisitions which would reasonably be expected to have (if they had been consummated) satisfied the requirements of the defined term “Permitted Acquisition” but for the fact they are not consummated; provided that the add-back for all amounts attributable to all such non-consummated transactions shall not exceed $1,000,000 (or such higher amount reasonably acceptable to Collateral Agent) in any Fiscal Year

   
   

 

Expenses and fees deducted in the determination of consolidated net income during the Measurement Period and which are incurred in connection with any proposed or actual issuance of debt or equity, restricted payment, Investment permitted under Section 7.03(b) or (l) of the Second Lien Credit Agreement or asset Dispositions (other than asset Dispositions in the Ordinary Course of Business); provided, that the add-back for all amounts attributable to all such non-consummated transactions shall not exceed $1,000,000 (or such higher amount reasonably acceptable to Collateral Agent) in any Fiscal Year

   
   

 

Without duplication of any other add-back set forth herein, losses, charges or expenses deducted in the determination of consolidated net income during the Measurement Period, but for which insurance or indemnity recovery is actually received in cash during the Measurement Period or to the extent that Borrower Agent reasonably expects such insurance or indemnity recovery will be received in cash within 180 days after the date such loss, charge or expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually indemnified or recovered in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period)

   
   

 

 

7


Without duplication of any other add-back set forth herein, expenses, charges or losses deducted in the determination of consolidated net income during the Measurement Period and reimbursed by third parties to the extent such reimbursements are actually received in cash during the Measurement Period or to the extent that Borrower Agent reasonably expects such reimbursement will be received in cash within 180 days after the date such loss, charge or expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually reimbursed in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period)

   
   

 

Non-cash exchange or translation losses (less non-cash gains) deducted (or included) in the determination of consolidated net income during the Measurement Period and arising from foreign currency hedging transactions or currency fluctuations

   
   

 

Non-cash deductions or charges (less non-cash gains or positive adjustments, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Adjusted Consolidated EBITDA in any prior Measurement Period and excluding any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase Adjusted Consolidated EBITDA in such prior period) to net income attributable to purchase accounting adjustments made in accordance with GAAP

   
   

 

the amount of any earn out or other similar deferred purchase price obligation (other than obligations constituting salary payments pursuant to ordinary course employment agreements and salary bonuses payable thereunder) which was reserved or paid during such Measurement Period and deducted in the calculation of consolidated net income for such Measurement Period, to the extent such obligations are permitted under the Second Lien Credit Agreement

   
   

 

 

8


(i) the amount of any deferred compensation, signing bonuses, retention and relocation costs and expenses, restructuring charges, integration costs or other business optimization expenses, costs associated with establishing new facilities, systems and distribution space or reserves, including any one-time costs incurred in connection with acquisitions, and costs related to the closure and/or consolidation of facilities, in each case, to the extent deducted in the calculation of consolidated net income for the Measurement Period (collectively, the “ Restructuring Charges, Business Optimization Expenses and Reserves ”), as calculated in the good faith determination of the Borrowers and as certified by the Borrower Agent’s chief financial officer, chief executive officer, controller or other comparable executive and (ii) the amount of cost savings, operating expense reductions, and synergies projected by the Borrowers in good faith to be realized as a result of specified actions taken or initiated prior to or during the 12-month period following the date thereof (which will be added to Adjusted Consolidated EBITDA as so projected until fully realized and calculated on a Pro Forma Basis as though such cost savings, operating expense reductions and synergies had been realized during such period), net of the amount of actual benefits realized during such period from such actions; provided that (x) such cost savings, operating expense reductions and synergies are reasonably identifiable and factually supportable (in the good faith determination of the Borrowers) and (y) such actions have been taken or initiated or are reasonably expected to be taken, no later than 12 months after the last day of the relevant Measurement Period (it being agreed and understood that no add-back for Restructuring Charges, Business Optimization Expenses and Reserves shall be permitted in any subsequent Measurement Period where any such action is discontinued or is no longer reasonably expected to be taken) (collectively, the “ Cost Savings and Synergies ”); provided, that the aggregate amount of add-backs made for the revenue synergies portion of Cost Savings and Synergies during any Measurement Period shall not exceed 20% of Adjusted Consolidated EBITDA on a Pro Forma Basis for that period calculated after giving pro forma effect to the inclusion of the add-backs pursuant to this clause and, without duplication, the Pro Forma Adjustments, and the add-backs pursuant to this clause shall not be duplicative of other adjustments for the same Measurement Period; provided, further, that the aggregate amount of add-backs made for Restructuring Charges, Business Optimization Expenses and Reserves and Cost Savings and Synergies during any Measurement Period, together with the aggregate Pro Forma

   
   

 

 

9


Adjustments during such Measurement Period, shall not exceed 20% (or such greater amount approved by Collateral Agent) of Adjusted Consolidated EBITDA on a Pro Forma Basis for that period calculated after giving pro forma effect to the inclusion of the add-backs pursuant to this clause and after giving effect to the Pro Forma Adjustments as set forth below, and the add-backs pursuant to this clause shall not be duplicative of other adjustments for the same Measurement Period

   

 

10


the amount of any severance costs to the extent deducted in the calculation of consolidated net income for the Measurement Period, as calculated in the good faith determination of the Borrowers and as certified by the Borrower Agent’s chief financial officer, chief executive officer, controller or other comparable executive

   
   

 

any costs or expense incurred by Holdings, the Borrowers or a Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of Holdings (or the Borrowers through Holdings) or Net Cash Proceeds of an issuance of Equity Interests (other than Disqualified Equity Interests) of Holdings or the Borrowers

   
   

 

proceeds received during such Measurement Period by Holdings and its Subsidiaries of business interruption insurance or business interruption proceeds that Borrower Agent reasonably expects will be received in cash within 180 days of the date of the business interruption event giving rise to such proceeds (with a deduction in the applicable future Measurement Period for any amount so added back to the extent not actually received in a subsequent Measurement Period and added back hereto in a prior Measurement Period, provided, that if such proceeds are actually received in a subsequent Measurement Period and previously added back in a prior Measurement Period, such amount shall not be permitted to be added back for such subsequent Measurement Period), in each case, to the extent not already included in consolidated net income

   
   

 

payments to or on behalf of Holdings or any indirect parent company of the Borrowers for out-of-pocket legal, accounting and filing costs, director fees, expenses and indemnities and other overhead expenses incurred in the Ordinary Course of Business for the benefit of Borrowers and their Subsidiaries or otherwise related to Holdings’ or such indirect parent company’s ownership of Borrowers and their Subsidiaries, in each case, to the extent deducted in the calculation of consolidated net income

   
   

 

 

11


  Pro Forma Adjustments (as defined in the Second Lien Credit Agreement)    
     

 

  for purposes of compliance with the financial covenants set forth in Sections 7.12(a) and (b), the amount of any proceeds from the issuance of Permitted Cure Securities or any cash common equity contributions received in connection with an exercise of a Cure Right pursuant to Section 8.04 of the Second Lien Credit Agreement in respect of such Measurement Period    
     

 

Less:      
  Cash payments made during such Measurement Period in respect of an accrual or reserve added back to consolidated net income in the calculation of Adjusted Consolidated EBITDA in a prior Measurement Period    
     

 

Adjusted Consolidated EBITDA for the Measurement Period (for use in Section 7.12(b) of the Compliance Certificate) 2   $  
     

 

 

 

2   Notwithstanding the foregoing, Adjusted Consolidated EBITDA for each period set forth below shall be deemed to be the amount set forth below opposite such month (subject to Pro Forma Adjustments and as a result of acquisitions, all as set forth above):

 

12


Period    Consolidated EBITDA  

Quarter ending June 30, 2013

   $  3,785,428   

Quarter ending September 30, 2013

   $ 8,112,506   

Month ending October 31, 2013

   $ 4,659,358   

Month ending November 30, 2013

   $ 4,780,369   

Notwithstanding the foregoing there shall be included in determining Adjusted Consolidated EBITDA for any period, without duplication, (A) the Acquired EBITDA of any Person, all or substantially all of the assets of a Person, or any business unit, line of business or division of any Person acquired by the Borrowers or any Subsidiary during such period (but not the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired), to the extent not subsequently sold, transferred or otherwise disposed of by the Borrowers or such Subsidiary during such Measurement Period (each such Person, property, business or asset acquired and not subsequently so disposed of, an “ Acquired Entity or Business ”), based on the actual Acquired EBITDA of such Acquired Entity or Business for such Measurement Period (including the portion thereof occurring prior to such acquisition) and (B) an adjustment in respect of each Acquired Entity or Business equal to the amount of the Pro Forma Adjustment with respect to such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition), in the case of each of the foregoing clauses (A) and (B), as specified in a certificate executed by a Responsible Officer and delivered to the Collateral Agent; provided, that the aggregate amount of Pro Forma Adjustments for such period, together with the aggregate add-backs to consolidated net income made for Restructuring Charges, Business Optimization Expenses and Reserves and Cost Savings and Synergies during such period, shall not exceed 20% of Adjusted Consolidated EBITDA on a Pro Forma Basis for that period calculated after giving pro forma effect to the Pro Forma Adjustments pursuant to this clause and, without duplication, the add-backs to consolidated net income made for Restructuring Charges, Business Optimization Expenses and Reserves and Cost Savings and Synergies, and the Pro Forma Adjustments pursuant to this clause shall not be duplicative of other adjustments for the same period. There shall be excluded in determining Adjusted Consolidated EBITDA for any period the Disposed EBITDA of any Person, all or substantially all of the assets of a Person, or any business unit, line of business or division of any Person sold, transferred or otherwise disposed of, closed or classified as discontinued operations by the Borrowers or any Subsidiary during such Measurement Period (each such Person, property, business or asset so sold or disposed, a “ Sold Entity or Business ”), based on the actual Disposed EBITDA of such Sold Entity or Business for such Measurement Period (including the portion thereof occurring prior to such sale, transfer, disposition or conversion).

 

Consolidated Total Net Leverage Ratio (ratio of Consolidated Total Net Funded Debt as of the last day of the Measurement Period to Adjusted Consolidated EBITDA for the Measurement Period)                  to 1.0
Maximum Permitted Consolidated Total Net Leverage Ratio for the Measurement Period                  to 1.0
In Compliance    Yes/No

 

13


CONSOLIDATED INTEREST COVERAGE RATIO

(Section 7.12(b))

 

Interest expenses paid (or required to be paid) in cash during the Measurement Period, net of (x) interest income received in cash and (y) net payments, if any, received pursuant to interest rate obligations under any Swap Contracts with respect to Indebtedness, by Holdings and its Subsidiaries for the Measurement Period (“ Total Cash Interest Expenses ”) 3    $                        
Adjusted Consolidated EBITDA for the Measurement Period (calculated in the manner required by Section 7.12(a) of the Compliance Certificate)    $                        
Consolidated Interest Coverage Ratio (Ratio of Adjusted Consolidated EBITDA to Total Cash Interest Expenses) for the Measurement Period                    to 1.0   
Minimum required Consolidated Interest Coverage Ratio for the Measurement Period                    to 1.0   
In Compliance      Yes/No   

 

 

3   (a) For purposes of calculating the Consolidated Interest Coverage for the Measurement Periods ending March 31, 2014, June 30, 2014, September 30, 2014 and December 31, 2014, Total Cash Interest Expenses for each such Measurement Period shall be calculated by taking the amount of interest for the period from the Closing Date through the last day of the applicable Measurement Period and multiplying such amount by a fraction, the numerator of which is 365 and the denominator of which is the number of days from the Closing Date through the last day of such Measurement Period.

(b) For the avoidance of doubt, Total Cash Interest Expense shall be calculated on a Pro Forma Basis.

 

14


CALCULATION OF CONSOLIDATED SENIOR NET LEVERAGE RATIO

 

Consolidated Senior Net Debt is defined as follows:   
Consolidated Total Net Funded Debt (calculated in Section 7.12(a) of the Compliance Certificate) as of the last day of the Measurement Period    $                        
Less:   the outstanding principal balance of all Subordinated Indebtedness (as defined in the Senior Loan Agreement) as of the last day of the Measurement Period    $                        
Consolidated Senior Net Debt as of the last day of the Measurement Period    $                        
Adjusted Consolidated EBITDA (calculated in Section 7.12(a) of the Compliance Certificate) for the Measurement Period    $                        
Consolidated Senior Net Leverage Ratio (ratio of Consolidated Senior Net Debt as of the last day of the Measurement Period to Adjusted Consolidated EBITDA for the Measurement Period)                    to 1.0   

 

15


Exhibit E

See attached.


EXHIBIT E

TO

SECOND LIEN CREDIT AGREEMENT

EXCESS CASH FLOW CERTIFICATE

E.L.F. COSMETICS, INC. (formerly known as J.A. Cosmetics US, Inc.)

Date:              , 20     

This certificate is given by e.l.f. Cosmetics, Inc. (formerly known as J.A. Cosmetics US, Inc.), a Delaware corporation, in its capacity as Borrower Agent, pursuant to Section 6.02(b) of that certain Second Lien Credit Agreement dated as of January 31, 2014 among Borrower Agent, e.l.f. Beauty, Inc. (formerly known as J.A. Cosmetics Holdings, Inc.), a Delaware corporation (the “ Initial Borrower ”; the Initial Borrower and each Domestic Subsidiary of Initial Borrower that becomes a “Borrower” thereunder pursuant to a Joinder Agreement collectively, the “ Borrowers ”), the other Loan Parties from time to time party thereto, the Lenders from time to time party thereto, and U.S. Bank National Association, as Collateral Agent for Lenders (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the “ Second Lien Credit Agreement ”). Capitalized terms used herein without definition shall have the meanings set forth in the Second Lien Credit Agreement.

The undersigned Responsible Officer hereby certifies to Collateral Agent and Lenders, solely as an officer of Borrower Agent and not individually, as of the date hereof that:

 

  (a) set forth below is a correct calculation of Excess Cash Flow for the year ended December 31, 20      and a correct calculation of the required prepayment of:

$                      ; and

 

  (b) Schedule I attached hereto is based on the audited financial statements which have been delivered to the Collateral Agent in accordance with subsection 6.01(a) of the Second Lien Credit Agreement.

[Remainder of page intentionally blank; signature page follows]

 

1


IN WITNESS WHEREOF, the undersigned officer has executed and delivered this certificate, solely as an officer of Borrower Agent and not individually, this      day of          , 201    .

 

E.L.F. COSMETICS, INC. (formerly known as J.A. Cosmetics US, Inc.), as Borrower Agent
By  

 

Name  

 

Title  

 

 

2


Schedule I

to Excess Cash Flow Certificate

E.L.F. COSMETICS, INC. (formerly known as J.A. Cosmetics US, Inc.)

Calculations as of              , 201   

Excess Cash Flow Calculation

 

A.    Cash Flow
   1.    Adjusted Consolidated EBITDA for the applicable Fiscal Year (calculated in the manner set forth in the Compliance Certificate, but for the avoidance of doubt, excluding any Cure Amount included in the calculation of Adjusted Consolidated EBITDA)   $  
         

 

   Less, in each case, during the applicable Fiscal Year and without duplication:1    
   2.    Unfinanced Capital Expenditures (calculated in the manner set forth in Schedule III hereto)   $  
         

 

   3.    Any taxes based on income, profits or capital, including but not limited to federal, provincial, state, franchise and similar taxes and foreign withholding taxes paid during such period (including penalties, interest, costs and expenses related to such taxes or arising from any tax examination) paid in cash and deducted in the determination of net income, net of any cash tax credit or other cash tax benefits received   $  
         

 

   4.    Interest expense (including but not limited to (i) net payments, if any, pursuant to interest rate Swap Contracts entered into for the purpose of hedging interest rate risk, (ii) bank fees, (iii) costs of surety bonds in connection with financing activities, and (iv) fees, charges, commissions, and discounts owed with respect to letters of credit or bankers acceptances) paid in cash, net of interest income received in cash, by Holdings and its Subsidiaries   $  
         

 

 

 

1 For the avoidance of doubt, (a) the deductions set forth in items A2 through A10 shall exclude such amounts attributable to the target of a Permitted Acquisition prior to the consummation of such Acquisition and (b) any amounts included as Unfinanced Capital Expenditures shall not be included as a deduction in any other item.

 

3


   5.    The aggregate amount of amortization payments required to be made, and actually made, by Holdings and its Subsidiaries in respect of all principal on all Indebtedness   $  
         

 

   6.    (i) Fees and expenses paid pursuant to the Management Agreement and (ii) directors’ fees, expenses and indemnifications, in case of each of the foregoing clauses (i) and (ii), to the extent paid in cash, permitted to be paid pursuant to the Second Lien Credit Agreement and added back to net income in the calculation of Adjusted Consolidated EBITDA   $                       
         

 

   7.    Purchase price paid in cash in respect of all Permitted Acquisitions or Investments made in cash, in each instance permitted pursuant to Section 7.03(b), (f) or (l) of the Second Lien Credit Agreement to the extent not funded with proceeds from the incurrence of Indebtedness (other than Revolving Loans, as defined in the Senior Loan Agreement), the issuance of Equity Interests (including capital contributions) or the Available Amount   $  
         

 

   8.    Transaction fees, costs and expenses paid in cash and incurred in connection with (i) the consummation (or attempted or proposed or anticipated consummation) of any Permitted Acquisitions or any Acquisitions which would reasonably be expected to have (if they had been consummated) satisfied the requirements of the defined term “Permitted Acquisition” but for the fact that they are not consummated and (ii) any proposed or actual issuance of debt or equity, restricted payment or other Investment permitted pursuant to Section 7.03(b) or (l), in each instance in (i) and (ii) to the extent (a) not funded with proceeds of Indebtedness (other than Revolving Loans, as defined in the Senior Loan Agreement), from the issuance of Equity Interests (including capital contributions) or the Available Amount and (b) added back to net income in the determination of Adjusted Consolidated EBITDA   $                       
         

 

   9.    Fees and expenses (including those paid to Collateral Agent and the Lenders and the lenders under the Subordinated Indebtedness Documents and any other Indebtedness) paid in cash in connection with the consummation or administration of the Loan Documents or Subordinated Indebtedness Documents (including, but not limited to fees and expenses in connection with the Transaction) or any other Indebtedness (including in connection with any actual or proposed amendment, supplement, waiver or other modification to the Loan Documents or Subordinated Indebtedness Documents or any other Indebtedness, whether    

 

4


      or not consummated), to the extent added back to net income in the determination of Adjusted Consolidated EBITDA, in each instance to the extent not funded with proceeds of Indebtedness (other than Revolving Loans, as defined in the Senior Loan Agreement) or from the issuance of Equity Interests (including capital contributions)   $  
         

 

   10.    Purchase price adjustments in connection with any Permitted Acquisition or other permitted Investment, in each case to the extent paid in cash during such Fiscal Year not funded with proceeds of Indebtedness (other than Revolving Loans, as defined in the Senior Loan Agreement) or from the issuance of Equity Interests (including capital contributions)   $  
         

 

   11.    the amount of any earn out obligation paid in cash during such Fiscal Year   $  
         

 

   12.    Restructuring Charges, Business Optimization Expenses and Reserves (as defined in Exhibit D to the Second Lien Credit Agreement) (other than any such non-cash Restructuring Charges, Business Optimization Expenses and Reserves to the extent of any cash or cash savings actually realized in such Fiscal Year as a result of such non-cash Restructuring Charges, Business Optimization Expenses and Reserves) to the extent added back to net income in the determination of Adjusted Consolidated EBITDA   $  
         

 

   13.    Cost Savings and Synergies (as defined in Exhibit D to the Second Lien Credit Agreement) to the extent added back to net income in the determination of Adjusted Consolidated EBITDA   $  
         

 

   14.    proceeds received by Holdings and its Subsidiaries of business interruption insurance to the extent added back to net income in the determination of Adjusted Consolidated EBITDA   $  
         

 

   15.    Restricted Payments paid in cash and permitted by Section 7.06(c), (d) or (e) of the Second Lien Credit Agreement   $  
         

 

   16.    Any increases in working capital of Holdings and its Subsidiaries (as calculated pursuant to Schedule II below)   $  
         

 

   17.    Amount of any proceeds from the issuance of Permitted Cure Securities or cash common equity contributions received in connection with an Equity Cure pursuant to Section 8.04 of the Second Lien Credit Agreement, to the extent added back to net income in the determination of Adjusted Consolidated EBITDA and without duplication of amounts excluded pursuant to A.1. above   $  
         

 

 

5


   18.    All other add backs to Adjusted Consolidated EBITDA to the extent paid in cash and added back to net income in the determination of Adjusted Consolidated EBITDA, in each instance to the extent not funded with proceeds from the incurrence of Indebtedness (other than Revolving Loans, as defined in the Senior Loan Agreement), the issuance of Equity Interests (including capital contributions), the Available Amount, insurance proceeds, indemnity payments or other third party reimbursements   $  
         

 

   19.    cash losses from extraordinary, non-recurring or unusual items   $  
         

 

   20.    the amount paid in cash in respect of any item for which, in a prior Fiscal Year, a non-cash loss, expense, accrual or charge (other than any non-cash accrual for a potential cash item in any future period, the cash payment of which was paid in the applicable Fiscal Year) was included in determining Adjusted Consolidated EBITDA in such prior Fiscal Year   $  
         

 

   21.    severance costs to the extent paid in cash and added back to net income in the determination of Adjusted Consolidated EBITDA   $  
         

 

   22.    Restricted Payments paid in cash and permitted pursuant to Section 7.06(m) to the extent not funded with the proceeds of the incurrence of Indebtedness (other than Revolving Loans, as defined in the Senior Loan Agreement), the issuance of Equity Interests (including capital contributions), the Available Amount, insurance proceeds, indemnity payments or other third party reimbursements    
B.    Total deductions from Adjusted Consolidated EBITDA (sum of A2 through A22 above)   $  
         

 

C.    Any cash gains from extraordinary items, other than any business interruption proceeds   $  
         

 

D.    Any decreases in working capital of Holdings and its Subsidiaries for the applicable Fiscal Year (as calculated pursuant to Schedule II below)   $  
         

 

E.    Excess Cash Flow (A1 minus B plus C plus D above)   $  
         

 

F.    Applicable ECF Percentage     [50%][25%][0%] 2
G.    Gross Excess Cash Flow Prepayment Amount (result of E multiplied by F above)   $  
         

 

 

2 Choose applicable percentage pursuant to Section 2.06(b)(i) of the Second Lien Credit Agreement.

 

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H.      The aggregate amount of voluntary prepayments of the Term Loans (other than Discounted Voluntary Prepayments), the Term Loans (as defined in the Senior Loan Agreement) and the Revolving Loans (as defined in the Senior Loan Agreement) to the extent accompanied by a permanent reduction in the Revolving Credit Commitment (as defined in the Senior Loan Agreement), in each case, made (i) during such Fiscal Year (other than any voluntary prepayments made during the first 120 days of such Fiscal Year to the extent such voluntary prepayments were credited in the calculation of the Excess Cash Flow prepayment for the prior Fiscal Year) or (ii) within 120 days after the end of the Fiscal Year for which such Excess Cash Flow is being calculated that are applied in the manner set forth in Section 2.06(b)(iv) of the Second Lien Credit Agreement, in each case, to the extent not financed with proceeds from the incurrence of long-term Indebtedness.   $                       
        

 

I.      Net Excess Cash Flow Prepayment Amount (G minus H above)   $  
        

 

For the avoidance of doubt, for purposes of calculating Excess Cash Flow for any Fiscal Year, for each Permitted Acquisition or other Investment constituting an Acquisition permitted to be made under the Second Lien Credit Agreement consummated during such Fiscal Year, the Adjusted Consolidated EBITDA of a target of any such Permitted Acquisition or Investment shall be included in such calculation only from and after the date of the consummation of such Permitted Acquisition and/or Investment and (y) for the purposes of calculating Net Working Capital, the (A) total assets of a target of such Permitted Acquisition (other than cash and Cash Equivalents), as calculated as at the date of consummation of the applicable Permitted Acquisition, which may properly be classified as current assets on a consolidated balance sheet of Holdings and its Subsidiaries in accordance with GAAP (assuming, for the purpose of this clause (A), that such Permitted Acquisition has been consummated) and (B) the total liabilities of Holdings and its Subsidiaries, as calculated as at the date of consummation of the applicable Permitted Acquisition, which may properly be classified as current liabilities on a consolidated balance sheet of Holdings and its Subsidiaries in accordance with GAAP (assuming, for the purpose of this clause (B), that such Permitted Acquisition has been consummated), shall, in the case of both immediately preceding clauses (A) and (B), be calculated as the difference between the Net Working Capital at the end of the applicable Fiscal Year from the date of consummation of the Permitted Acquisition.

 

7


Schedule II

to Excess Cash Flow Certificate

Decrease (increase) in Working Capital, for the purposes of the calculation of Excess Cash Flow, means the following:

 

     Beg. of Period      End of Period  
Consolidated current assets:    $                            $                        
Less (to the extent included in current assets):      

Cash

                                                         

Cash Equivalents

                                                         

Deferred Tax Assets

                                                         
Adjusted current assets    $                            $                        
Consolidated current liabilities:    $                            $                        
Less (to the extent included in current liabilities):      

Revolving Loans (as defined in the Senior Loan Agreement)

                                                         

Current portion of Indebtedness and accrued interest thereon

                                                         

Deferred Tax Liabilities

                                                         

Current liabilities consisting of deferred revenue

                                                         
Adjusted current liabilities    $                            $                        
Working Capital (adjusted current assets minus adjusted current liabilities)    $                            $                        
Decrease (Increase) in Working Capital (beginning of period minus end of period Working Capital)       $                        

 

8


Schedule III

to Excess Cash Flow Certificate

Calculation of Unfinanced Capital Expenditures

 

Expenditures capitalized during the Fiscal Year by Holdings and its Subsidiaries that, in conformity with GAAP, are or are required to be included as additions to property, plant or equipment or other long-term assets   $  
      

 

Less, in each instance to the extent included above and without duplication:    
(i)    expenditures made in connection with the replacement, substitution, restoration or repair of assets to the extent financed with (x) insurance proceeds paid on account of the loss of or damage to the assets being replaced, restored or repaired or (y) awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced    
      

 

(ii)    the purchase price of equipment that is purchased substantially concurrently with the trade-in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time,    
      

 

(iii)    the purchase of plant, property or equipment to the extent financed with the proceeds of Dispositions that are not required to be applied to prepay Term Loans pursuant to Section 2.06(b)(ii) of the Second Lien Credit Agreement    
      

 

(iv)    expenditures that are accounted for as capital expenditures by Holdings, the Borrowers or any Subsidiary and that actually are paid for or reimbursed by a Person other than Holdings, the Borrowers or any Subsidiary                         
      

 

(v)    expenditures that are paid with proceeds of Equity Interests (including capital contributions) or the Available Amount    
      

 

(vi)    the book value of any asset owned by the Borrowers or any Subsidiary prior to or during such period to the extent that such book value is included as a capital expenditure during such period as a result of such Person reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having been made in such period; provided that (x) any expenditure necessary in order to    

 

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   permit such asset to be reused shall be included as a Consolidated Capital Expenditure during the period in which such expenditure actually is made and (y) such book value shall have been included in Consolidated Capital Expenditures when such asset was originally acquired    
      

 

(vii)    any capitalized interest expense reflected as additions to property, plant or equipment in the consolidated balance sheet of Holdings, the Borrowers and their Subsidiaries    
      

 

(viii)    any non-cash compensation or other non-cash costs reflected as additions to property, plant or equipment in the consolidated balance sheet of Holdings, the Borrowers and their Subsidiaries    
      

 

Equals:    Consolidated Capital Expenditures   $  
      

 

Less:    Consolidated Capital Expenditures financed during the Fiscal Year under Capital Leases or other Indebtedness (excluding drawings under the Revolving Credit Facility)    
      

 

Equals:    Unfinanced Capital Expenditures   $  
      

 

 

10

Exhibit 10.9

JOINDER TO SUBORDINATION AND INTERCREDITOR AGREEMENT

This J OINDER TO SUBORDINATION AND INTERCREDITOR AGREEMENT (this “ Joinder ”) dated as of the 31st day of January, 2014 from J.A. COSMETICS US, INC. , a Delaware corporation (“ J.A. Cosmetics ”), JA COSMETICS RETAIL, INC. , a New York corporation (“ JA Cosmetics Retail ”), JA 741 RETAIL CORP. , a New York corporation (“ JA 741 Retail ”) and JA 139 FULTON STREET CORP. , a New York corporation (“ JA 139 Fulton ”; and with J.A. Cosmetics, JA Cosmetics Retail, JA 741 Retail and JA 139 Fulton, each a “ New Obligor ” and collectively, the “ New Obligors ”), to BANK OF MONTREAL , a Canadian chartered bank acting through its Chicago office, as Administrative Agent for all Senior Lenders under the Subordination Agreement referred to below, and to the JUNIOR CREDITORS referred to below. Capitalized terms used but not defined herein shall have the meaning set forth in the Subordination Agreement referred to below.

RECITALS :

A. (i) J.A. Cosmetics Holdings, Inc., a Delaware corporation (“ Initial Borrower ”; Initial Borrower is sometimes referred to herein as the “ Existing Obligor ”), has entered into that certain Credit Agreement dated as of January 31, 2014 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Senior Credit Agreement ”) with Administrative Agent, the Senior Lenders and the other Loan Parties from time to time party thereto and (ii) Initial Borrower has entered into that certain Second Lien Credit Agreement dated as of January 31, 2014 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Junior Credit Agreement ”) with U.S. Bank National Association as collateral agent (the “ Junior Agent ”) for the lenders from time to time party to the Junior Credit Agreement and each other holder of Junior Debt from time to time, PennantPark Investment Corporation, PennantPark Floating Rate Capital Ltd. and PennantPark Credit Opportunities Fund, LP (each a “ Junior Lender ” and, collectively, the “ Junior Lenders ”; the Junior Lenders and the Junior Agent are each sometimes referred to herein collectively as the “ Junior Creditors ” and each individually, as a “ Junior Creditor ”).

B. The Junior Creditors have entered into that certain Subordination and Intercreditor Agreement dated as of January 31, 2014 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Subordination Agreement ”) with the Administrative Agent and the Existing Obligor.

C. Pursuant to the terms of the Subordination Agreement, each New Obligor is required to join the Subordination Agreement.

NOW, THEREFORE, in accordance with the terms of the Subordination Agreement and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, each New Obligor hereby agrees as follows:

1. Such New Obligor has received and reviewed a copy of the Subordination Agreement. Such New Obligor is and shall be an “Obligor” under the Subordination Agreement and agrees to be bound by the terms and provisions thereof as an “Obligor”. All references in the Subordination Agreement to the term “Borrower Agent” shall be deemed to refer to J.A.


Cosmetics and all references in the Subordination Agreement to the term “Borrower” or “Borrowers” shall be deemed to refer to or include, as applicable, J.A. Cosmetics and each New Obligor who joins the Senior Credit Agreement pursuant to a Joinder Agreement as a “Borrower”. All references in the Subordination Agreement to the term “Obligor” or “Obligors” shall be deemed to refer to or include, as applicable, each New Obligor.

2. Except as specifically modified hereby, all of the terms and conditions of the Subordination Agreement remain unchanged and are in full force and effect. Any reference to the Subordination Agreement contained in the Senior Credit Agreement, any other Senior Debt Document, the Note Purchase Agreement or any other Subordinated Debt Document shall be deemed a reference to the Subordination Agreement, as modified hereby.

3. THIS JOINDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. EACH OF THE JUNIOR CREDITORS, SENIOR AGENT, SENIOR LENDERS, AND THE NEW OBLIGORS HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN NEW YORK, NEW YORK AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT, SHALL BE LITIGATED IN SUCH COURTS. EACH OF THE JUNIOR CREDITORS, SENIOR AGENT, SENIOR LENDERS, AND THE NEW OBLIGORS ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVE ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS JOINDER.

4. This Joinder may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart. Delivery of an executed signature page of this Joinder by facsimile transmission or electronic transmission shall be as effective as delivery of a manually executed counterpart hereof.

[Remainder of Page Intentionally Left Blank; Signature Pages Follow]


IN WITNESS WHEREOF, this Joinder has been executed as of the date first above written.

 

NEW OBLIGORS:
J.A. COSMETICS US, INC., a Delaware corporation
By:  

/s/ Frank Pisani

Name:   Frank Pisani
Title:   Chief Financial Officer
JA COSMETICS RETAIL, INC., a New York corporation
By:  

/s/ Frank Pisani

Name:   Frank Pisani
Title:   Chief Financial Officer
JA 741 RETAIL CORP., a New York corporation
By:  

/s/ Frank Pisani

Name:   Frank Pisani
Title:   Chief Financial Officer
JA 139 FULTON STREET CORP., a New York corporation
By:  

/s/ Frank Pisani

Name:   Frank Pisani
Title:   Chief Financial Officer


Acknowledged and accepted as of the

date first written above:

 

AGENT:
BANK OF MONTREAL,
as Administrative Agent
By:  

/s/ Tara Cuprisin

Name:   Tara Cuprisin
Its:   Director


JUNIOR AGENT:
U.S. BANK NATIONAL ASSOCIATION
By:  

/s/ Michael M. Hopkins

Name:   Michael M. Hopkins
Its:   Vice President


JUNIOR CREDITORS:
PENNANTPARK INVESTMENT CORPORATION
By:  

/s/ Arthur H. Penn

Name:   Arthur H. Penn
Title:   Chief Executive Officer
PENNANTPARK FLOATING RATE CAPITAL LTD.
By:  

/s/ Arthur H. Penn

Name:   Arthur H. Penn
Title:   Chief Executive Officer
PENNANTPARK CREDIT OPPORTUNITIES FUND, LP.
By:  

/s/ Arthur H. Penn

Name:   Arthur H. Penn
Title:   Managing Member of PennantPark Capital,
  LLC, the general partner of PennantPark Credit
  Opportunities Fund, Inc.


Acknowledged and accepted as of the date
first written above:
J.A. COSMETICS HOLDINGS, INC.
By:  

/s/ Frank Pisani

Name:   Frank Pisani
Its:   Vice President

Exhibit 10.10(a)

SUBORDINATION AND INTERCREDITOR AGREEMENT

THIS SUBORDINATION AND INTERCREDITOR AGREEMENT (this “ Agreement ”) is entered into as of this 31 st day of January, 2014 by and among BANK OF MONTREAL, as lender and as administrative agent (in its capacity as administrative agent, together with any successor thereto, “ Senior Agent ”) for the lenders from time to time party to the Senior Credit Agreement defined below (collectively with such lenders party to such Credit Agreement and any Credit Product Providers, as such term is defined in such Credit Agreement, “ Senior Lenders ”), U.S. BANK NATIONAL ASSOCIATION, as collateral agent (together with any successor thereto, the “ Junior Agent ”) for the lenders from time to time party to the Junior Credit Agreement defined below and each other holder of Junior Debt from time to time, PENNANTPARK INVESTMENT CORPORATION, PENNANTPARK FLOATING RATE CAPITAL LTD. and PENNANTPARK CREDIT OPPORTUNITIES FUND, LP, together with each of their successors or assigns from time to time party to the Junior Credit Agreement defined below and each other holder of Junior Debt from time to time (each a “ Junior Lender ” and, collectively, the “ Junior Lenders ”; the Junior Lenders and the Junior Agent are each sometimes referred to herein collectively as the “ Junior Creditors ” and each individually, as a “ Junior Creditor ”), and J.A. COSMETICS HOLDINGS, INC. a Delaware corporation (“ J.A. Holdings ” and collectively with each other Person who becomes a “ Borrower ” under the Senior Credit Agreement, “ Borrowers ”).

RECITALS

WHEREAS, Borrowers, certain other Obligors (as hereinafter defined) and certain Senior Lenders have entered into that certain Credit Agreement, dated as of even date herewith (as the same may be amended, supplemented or otherwise modified or restated from time to time as permitted hereunder, including without limitation amendments, modifications, supplements and restatements thereof giving effect to renewals, extensions, restructurings, refinancings, refundings or replacements of or to the arrangements provided in such Credit Agreement, whether provided by either or both of Senior Agent or any successor Senior Agent or other Senior Lenders, collectively the “ Senior Credit Agreement ”) pursuant to which, among other things, certain Senior Lenders have agreed to make, subject to the terms and conditions set forth in the Senior Credit Agreement, certain loans and financial accommodations to Borrowers in the aggregate principal amount of up to $125,000,000, comprised of a revolving credit facility in the principal amount of up to $20,000,000 (including letter of credit and swing line sub-lines), and a term loan facility in the aggregate principal amount of $105,000,000, which loans are secured by a first Lien on, and security interest in, the Collateral (as hereinafter defined);

WHEREAS, Borrowers, certain other Obligors, Junior Lenders and Junior Agent have entered into that certain Second Lien Credit Agreement, dated as of even date herewith (as the same may be amended, supplemented or otherwise modified or restated from time to time as permitted hereunder, the “ Junior Credit Agreement ”), pursuant to which, among other things, certain Junior Lenders have agreed to make, subject to the terms and conditions set forth in the Junior Credit Agreement, a term loan to Borrowers in the aggregate principal amount of $40,000,000, which loan is secured by a second Lien on, and security interest in, the Collateral and which loan is evidenced by notes dated as of the date hereof issued and delivered by the


Borrowers to Junior Lenders (collectively, as the same may be amended, supplemented or otherwise modified or restated from time to time, including any notes issued in exchange or substitution therefor, the “ Junior Notes ”);

WHEREAS, as one of the conditions precedent to the agreement of Senior Lenders to consummate the transactions contemplated by the Senior Credit Agreement, Senior Lenders have required the execution and delivery of this Agreement by Borrowers and the Junior Agent.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto hereby agree as follows:

SECTION 1

Definitions

The following terms shall have the following meanings in this agreement:

Affiliate ” of any Person shall mean (a) any other Person which, directly or indirectly, controls or is controlled by or is under common control with such Person and (b) any officer or director of such Person. A Person shall be deemed to be “controlled by” any other Person if such Person possesses, directly or indirectly, power to vote 10% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors or managers or power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

Bankruptcy Code ” shall mean 11 U.S.C. 101 et seq., as from time to time hereinafter amended, and any successor or similar statute.

Business Day ” shall mean any day (other than a Saturday or Sunday) on which banks are not authorized or required to close in Chicago, Illinois.

Capital Securities ” shall mean, with respect to any Person, all shares, interests, participations or other equivalents of such Person’s equity capital, including common shares, preferred shares, membership interests in a limited liability company, limited or general partnership interests in a partnership, interests in a trust, interests in other unincorporated organizations or any other equivalent of such ownership interest.

Collateral ” shall mean all assets and properties of any kind whatsoever, real or personal, tangible or intangible and wherever located, of any Obligor, whether now owned or hereafter acquired, upon which a Lien (including, without limitation, any Liens granted in any Insolvency Proceeding) is now or hereafter granted or purported to be granted by such Person in favor of a Secured Creditor, as security for all or any part of the Obligations.

Collateral Sale ” shall mean (a) any Disposition of Collateral so long as such Disposition is permitted under the Senior Credit Agreement or otherwise consented to by Required Lenders under the Senior Credit Agreement, (b) any Lien Enforcement Action by the Senior Agent or Senior Lenders against all or any portion of the Collateral in accordance with the

 

2


Senior Debt Documents and applicable law, or (c) after the occurrence and during the continuance of an Insolvency Proceeding by or against any Obligor, the sale of all or any portion of the Collateral pursuant to an order of the Bankruptcy Court having jurisdiction over such Insolvency Proceeding under Section 363 of the Bankruptcy Code.

Continuing ” means, with respect to any Default or Event of Default, that such Default or Event of Default has not been cured or waived.

Credit Product Arrangements ” shall have the meaning set forth in the Senior Credit Agreement as in effect on the date hereof.

Deferred Permitted Subordinated Debt Payment ” shall have the meaning set forth in Section 2.2 hereof.

DIP Financing ” shall have the meaning set forth in Section 2.3(d) .

DIP Liens ” shall have the meaning set forth in Section 2.3(d) .

Disposition ” shall mean any sale, lease, exchange, transfer or other disposition of any Collateral, and “Dispose” and “Disposed of” shall have correlative meanings.

Distribution ” means, with respect to any indebtedness, other obligation or security,

(a) any payment or distribution by any Person of cash, securities or other property, by set-off or otherwise, on account of or with respect to such indebtedness, obligation or security;

(b) any redemption, purchase or other acquisition of such indebtedness, obligation or security by any Person (other than a sale, assignment or transfer of Junior Debt in compliance with Section 13.2 ); or

(c) the granting of any lien or security interest to or for the benefit of the holders of such indebtedness, obligation or security in or upon any property of any Person.

Enforcement Action ” shall mean any action by any Junior Creditor to:

(a) demand or sue for, take or receive from or on behalf of any Obligor, by set-off or in any other exercise of remedies, the whole or any part of any monies which may now or hereafter be owing by Obligors to Junior Creditors with respect to the Junior Debt;

(b) sue, or to initiate or participate (other than in defense of its own interests) with others in any suit, action or proceeding against any Obligor to (i) enforce payment of or to collect the whole or any part of the Junior Debt or (ii) to commence judicial enforcement of any of the rights and remedies under the Junior Debt Documents or applicable law with respect to the Junior Debt Documents;

(c) ask, demand, take or receive any security for any of the Junior Debt other than Liens subject to and in accordance with this Agreement;

 

3


(d) commence or pursue any judicial, arbitral or other proceeding or legal action of any kind, seeking injunctive or other equitable relief to prohibit, limit or impair the commencement or pursuit by Senior Lenders of any of their rights or remedies under or in connection with the Senior Debt Documents or otherwise available to Senior Lenders under applicable law;

(e) accelerate any of the Junior Debt (except an automatic acceleration in connection with an Insolvency Proceeding or similar event of default in accordance with the Junior Debt Documents or applicable law); or

(f) file or join with any others in filing a petition to commence an involuntary Insolvency Proceeding against any Obligor under any bankruptcy law (including, without limitation, the Bankruptcy Code) with respect to the Junior Debt;

provided , however , that the term Enforcement Action shall not include:

(i) an exercise of rights and remedies for equitable relief against any Obligor for specific performance of the terms of the Junior Credit Agreement, in each case so long as such exercise is limited to compelling the performance of any covenant thereunder (other than with respect to Collateral Sales) and is not accompanied by a claim for monetary damages;

(ii) any suit or action initiated or maintained by a Junior Creditor to the extent such suit or action is necessary at such time to prevent the expiration of, any applicable statute of limitations or similar permanent restriction on claims ( provided that no money damages are received and retained in connection therewith except as expressly permitted by this Agreement);

(iii) sending a Junior Default Notice to any Obligor or the delivery of any reservation of rights letter or any similar document to any Person;

(iv) accruing interest on the Junior Debt at a default rate in accordance with the Junior Credit Agreement and this Agreement;

(v) filing any proof of claim or notice in an Insolvency Proceeding involving Junior Debt, in each case, not in violation of this Agreement;

(vi) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading objecting to or otherwise seeking the disallowance of the claims for any Junior Debt, so long as such filing is in accordance with, and in a manner that is consistent with, the terms of this Agreement;

(vii) voting any claim in respect of Junior Debt in an Insolvency Proceeding not in violation of this Agreement;

(viii) the receipt of any Permitted Subordinated Debt Payment otherwise permitted to be made hereunder;

(ix) a sale, assignment or transfer of Junior Debt in compliance with Section 13.2 ; and

(x) upon expiration of a Payment Blockage Period in accordance with Section 2.2 hereof and the failure of the Obligors to pay any Deferred Permitted Subordinated Debt Payment, any legal action taken by the Junior Creditors to enforce payment solely of such Deferred Permitted Subordinated Debt Payment.

 

4


Finally Paid ” or “ Final Payment ”, when used in connection with the Senior Debt, shall mean (a) the payment in full in cash or other consideration acceptable to each Senior Lender (or any combination thereof) of all of the Senior Debt (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted), (b) the termination of Senior Lenders’ obligations to make loans or other advances under the Senior Debt Documents but shall not include any payment in connection with a refinancing, refunding or replacement of any such Senior Debt and (c) all letters of credit issued under the Senior Debt Documents have been terminated, cash collateralized (in an amount equal to 104% of the face amount of such letters of credit or other manner acceptable to the Senior Agent) or backstopped by standby letters of credit (issued by a bank reasonably satisfactory to the Senior Agent and in form and substance reasonably satisfactory to the Senior Agent).

First Lien Avoidance ” shall have the meaning set forth in Section 2.3(g) .

Insolvency Proceedings ” shall mean any of the following:

(a) the filing by a Person of a voluntary petition in bankruptcy under any provision of any bankruptcy law (including, without limitation, the Bankruptcy Code) or a petition to take advantage of any receivership or insolvency laws, including, without limitation, any petition seeking the dissolution, winding up, total or partial liquidation, reorganization, composition, arrangement, adjustment or readjustment or other relief of such Person, such Person’s debts or such Person’s assets, or the appointment of a trustee, receiver, liquidator, custodian or similar official for such Person or a material part of such Person’s property;

(b) the appointment of a receiver, liquidator, trustee, custodian or other similar official for a Person or all or a material part of such Person’s assets;

(c) the filing of any petition against a Person under any bankruptcy law (including, without limitation, the Bankruptcy Code) or other receivership or insolvency law, including, without limitation, any petition seeking the dissolution, winding up, total or partial liquidation, reorganization, composition, arrangement, adjustment or readjustment or other relief of such Person, such Person’s debts or such Person’s assets or the appointment of a trustee, receiver, liquidator, custodian or similar official for such Person or a material part of such Person’s property;

(d) the general assignment by a Person for the benefit of creditors or any other marshalling of the assets and liabilities of such Person; or

(e) a corporate action taken by a Person to authorize any of the foregoing.

Junior Adequate Protection Liens ” shall have the meaning set forth in Section 2.3(e) .

 

5


Junior Debt ” shall mean all amounts now or hereafter owed by any Obligor to Junior Lenders under the Junior Debt Documents (including, without limitation, all indemnification and other reimbursement obligations of Obligors under the Junior Debt Documents).

Junior Debt Documents ” shall mean and include the Junior Notes, Junior Credit Agreement and all other documents, guaranties, instruments and agreements evidencing and/or securing the whole or any part of the Junior Debt, including any documents evidencing or securing any complete, partial or successive refunding, refinancing or replacement of the Junior Debt now outstanding and any amendments, modifications, renewals or extensions of any of the foregoing.

Junior Debt Final Maturity Date ” shall mean July 31, 2019.

Junior Default ” shall mean a default in the payment of the Junior Debt or in the performance of any term, covenant or condition contained in the Junior Debt Documents or any other occurrence permitting Junior Creditors to (with or without the giving of notice, the passage of time, or both) accelerate the payment of, put or cause the redemption of all or any portion of the Junior Debt or any Junior Debt Document.

Junior Default Notice ” shall mean a written notice from Borrowers or Junior Agent to Senior Agent and Borrowers pursuant to which Senior Agent is notified of the occurrence of a Junior Default, which notice incorporates a reasonably detailed description of such Junior Default provided that any notice of default sent to any Obligor from Junior Agent and simultaneously or subsequently sent to Senior Agent in accordance with Section 11 hereof will be considered a Junior Default Notice and satisfy all delivery requirements thereof, for all purposes under this Agreement (other than Section 2.4(b)(ii) with respect to which the delivery requirements shall only be satisfied when such notice is sent to Senior Agent in accordance with Section 11 hereof).

Junior Indemnification, Costs and Expenses ” shall mean amounts payable by any of the Obligors to (or for the benefit of) any Junior Creditor pursuant to (a) the indemnification and/or hold harmless obligations of the Junior Credit Agreement for any Losses (as defined in such Section 10.04(b) ), in each case, solely arising out of or in connection with any third party claims (or litigation, investigation, discovery or proceeding brought) against such Junior Creditor (other than to the extent such claim, litigation, discovery, investigation or proceeding is brought by Senior Agent, any Senior Lender, their respective Affiliates, or their respective successors or assigns, seeking to enforce the terms of this Agreement) or (b) the payment or reimbursement of fees (solely with respect to the Junior Agent) and out of pocket costs and expenses pursuant to the Junior Credit Agreement.

Lien ” shall mean (a) any judgment lien or execution, attachment, levy, distraint or similar legal process and (b) any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).

 

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Lien Enforcement Action ” shall mean (a) any action by any Secured Creditor to foreclose on the Lien of such Person in any Collateral, (b) any action by any Secured Creditor to take possession of (other than taking “possession” (as such term is defined in the UCC) for the sole purpose of perfecting such Secured Party’s Lien on such Collateral), or sell or otherwise realize upon, or to exercise any other rights or remedies with respect to, any Collateral, including any Disposition after the occurrence of a Senior Default or Junior Default of any Collateral by an Obligor with the consent of, or at the direction of, the applicable Secured Party, and/or (c) the taking of any other actions by a Secured Creditor against any Collateral, including the taking of control or possession of (other than taking “control” or “possession” (as such terms are defined in the UCC) for the sole purpose of perfecting such Secured Party’s Lien on such Collateral), or the exercise of any right of setoff with respect to, any Collateral.

Obligations ” shall mean the Senior Debt and the Junior Debt, or either of the Senior Debt or the Junior Debt.

Obligors ” shall mean J.A. Holdings, each Borrower and any existing and future Domestic Subsidiary (other than, for the avoidance of doubt, any Excluded Domestic Subsidiary) (as each such term is defined in the Senior Credit Agreement) of J.A. Holdings that is required to be a guarantor in accordance with the Senior Credit Agreement.

Payment Blockage Period ” shall mean the period which:

(a) begins upon a Senior Payment Default and ends on the earliest to occur of (i) the date on which such Senior Payment Default is waived or cured, or the Payment Blockage Period shall have been terminated by written notice from Senior Agent to Junior Agent and Borrowers, (ii) the date on which all of the Senior Debt has been Finally Paid, and (iii) the commencement of an Insolvency Proceeding by or against the Borrowers or any other Obligor; or

(b) begins on the date that a Senior Default Notice which states that it is a Senior Default Notice being delivered pursuant to Section 2.2 hereof is given to Junior Creditors in accordance with Section 11 hereof and ends on the earliest to occur of:

(i) the date on which such Senior Non-Payment Default is waived or cured or the Payment Blockage Period shall have been terminated by written notice from Senior Agent to Junior Agent and Borrowers;

(ii) the date on which all of the Senior Debt has been Finally Paid;

(iii) the commencement of an Insolvency Proceeding by or against Borrowers or any other Obligor, in which case the provisions of Section 2.3 hereof shall apply; and

(iv) one hundred eighty (180) days after the date on which such notice to Junior Creditors is given.

Permitted Junior Debt Refinancing ” shall mean any refinancing of Junior Debt under the Junior Debt Documents in accordance with the terms of this Agreement; provided , that (a) the financing documentation entered into by the Obligors in connection with such Permitted

 

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Junior Debt Refinancing constitutes Permitted Refinancing Junior Debt Documents and (b) all obligations, liabilities, indebtedness and Liens, if any, arising under or evidenced by such Permitted Refinancing Junior Debt Documents are subordinated to the Senior Debt, and the Liens securing the Senior Debt, on substantially the same terms as this Agreement or as otherwise agreed in writing with the Senior Agent.

Permitted Refinancing Junior Debt Documents ” shall mean any financing documentation which replaces in whole or in part the then existing Junior Debt Documents and pursuant to which the Junior Debt under the Junior Debt Documents is refinanced (and for the avoidance of doubt, including, without limitation, all agreements, documents and instruments providing for, guaranteeing or evidencing any such Junior Debt, and any other document or instrument executed or delivered at any time in connection with, evidencing or pertaining to any such Junior Debt), as such financing documentation may be amended, supplemented or otherwise modified or restated from time to time as permitted under the Senior Debt Documents and hereunder, but specifically excluding any such financing documentation that contains, either initially or by amendment or other modification, any terms, conditions, covenants or defaults other than those which (a) exist in the Junior Debt Documents as of the date hereof or (b) could be included in the Junior Debt Documents by an amendment or other modification that would not be prohibited by the terms of this Agreement.

Permitted Judgment Liens ” shall have the meaning set forth in Section 3.1 hereof.

Permitted Refinancing ” shall mean any refinancing of the Senior Debt under the Senior Debt Documents in accordance with the terms of this Agreement; provided , that the financing documentation entered into by Obligors in connection with such Permitted Refinancing constitutes Permitted Refinancing Senior Debt Documents.

Permitted Refinancing Senior Debt Documents ” shall mean any financing documentation which replaces in whole or in part the then existing Senior Debt Documents and pursuant to which the Senior Debt under the Senior Debt Documents is refinanced, as such financing documentation may be amended, supplemented or otherwise modified or restated from time to time as permitted hereunder, but specifically excluding any such financing documentation that contains, either initially or by amendment or other modification, any terms, conditions, covenants or defaults other than those which (a) exist in the Senior Debt Documents as of the date hereof or (b) could be included in the Senior Debt Documents by an amendment or other modification that would not be prohibited by the terms of this Agreement.

Permitted Subordinated Debt Payments ” shall mean

(a) subject to the limitations set forth in Section 3.1(a)(ii), regularly scheduled payments of interest in respect of the Junior Debt at the non-default rate, as and when required to be paid in cash as expressly provided for in the Junior Credit Agreement;

(b) PIK Payments;

(c) Reorganization Subordinated Securities;

 

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(d) payment of closing fees and expenses on the date hereof to the Junior Creditors in respect of the Junior Debt;

(e) payments made in accordance with Section 7.11(a)(ii) of the Senior Credit Agreement or any comparable provision of any Permitted Refinancing Senior Debt Document;

(f) Junior Indemnification, Costs and Expenses;

(g) the payment of the entire amount (or any part) of Junior Debt on July 31, 2019 (being the final stated maturity date of the Junior Debt) or such later date as the Junior Creditors and the Obligors may expressly agree in writing and otherwise in accordance with the terms of the Junior Credit Agreement;

(h) fees in consideration for any amendment, consent, waiver or forbearance (to the extent (i) customary and not in excess of generally prevailing market rates at such time for transactions under similar circumstances or (ii) with the prior written consent of the Senior Agent);

(i) accrual (but not payment) of additional interest due to the imposition of a default rate of interest (which may be made as a PIK Payment);

(j) payment of the Junior Debt in accordance with Section 8.02 of the Junior Credit Agreement as in effect on the date hereof upon or following, and due to, the occurrence of a Change of Control (as defined in the Junior Debt Documents as in effect on the date hereof), as to which Senior Agent shall have consented in writing;

(k) payments in connection with a Permitted Junior Debt Refinancing;

(l) Deferred Permitted Subordinated Debt Payments expressly permitted by Section 2.2 ; and

(m) prepayments of the Junior Debt, solely at the option of the Borrowers, and solely to the extent (i) the amount of any such prepayment does not exceed the amount of any mandatory prepayment under the Senior Credit Agreement then required to be made by the Borrowers that was expressly declined by a Senior Lender pursuant to, and in accordance with, the Senior Credit Agreement and (ii) any such prepayment is made within thirty (30) days of the date that the applicable mandatory prepayment under the Senior Credit Agreement was expressly declined by such Senior Lender.

Permitted Subordinated Lien ” shall mean Liens on Collateral in which Senior Agent shall have been granted or purported to be granted a first priority Lien, which Liens (and rights and obligations with respect thereto) shall be subject and subordinate to the Liens of Senior Agent on the terms and in the manner set forth herein.

Person ” shall mean an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization or any other entity or organization, including a government or agency or political subdivision thereof.

 

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PIK Payments ” shall mean payments (other than in connection with an Insolvency Proceeding) in the form of additional Junior Notes (or an increase in the principal amount of existing Junior Debt) (a) in lieu of regularly scheduled cash payments of interest or (b) in respect of any increase in the rate of interest payable in kind to the extent such increase is permitted hereunder, in each instance in (a) and (b), that are subordinate and junior in right of payment to the Senior Debt to at least the same extent as the Junior Debt. For the avoidance of doubt, all PIK Payments shall constitute Junior Debt hereunder.

Pledged Collateral ” shall mean, as the context may require, (a) any Collateral in the physical possession of the Senior Agent, any Senior Lender or their respective agents, to the extent that possession thereof is required to perfect a Lien thereon under the UCC, and (b) any other Collateral (such as motor vehicles) with respect to which a secured party must be listed on a certificate of title in order to perfect a Lien thereon.

Release Documents ” shall have the meaning set forth in Section 6(f) .

Reorganization Subordinated Securities ” shall mean, except to the extent otherwise expressly agreed in advance in writing by the Senior Agent, any notes or other debt or equity securities issued in substitution or exchange of, or otherwise forming a part of a Distribution in respect of, all or any portion of the Junior Debt that (a) in the case of notes or other debt securities (i) are contractually subordinated, including in right of payment, to the Senior Debt (or any notes or other securities issued in substitution of all or any portion of the Senior Debt) at least to the same extent that the Junior Debt is subordinated to the Senior Debt pursuant to the terms of this Agreement, and (ii) otherwise provide rights and remedies to the Senior Lenders and any agent therefor comparable to those afforded to Senior Agent and the other Senior Lenders under this Agreement (including, without limitation, the rights and remedies of the type described in Section 2.5 hereof) and (b) in the case of equity securities are Restructure Securities, and which securities have, in each case of (a) and (b) above, maturities and other terms no less advantageous to Obligors and the Senior Lenders than the terms contained in the Senior Debt Documents, do not have the benefit of any obligation of any Person (whether as issuer, guarantor or otherwise) unless the Senior Debt has at least the same benefit of the obligation of such Person, and which could be included in the Junior Debt Documents by an amendment or other modification that would not be prohibited by the terms of this Agreement.

Required Lenders ” shall have the meaning ascribed to such term in the Senior Credit Agreement; provided , that after the consummation of any Permitted Refinancing, the term “Required Lenders” shall mean the Lenders having the right and/or ability under the Permitted Refinancing Senior Debt Documents to effectuate the waiver, amendment, granting of consent or other matter in question.

Restructure Securities ” shall mean any Capital Securities of (a) J.A. Holdings, (b) any direct or indirect parent of J.A. Holdings or (c) any other Person consented to by Required Lenders (including consent by approving by the requisite majorities any plan of reorganization, composition, arrangement or similar plan providing for such issuance), in each instance in (a), (b) and (c), which do not contain mandatory redemption payment obligations or require dividend payments or Distributions (other than dividends paid in kind) until Final Payment of all Senior Debt (or any notes or other securities issued in substitution of all or any portion of Senior Debt).

 

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Secured Creditors ” shall mean the Senior Lenders and the Junior Creditors, or any of Senior Lenders or the Junior Creditors, as applicable.

Senior Adequate Protection Liens ” shall have the meaning set forth in Section 2.3(d) .

Senior Debt ” shall mean all obligations, liabilities and indebtedness of every nature of any Borrower or any other Obligor from time to time owed to Senior Agent or any Senior Lender under the Senior Debt Documents, including any Permitted Refinancing, and all indebtedness or other liabilities arising under or out of Credit Product Arrangements (as defined in the Senior Credit Agreement) that are secured by the Collateral under the Senior Debt Documents, including, without limitation, the principal amount of all debts, claims and indebtedness, accrued and unpaid interest and all fees, costs and expenses, whether primary, secondary, direct, contingent, fixed or otherwise, heretofore, now and from time to time hereafter owing, due or payable, whether before or after the commencement of an Insolvency Proceeding together with (a) any amendments, modifications, renewals or extensions thereof to the extent not prohibited by the terms of this Agreement and (b) any interest accruing thereon after the commencement of an Insolvency Proceeding, without regard to whether or not such interest is an allowed claim; provided , however , that in no event shall the principal amount of the Senior Debt exceed the sum of:

(i) the principal amount of the loans and any unfunded loan commitments under the Senior Credit Agreement as in effect on the date hereof reduced by the amount of any prepayments and repayments and commitment reductions under the Senior Credit Agreement to the extent that such repayments and reductions may not be reborrowed (specifically excluding, however, any such prepayments and repayments and commitment reductions occurring in connection with any Permitted Refinancing), plus

(ii) all indebtedness or other liabilities arising under or out of Credit Product Arrangements, plus

(iii) interest, fees and expenses that are capitalized (including, in the event of an Insolvency Proceeding, any and all post-petition interest and costs from and after the date of filing of a petition by or against any Obligor or its bankruptcy estate, whether or not such amounts are allowed as a claim enforceable against such Obligor in any Proceeding, and any other interest that would have accrued but for the commencement of such Proceeding), plus

(iv) 120% of the aggregate principal amount of all Increases (as defined in the Senior Credit Agreement), such Increases not to exceed $20,000,000 in the aggregate, consummated after the date hereof pursuant to Section 2.18 of the Senior Credit Agreement, plus

(v) $25,000,000.

Senior Debt shall be considered to be outstanding whenever any loan commitment under the Senior Debt Document is outstanding.

 

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Senior Debt Documents ” shall mean the collective reference to the Senior Credit Agreement and Permitted Refinancing Senior Debt Documents, and all notes, security documents, guaranties and other agreements or instruments executed by any Borrower or any other Obligor in connection therewith, including such documents evidencing successive Permitted Refinancings of the Senior Debt, together with any amendments, modifications or supplements to, or restatements or Permitted Refinancings of, each of the foregoing.

Senior Default ” shall mean any Senior Non-Payment Default or any Senior Payment Default under the Senior Debt Documents.

Senior Default Notice ” shall mean a written notice from Senior Agent to Junior Agent pursuant to which Junior Agent is notified that a Senior Default is Continuing or would be created by the making of a payment in respect of the Junior Debt, which notice incorporates a reasonably detailed description of such Senior Default; provided that any notice of default sent to any Obligor from Senior Agent and simultaneously or subsequently sent to Junior Agent in accordance with Section 11 hereof will be considered a Senior Default Notice and satisfy all delivery requirements thereof, for all purposes under this Agreement (other than for purposes of a Payment Blockage Period and Section 2.2, in each case, with respect to which the delivery requirements shall only be satisfied when such a notice which states that it is a Senior Default Notice being delivered pursuant to Section 2.2 hereof is sent by Senior Agent to Junior Agent in accordance with Section 11 hereof).

Senior Non-Payment Default ” shall mean any (a) Default under Section 8.01(b)(ii) , (v) Default or Event of Default under Section 8.01(a) not constituting a Senior Payment Default or (c) Continuing Event of Default under any of the Senior Debt Documents not constituting a Senior Payment Default, or any condition or event that, after notice or lapse of time or both, would constitute such a Default or Event of Default if that condition or event were not cured or removed within any applicable grace or cure period set forth therein.

Senior Payment Default ” shall mean any Continuing Default or Event of Default under any of the Senior Debt Documents resulting from the failure of any Obligor to pay, on a timely basis, any (a) principal, interest or fees or (b) any other obligations in an aggregate amount (individually or together with all such other unpaid amounts) in excess of $50,000, under the Senior Debt Documents including, without limitation, any default in payment of Senior Debt after acceleration thereof.

Triggering Event ” shall mean the occurrence of any one of the following events:

(a) the acceleration of the Senior Debt;

(b) the commencement of an Insolvency Proceeding with respect to any Obligor;

(c) the termination in whole by the Senior Agent or Senior Lenders of the Revolving Credit Commitments (as defined in the Senior Credit Agreement (as in effect on the date hereof)) as a result of a Senior Payment Default or Senior Non-Payment Default (but specifically excluding, for the avoidance of doubt, the refusal of the Senior Lenders to fund revolving loans as a consequence of any such Senior Payment Default or Senior Non-Payment Default); or

(d) the initiation of any judicial foreclosure, suit or proceeding by Senior Agent upon all or a material portion of the Collateral of the Companies (but specifically excluding, for the avoidance of doubt, giving notice of exercise of control under any deposit account control agreements or initiating “sweeping mechanisms” under such deposit account control agreements or any related lock box agreements).

 

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UCC ” shall mean the Uniform Commercial Code of the State of New York or, if applicable, the Uniform Commercial Code of any other applicable jurisdiction and, if the applicable jurisdiction shall not have any Uniform Commercial Code, the Uniform Commercial Code as in effect from time to time in the State of New York.

Weighted Average Life to Maturity ” shall mean, at any date, the quotient obtained by dividing (a) the sum of the products of the number of years from the date of determination to the date of each successive scheduled principal payment of such Indebtedness multiplied by the amount of such payment, by (b) the sum of all such payments.

SECTION 2

Subordination

Section 2.1 Subordination . To the extent and in the manner hereinafter set forth in this Agreement, each Obligor signatory hereto (on behalf of itself and each other Obligor) and each Junior Creditor agrees that payment of the Junior Debt is expressly subordinated to the prior Final Payment of all Senior Debt. The subordination provisions herein set forth are made for the benefit of Senior Lenders, and Senior Lenders may proceed to enforce such provisions.

Section 2.2 Restriction on Payments . (a) Notwithstanding any provision of the Junior Debt Documents to the contrary, no Distribution with respect to the Junior Debt shall be made or received and retained by a Junior Creditor, and none of the Junior Creditors shall exercise any right of set-off or recoupment with respect to the Junior Debt, until the Senior Debt is Finally Paid; provided that the foregoing shall not restrict Permitted Subordinated Debt Payments when a Payment Blockage Period is not in effect. If a Payment Blockage Period is in effect, only the following Permitted Subordinated Debt Payments shall be permitted until the Senior Debt is Finally Paid: (i) PIK Payments, (ii) Reorganization Subordinated Securities, (iii) payment of closing fees and expenses on the date hereof to the Junior Creditors in respect of the Junior Debt, (iv) payment of the regular fees of the Junior Agent in an aggregate amount not to exceed $50,000 in any calendar year and (v) accrual (but not payment) of additional interest due to the imposition of a default rate of interest.

Upon the expiration of any Payment Blockage Period and so long as no other Payment Blockage Period is in effect, Borrowers and the other Obligors may make or resume making (and Junior Creditors may receive and retain) any and all Permitted Subordinated Debt Payments that would otherwise have been made but for such Payment Blockage Period (“ Deferred Permitted Subordinated Debt Payment ”).

 

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(b) Notwithstanding any provision of this Section 2.2 to the contrary:

(i) the aggregate number of days in any consecutive 360-day period during which Payment Blockage Periods may be in effect solely as a result of Senior Non-Payment Defaults shall be one hundred eighty (180) days;

(ii) a Senior Non-Payment Default that existed at or prior to the commencement of a Payment Blockage Period may not serve as the basis for the commencement of a subsequent Payment Blockage Period unless the same shall have ceased to exist for a period of at least sixty (60) days prior to the commencement of such subsequent Payment Blockage Period (it being understood that for purposes of this paragraph, breaches of the same financial covenant for consecutive periods shall constitute separate and distinct Senior Non-Payment Defaults);

(iii) no more than two (2) Senior Default Notices for Senior Non-Payment Defaults may be sent during any consecutive 360-day day period and no more than five (5) Senior Default Notices for Senior Non-Payment Defaults may be sent during the term of this Agreement;

(iv) the failure of the Borrowers to make any Distribution with respect to the Junior Debt by reason of the operation of this Section 2.2 shall not be construed as preventing the occurrence of a breach of the Junior Debt Documents or a Junior Default;

(v) this Section 2.2 shall not be deemed to prohibit (A) the accrual of interest on the Junior Debt, (B) PIK Payments, (C) the accrual of interest, fees, expenses, costs or other amounts pursuant to the Junior Debt Documents, or (D) the payment of closing fees and expenses to Junior Creditors in respect of the Junior Debt on the date hereof as a condition precedent to the incurrence of the Junior Debt pursuant to the Junior Debt Documents;

(vi) a Junior Creditor shall not be deemed to have accepted a Distribution prohibited by the terms of this Section 2.2 if such Junior Creditor complies with the terms of Section 2.5 with respect to such Distribution and, in any event, such Junior Creditor does not otherwise have actual knowledge that such Distribution was received at a time during which it was prohibited from being received by the terms of this Agreement; and

(vii) this Section 2.2 shall not be applicable when and to the extent Section 2.3 is applicable.

Section 2.3 Insolvency Proceedings; Reinstatement . (a) In the event of any Insolvency Proceeding involving any Borrower or any other Obligors,

(i) all Senior Debt first shall be Finally Paid before any Distribution of or with respect to the Junior Debt shall be made (other than Reorganization Subordinated Securities as set forth in Section 2.3(h) and Distributions under clause (f) of the definition of Permitted Subordinated Debt Payments as set forth in Section 2.3(e) );

 

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(ii) any Distribution payable or deliverable in respect of the Junior Debt (other than Reorganization Subordinated Securities as set forth in Section 2.3(h) ), shall be paid or delivered directly to Senior Agent for the benefit of Senior Lenders until all Senior Debt is Finally Paid, and each Junior Creditor irrevocably authorizes, empowers and directs Senior Agent and Senior Lenders to collect and receive every such Distribution;

(iii) each Junior Creditor agrees to execute and deliver to Senior Agent for the benefit of Senior Lenders or its representative all such further instruments reasonably requested by Senior Agent confirming the authorization referred to in the foregoing clause (ii),

(iv) each Junior Creditor irrevocably authorizes, empowers and directs any debtor, debtor in possession, receiver, trustee, liquidator, custodian, conservator or other Person having authority, to pay or otherwise deliver all such Distributions to Senior Agent,

(v) each Junior Creditor also irrevocably authorizes, empowers Senior Agent, in the name of such Junior Creditor, to demand, sue for, collect and receive any and all such Distributions for the benefit of Senior Lenders, for application to the Senior Debt in accordance with the Senior Debt Documents until all Senior Debt is Finally Paid, and

(vi) each Junior Creditor hereby agrees to execute, verify, deliver and file any proofs of claim in respect of the Junior Debt requested by Agent in connection with any such Insolvency Proceeding, irrevocably authorizes, empowers and appoints Senior Agent its agent and attorney-in-fact to execute, deliver and file proofs of claim in respect of the Junior Debt upon the failure of any Junior Creditor to do so prior to five (5) Business Days before the expiration of the time to file any such proof of claim; provided that Senior Agent shall have no obligation to execute and/or file any such proof of claim. Until the Senior Debt is Finally Paid, no Junior Creditor shall, without the consent of the Senior Agent, directly or indirectly propose, support or vote in favor of any plan of reorganization or similar dispositive restructuring plan in connection with a Insolvency Proceeding that provides for treatment of the Senior Lenders, the Senior Debt, the Junior Creditors or the Junior Debt in a manner that is otherwise inconsistent with the terms and conditions of subordination of the Junior Debt and the Liens securing the Junior Debt pursuant to this Agreement.

 

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(b) Notwithstanding the foregoing, each Junior Creditor shall retain the right, exclusively, in each case to the extent exercised in a manner not inconsistent with the terms of this Agreement, to:

(i) enforce any proofs of claim filed by it or filed on its behalf, in each case, in respect of the Junior Debt,

(ii) vote its claims in respect of the Junior Debt to accept or reject any plan of reorganization, composition, arrangement or liquidation in any Insolvency Proceeding,

(iii) take any action (not adverse to the priority status of the Liens on the Collateral securing the Senior Debt or the rights of the Senior Agent or any Senior Creditor) in order to create, perfect, preserve or protect its Lien on the Collateral, and

(iv) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Creditors, including any claims of the Junior Creditors secured by the Collateral.

Except as expressly set forth in this Section 2.3, the holders of Junior Debt shall not be deemed to have waived or relinquished any rights that they may have with respect to any claims or otherwise in connection with any Insolvency Proceeding, and each Junior Creditor retains its rights, to the extent not otherwise in contravention of any terms or provisions of this Agreement, to otherwise act in any Insolvency Proceeding in its capacity as a holder of Junior Debt or as an unsecured creditor as more fully provided under Section 2.3(l) hereof to the fullest extent provided by law. The Senior Debt shall continue to be treated as Senior Debt and the provisions of this Agreement shall continue to govern the relative rights and priorities of Senior Lenders and Junior Creditors even if all or part of the Liens securing such Senior Debt are subordinated, set aside, avoided or disallowed in connection with any such Insolvency Proceeding (or if all or part of the Senior Debt is subordinated, set aside, avoided or disallowed in connection with any such Insolvency Proceeding or if any interest accruing on the Senior Debt following the commencement of such Insolvency Proceeding is otherwise disallowed). To the extent that any Senior Lender receives payments on, or proceeds of the Collateral for, the Senior Debt which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law, or equitable cause, then, to the extent of such payment or proceeds received, the Senior Debt, or part thereof, intended to be satisfied shall be revived and continue in full force and effect as if such payments or proceeds had not been received by any such Senior Lender.

(c) Bankruptcy . This Agreement shall be applicable both before and after the filing of any petition by or against any Obligor under the Bankruptcy Code or any other Insolvency Proceeding and all converted or succeeding cases in respect thereof, and all references herein to any Obligor shall be deemed to apply to the trustee for such Obligor and such Obligor as a debtor-in-possession. The relative rights of the Senior Lenders and the Junior Creditors in respect of the Secured Obligations and of any Collateral or proceeds thereof shall continue after the filing of such petition on the same basis as prior to the date of such filing. This Agreement shall constitute a “subordination agreement” for the purposes of Section 510(a) of the Bankruptcy Code and shall be enforceable in any Insolvency Proceeding in accordance with its terms.

 

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(d) DIP Financing . Until the Senior Debt is Finally Paid, if any Obligor or Obligors shall become subject to an Insolvency Proceeding and such Obligor or Obligors as debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or Obligors) shall move for either approval of financing to be provided by one or more of the Senior Lenders (or to be provided by any other person or group of persons with the consent of the Senior Agent) under Section 364 of the Bankruptcy Code (“ DIP Financing ”) or the use of cash collateral with the consent of the Senior Agent under Section 363 of the Bankruptcy Code, the Junior Creditors agree as follows:

(i) adequate notice to Junior Creditors for such DIP Financing or use of cash collateral shall be deemed to have been given to the Junior Creditors if the Junior Agent receives notice in advance of the hearing to approve such DIP Financing or use of cash collateral on an interim basis and at least 8 Business Days in advance of the hearing to approve such DIP Financing or use of cash collateral on a final basis,

(ii) such DIP Financing (and any Senior Debt which arose prior to the Insolvency Proceeding) may be secured by Liens on all or a part of the assets of the Obligors which shall be superior in priority to the Liens on the assets of the Obligors held by any other Person,

(iii) the Junior Creditors will not request adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in Section 2.3(e) below,

(iv) the Junior Creditors will subordinate (and will be deemed hereunder to have subordinated) their Liens (A) to the Liens securing such DIP Financing (the “DIP Liens” ) on the same terms (but on a basis junior to the Liens of the Senior Lenders) as the Liens of the Senior Lenders are subordinated thereto (and such subordination will not alter in any manner the terms of this Agreement), (B) to any “replacement Liens” granted to the Senior Lenders as adequate protection of their interests in the Collateral (the “ Senior Adequate Protection Liens ”) and (C) to any “carve-out” agreed to by the Senior Agent or the other Senior Lenders and

(v) the Junior Creditors shall not contest or oppose in any manner any adequate protection provided to the Senior Lenders as adequate protection of their interests in the Collateral, any DIP Financing or any cash collateral use and shall be deemed to have waived any objections to such adequate protection, DIP Financing or cash collateral use, including, without limitation, any objection alleging Obligors’ failure to provide “adequate protection” of the interests of the Junior Creditors in the Collateral; provided , in each case, that the Junior Creditors may seek adequate protection as set forth in Section 2.3(e). Until the Senior Debt

 

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is Finally Paid, no Junior Creditor may, directly or indirectly, provide or propose or support any other Person in providing or proposing DIP Financing to any Obligor or Obligors (other than DIP financing supported by the Senior Agent), unless (1) the Senior Agent has provided written notice to the Junior Agent that each of the Senior Lenders has declined to provide any DIP Financing and the Senior Agent shall not have consented to any use, sale or lease of cash collateral, (2) within five (5) Business Days of the first-day hearing none of the Senior Lenders shall have proposed any DIP Financing and the Senior Agent shall not have consented to any use, sale or lease of cash collateral or (3) such DIP Financing provides for the Final Payment of the Senior Debt upon bankruptcy court approval of such DIP financing; provided , that (A) the aggregate principal amount of loans and letter of credit accommodations outstanding or available under any such DIP Financing (including unfunded commitments) does not exceed ten percent (10%) of the aggregate principal amount of the Junior Debt on the date hereof, (B) such DIP Financing does not require any Obligor to propose a specific plan of reorganization, (C) such DIP Financing is not secured by Liens equal or senior in priority to the Liens securing the Senior Debt or the Senior Adequate Protection Liens and does not afford the lenders thereunder a claim that is equal or senior in priority to any adequate protection claims of the Senior Lenders in respect of their interests in the Collateral, (D) such DIP Financing does not expressly require a sale, liquidation or disposition of all or any material portion of the Collateral, unless such sale, liquidation or disposition would upon consummation result in Final Payment of the Senior Debt, prior to a default under the DIP Financing, (E) such DIP Financing expressly provides that the claims arising thereunder may be paid under a plan of reorganization in any form having a value on the effective date of such plan equal to the allowed amount of such claims ( provided , that such DIP Financing may provide that the claims thereunder shall be paid in cash under a plan of reorganization on the effective date thereof if, as a condition precedent to such payment, the Senior Debt shall have been Finally Paid) and (F) the terms of the DIP Financing do not provide for any “roll up” of Junior Debt (which shall otherwise remain Junior Debt for purposes of this Agreement) or contain any other provision that is inconsistent with the terms of this Agreement, in each case, unless such DIP Financing provides for the Final Payment of the Senior Debt upon bankruptcy court approval of such DIP Financing.

(e) Adequate Protection . In any Insolvency Proceeding, if the Senior Lenders (or any subset thereof) are granted adequate protection in the form of Senior Adequate Protection Liens, the Junior Creditors may seek adequate protection of their interests in the Collateral in the form of a replacement Lien on the Collateral and any additional collateral subject to the Senior Adequate Protection Liens (the “ Junior Adequate Protection Liens” ), which Junior Adequate Protection Liens, if granted, will be subordinate to all Liens securing the Senior Debt (including, without limitation, the Senior Adequate Protection Liens and any “carve-out” agreed to by the Senior Agent or the other Senior Lenders) and any Liens securing any DIP Financing on the same basis as the other Liens securing the Junior Debt are so subordinated under this Agreement

 

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(provided that any failure of the Junior Creditors to obtain such Junior Adequate Protection Liens shall not impair or otherwise affect the agreements, undertakings and consents of the Junior Creditors pursuant to Section 2.3(d )). The Junior Creditors may not seek adequate protection payments in any Insolvency Proceeding without the prior written consent of the Senior Agent, and the Senior Lenders may oppose any adequate protection payments proposed to be made by any Obligor to the Junior Creditors; provided, however, the Junior Creditors may seek Distributions under clause (f) of the definition of Permitted Subordinated Debt Payments in an aggregate amount not to exceed $250,000 in any trailing twelve month period (which trailing twelve month period may include periods occurring prior to an Insolvency Proceeding) ending on and including the date on which any such Distribution is being sought by the Junior Creditors. Furthermore, in the event that any Junior Creditor actually receives any adequate protection payments in any Insolvency Proceeding other than with the prior written consent of the Senior Agent, the same shall be segregated and held in trust and promptly paid over to the Senior Agent, for the benefit of the Senior Lenders, in the same form as received, with any necessary endorsements, and each Junior Creditor hereby authorizes the Senior Agent to make any such endorsements as agent for the Junior Agent and the Junior Creditors (which authorization, being coupled with an interest, is irrevocable) to be held and/or applied by Senior Agent in accordance with the terms of the Senior Debt Documents until of all Senior Debt is Finally Paid before any of the same shall be made to one or more of the Junior Creditors, and each Junior Creditor irrevocably authorizes, empowers and directs any debtor, debtor in possession, receiver, trustee, liquidator, custodian, conservator or other Person having authority, to pay or otherwise deliver all such payments to the Senior Agent.

(f) Sale of Collateral; Waivers . The Junior Creditors agree that they will not object to or oppose, and will be deemed to have consented pursuant to Section 363(f) of the Bankruptcy Code to, a Disposition of any Collateral securing the Senior Debt (or any portion thereof) free and clear of Liens or other claims under Section 363 of the Bankruptcy Code or any other provision of the Bankruptcy Code, if the Senior Lenders have consented to such or Disposition of such assets; provided , that the Liens securing the Senior Debt and the Junior Debt attach to the proceeds of any such Disposition in accordance with the priorities and terms set forth in this Agreement; provided , that the Junior Creditors shall have the right to credit bid the Junior Debt pursuant to section 363(k) of the Bankruptcy Code so long as such credit bid provides for the Final Payment of the Senior Debt upon the consummation of such bid; provided , that the Junior Agent and the Junior Creditors may raise any objections to any such Disposition of such Collateral that could be raised by any creditor of the Obligors whose claims were not secured by any Liens on such Collateral; and, provided , further, that such objections are not inconsistent with any other term or provision of this Agreement and are not based on the status of the Junior Agent or the Junior Creditors as secured creditors (without limiting the foregoing, neither the Junior Agent nor the Junior Creditors may raise any objections based on rights afforded by Sections 363(e) or (f) of the Bankruptcy Code to secured creditors (or by any comparable provision of any bankruptcy or insolvency law)) with respect to the Liens granted to the Junior Agent. The Junior Agent and the Junior Creditors agree not to initiate or prosecute or join with any other Person to initiate or prosecute any claim, action or other proceeding:

(i) challenging the enforceability of the Senior Lenders’ claims as fully secured claims with respect to all or part of the Senior Debt or for allowance of any Senior Debt (including those consisting of post-petition interest, fees or expenses) or opposing any action by the Senior Agent or the Senior Lenders to enforce their rights or remedies arising under the Senior Debt Documents and applicable law (including pursuant to a credit bid) in a manner which is not prohibited by the terms of this Agreement, in each case, except as directly necessary to enforce the terms of this Agreement,

 

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(ii) challenging the enforceability, validity, priority or perfected status of any Liens on assets securing the Senior Debt under the Senior Debt Documents, in each case, except as directly necessary to enforce the terms of this Agreement,

(iii) asserting any claims which the Obligors may hold with respect to the Senior Lenders,

(iv) seeking to lift the automatic stay to the extent that such action is opposed by the Senior Agent, unless such action to lift the automatic stay is to the extent the Senior Creditors have requested and obtained relief from the automatic stay, or

(v) opposing a motion by the Senior Agent to lift the automatic stay.

Except as directly necessary to enforce the terms of this Agreement, the Senior Agent and the Senior Creditors shall not initiate or prosecute or join with any other Person to initiate or prosecute any claim, action or other proceeding (i) challenging the enforceability of the Junior Lenders’ claims with respect to all or part of the Junior Debt or for allowance of any Junior Debt or opposing any action by the Junior Agent or the Junior Lenders to enforce their rights or remedies arising under the Junior Debt Documents and applicable law (including pursuant to a credit bid) in a manner which is not prohibited by the terms of this Agreement, (ii) challenging the enforceability, validity, priority or perfected status of any Liens on assets securing the Junior Debt under the Junior Debt Documents, or (iii) asserting any claims which the Obligors may hold with respect to the Junior Lenders.

(g) Invalidated Payments . To the extent that the Senior Lenders receive payments on the Senior Debt or proceeds of Collateral for application to the Senior Debt which are subsequently invalidated, avoided, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under the Bankruptcy Code or any other bankruptcy or insolvency law, common law, equitable cause or otherwise (and whether as a result of any demand, settlement, litigation or otherwise), then to the extent of such payment or proceeds received and returned to or recovered by such trustee, receiver or other party (each a “ First Lien Avoidance ”), such

 

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First Lien Avoidance, or part thereof, intended to be satisfied by such payment or proceeds shall be revived and continue in full force and effect as if such payments or proceeds had not been received by the Senior Lenders, and this Agreement, if theretofore terminated, shall be reinstated in full force and effect as of the date of such First Lien Avoidance, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the Lien priorities and the relative rights and obligations of the Senior Lenders and the Junior Creditors provided for herein with respect to any event occurring on or after the date of such First Lien Avoidance. Upon any such reinstatement of such Obligations, each Junior Creditor will deliver to the Senior Agent any payment or proceeds received by them between the date the Senior Lenders received the payments or proceeds that are the subject of said First Lien Avoidance and repayment of the First Lien Avoidance. The Junior Creditors agree that none of them shall be entitled to benefit from any First Lien Avoidance, whether by preference or otherwise, it being understood and agreed that the benefit of such First Lien Avoidance otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement.

(h) Reorganization Subordinated Securities . Nothing in this Agreement prohibits or limits the right of a Junior Creditor to receive and retain any Reorganization Subordinated Securities that are issued by a reorganized debtor pursuant to a plan of reorganization or similar dispositive restructuring plan in connection with an Insolvency Proceeding; provided that any Reorganization Subordinated Securities received prior to Final Payment of all Senior Debt by a Junior Creditor with respect to the Junior Debt that constitutes a distribution from or on account of the Collateral, an interest in Collateral or the value of Collateral, whether such distribution is made in respect of a “secured claim” within the meaning of Section 506(b) of the Bankruptcy Code or otherwise, will be paid over or otherwise transferred to the Senior Agent for application in accordance with this Agreement until the Final Payment of the Senior Debt, and for the avoidance of doubt, upon the Final Payment of the Senior Debt, any remaining Reorganization Subordinated Securities or proceeds thereof transferred to any Senior Creditor shall be returned to the Junior Agent for distribution in accordance with the Junior Debt Documents.

(i) Post-Petition Interest . Neither the Junior Agent nor any Junior Creditor shall oppose or seek to challenge any claim by the Senior Agent or any Senior Lender for allowance in any Insolvency Proceeding of Senior Debt consisting of post-petition interest (including at the default rate), fees or expenses that is in accordance with the Senior Debt Documents to the extent of the value of the Lien on the Collateral of the Senior Lenders, without regard to the existence of the Lien of the Junior Agent and the Junior Creditors. Neither the Senior Agent nor any other Senior Lender shall oppose or seek to challenge any claim by the Junior Agent or any other Junior Creditor for allowance in any Insolvency Proceeding of Junior Debt consisting of post-petition interest (including at the default rate), fees or expenses to the extent of the value of the Lien on the Collateral of the Junior Creditors (after taking into account the Lien of the Senior Lenders on the Collateral and the extent of the Senior Debt, including any post-petition interest, fees or expenses included in such Senior Debt).

 

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(j) Separate Grants of Security and Separate Classification . Each Junior Creditor acknowledges and agrees that (a) the grants of Liens pursuant to the Senior Debt Documents and the Junior Debt Documents constitute two separate and distinct grants of Liens and (b) because of their differing rights in the Collateral, the Junior Debt is fundamentally different from the Senior Debt and must be separately classified in any plan of reorganization proposed or adopted in an Insolvency Proceeding. The Junior Creditors shall not seek in any Insolvency Proceeding to be treated as part of the same class of creditors as the Senior Lenders and shall not oppose any pleading or motion by the Senior Lenders for the Senior Lenders and the Junior Creditors to be treated as separate classes of creditors. Notwithstanding the foregoing, if it is held that the Senior Debt and the Junior Debt constitute only one secured claim (rather than separate classes of senior and junior secured claims), then the Junior Creditors hereby acknowledge and agree that all Distributions shall be made as if there were separate classes of senior and junior secured claims against the Obligors in respect of the Collateral, with the effect being that, to the extent that the aggregate value of the Collateral exceeds the amount of the Senior Debt, the Senior Lenders shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of post-petition interest (whether or not allowed or allowable in said Insolvency Proceeding), and fees, costs and charges incurred subsequent to the commencement of the applicable Insolvency Proceeding incurred in accordance with the Senior Debt Documents before any Distribution is made in respect of any of the claims held by the Junior Creditors. The Junior Creditors hereby acknowledge and agree to turn over to the Senior Lenders amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of the preceding sentence, even if such turnover has the effect of reducing the claim or recovery of the Junior Creditors, until Final Payment of the Senior Debt.

(k) No Waiver . Nothing in this Section 2.3 limits a Senior Lender from objecting in an Insolvency Proceeding to any action taken by a Junior Creditor, including the Junior Creditor’s seeking adequate protection (other than adequate protection for the Junior Creditors expressly contemplated by Section 2.3(d) or (e) ), proposing any DIP Financing or asserting any of its rights and remedies under the Junior Debt Documents or otherwise.

(l) Waiver . The Junior Agent and the Junior Creditors waive (i) any claim they may now or hereafter have arising out of (a) the Senior Lenders’ election in any proceeding instituted under Chapter 11 of the Bankruptcy Code of the application of Section 1111(b) of the Bankruptcy Code, (b) any consent to use of cash collateral, or DIP Financing provided, by the Senior Agent or any Senior Lender in accordance with Section 2.3 or (c) any grant of security interest in the Collateral to the Senior Lenders in any Insolvency Proceeding in accordance with Section 2.3 or (ii) any claim against the Senior Lenders or their interests in the Collateral arising under Sections 506(c) or 552 of the Bankruptcy Code.

(m) Rights as Unsecured Creditors . In any Insolvency Proceeding, to the extent not prohibited by this Agreement, the Junior Creditors may take any action, file

 

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any pleading, appear in any proceeding, vote on any plan of reorganization and exercise rights and remedies as unsecured creditors. In any Insolvency Proceeding, the Senior Lenders may take any action, file any pleading, appear in any proceeding, vote on any plan of reorganization and exercise rights and remedies whether as unsecured creditors or otherwise.

Section 2.4 Forbearance of Legal Remedies .

(a) Nothing contained in this Agreement is intended to or shall:

(i) impair, as between Borrowers and the other Obligors, on the one hand, and their creditors other than Senior Creditors and Junior Creditors, on the other hand, the obligations of Borrowers and the other Obligors to Junior Lenders, which are absolute and unconditional, to pay the Junior Debt as and when the same shall become due and payable in accordance with its terms; or

(ii) affect the relative rights of Junior Creditors against Borrowers and the other Obligors; or

(iii) prevent Junior Creditors from exercising all remedies otherwise permitted by applicable law and the Junior Debt Documents or otherwise, subject to: (A) the rights under this Agreement of Senior Lenders, including, without limitation under Section 2.5 ; and (B) the provisions of Sections 2.2 , 2.3 and 2.4(b) hereof.

(b) Until Final Payment of all Senior Debt, Junior Creditors shall not, without the prior written consent of Senior Agent, take any Enforcement Action with respect to the Junior Debt, until the earliest to occur of the following:

(i) acceleration of the Senior Debt;

(ii) the passage of one hundred twenty (120) days from the delivery of a Junior Default Notice to Senior Agent if any Junior Default described therein shall not have been cured or waived within such period;

(iii) the commencement of Insolvency Proceeding by or against an Obligor;

(iv) the exercise by the Senior Agent of Lien Enforcement Actions against all or a substantial portion of the Collateral; or

(v) the stated final maturity of the Junior Debt (i.e., July 31, 2019, or such later date as the Junior Creditors and the Obligors may expressly agree in writing and otherwise in accordance with the terms of the Junior Credit Agreement).

 

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(c) Each Obligor hereby agrees that in the event that any holder of Junior Debt commences any Enforcement Action after the expiration of any remedy standstill period imposed pursuant to this Agreement, it will not assert, and hereby waives any right to assert, as a defense or otherwise, that such exercise of rights, remedies and/or enforcement actions by such holder are untimely or that such holder’s delay in commencing such Enforcement Action constitutes a waiver of any of its rights or remedies.

(d) Notwithstanding anything contained herein to the contrary, if following the acceleration of the Senior Debt by Senior Lenders such acceleration is rescinded (whether or not any existing Senior Default has been cured or waived), then all Enforcement Actions taken by any Junior Creditor shall likewise be rescinded if such Enforcement Action is based solely on clause (i) of Section 2.4(b) hereof; provided, however, that any such rescindment by such Junior Credit shall not toll the one hundred twenty (120) day standstill period for purposes of Section 2.4(b)(ii) .

(e) Notwithstanding anything herein to the contrary, in no event shall any Junior Creditor commence or take a Lien Enforcement Action prior to the Final Payment of the Senior Debt.

Section 2.5 Incorrect Payments . If any Distribution, including, without limitation, any proceeds of any Enforcement Action, on account of the Junior Debt not permitted to be made by an Obligor or received and retained by any Junior Creditor under this Agreement is received by any Junior Creditor such Distribution shall not be commingled with any asset of such Junior Creditor, shall be held in trust by such Junior Creditor for the benefit of Senior Lenders and shall be promptly paid over to Senior Agent, or its designated representative, for application to the payment of the Senior Debt then remaining unpaid, until all of the Senior Debt is Finally Paid; provided , however , any such Distribution received by any Junior Creditor may be retained by such Junior Creditor and the provisions of this Section 2.5 shall not apply if (a) such Junior Creditor does not receive written notice from any Obligor, the Senior Agent or any Senior Lender within ninety (90) days of receipt of such payment that such payment was received at a time during which it was prohibited to have been received by such Junior Creditor by the terms of this Agreement and (b) such Junior Creditor does not otherwise have actual knowledge that such payment has been received at a time during which it was prohibited from being received by the terms of this Agreement; provided, further, that delivery to Junior Agent in accordance with Section 11 hereof of a notice that a Payment Blockage Period is in effect due to the occurrence of a Senior Non-Payment Default shall be deemed to have satisfied all notice delivery requirements under this Section 2.5 .

Section 2.6 Annulment of Acceleration . In the event of a declaration of acceleration of the Junior Debt solely because an acceleration of Senior Debt, such declaration of acceleration shall be automatically annulled if (a) the holders of the Senior Debt which is the subject of such acceleration have rescinded their declaration of acceleration within sixty (60) days thereof and (b) no other Junior Default has occurred (and has not been cured or waived) during such sixty (60) day period which would have, in accordance with the provisions hereof, permitted the acceleration of such Junior Debt.

 

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Section 2.7 Required Language . Until this Agreement is terminated, each Junior Debt Document at all times shall contain the following legend:

“This instrument, the indebtedness and any other rights and obligations evidenced hereby are subordinate in the manner and to the extent set forth in that certain Subordination and Intercreditor Agreement (the “ Subordination Agreement ”) dated as of January 31, 2014 among Bank of Montreal and U.S. Bank National Association, and each holder of this instrument, by its acceptance hereof, shall be bound by the provisions of the Subordination Agreement.”

SECTION 3

Amendment of Loan Documents;

Permitted Refinancings

Section 3.1 Junior Debt Documents . Until the Senior Debt is Finally Paid, and notwithstanding anything contained in the Junior Debt Documents to the contrary, no Junior Creditor shall, without the prior written consent of Senior Agent, agree to any amendment, modification or supplement to the Junior Debt Documents, the effect of which is to:

(a) increase (i) the rate of interest payable in cash on any of the Junior Debt (excluding the imposition of a default rate of interest in accordance with the terms of the Junior Debt Documents) or (ii) the rate of interest payable in kind by more than 200 basis points per annum in excess of the rate payable in kind provided as of the date hereof, except to the extent (x) any such increase of the rate of interest payable in kind does not permit, or result in, any cash payment of interest in respect thereof in excess of two percent (2%) per annum and (y) no interest accrued in respect of such increase in the rate of interest payable in kind shall cause an increase in excess of two percent (2%) per annum in the amount of interest required or permitted to be paid in cash in respect of the Junior Debt;

(b) accelerate the dates upon which payments of principal or interest on the Junior Debt are due;

(c) add or make more burdensome in any respect, any event of default or any covenant with respect to the Junior Debt, except that in the event the events of default or covenants in the Senior Credit Agreement are changed or amended after the date hereof in a manner which is more restrictive on any Obligor, Junior Creditors shall be permitted to make changes and amendments with comparable cushions in the case of restricted amounts and on a proportional basis with respect to changes in the events of default or covenants in the Junior Credit Agreement;

(d) make more burdensome the redemption or prepayment provisions of the Junior Debt;

 

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(e) obtain any guarantee or other credit support for the Junior Debt from any Person who has not guaranteed the Senior Debt or take any Liens or security interests in any assets of an Obligor or any other assets securing Senior Debt other than judgment liens securing only Permitted Subordinated Debt Payments obtained pursuant to an Enforcement Action permitted hereunder (“ Permitted Judgment Liens ”) or Permitted Subordinated Liens; or

(f) impose any limitation on amendments or modifications of the Senior Debt Documents that is more restrictive than the limitations contained herein.

Section 3.2 Senior Debt Documents . Senior Lenders may at any time and from time to time without the consent of or notice to Junior Creditors, without incurring liability to Junior Creditors and without impairing or releasing the obligations of Junior Creditors under this Agreement, enter into one or more Permitted Refinancings, change the manner or place of payment or extend the time of payment of or renew or alter any of the terms of the Senior Debt, or amend or modify in any manner the Senior Debt Documents; provided , that Senior Lenders shall not amend or modify the Senior Debt Documents to:

(a) increase the principal amount of the Senior Debt (except as permitted by the definition of Senior Debt herein),

(b) increase the interest rate margins with respect to the Senior Debt by more than 300 basis points per annum, excluding the imposition of a default rate of interest in accordance with the terms of the Senior Debt Documents,

(c) extend the final maturity of the Senior Debt (as set forth in the Senior Debt Documents in effect on the date hereof) to a date after the final stated maturity date of the Junior Debt,

(d) shorten the Weighted Average Life to Maturity as of any time of measurement of any portion of the Senior Debt (as set forth in the Senior Debt Documents in effect on the date hereof) by more than six months,

(e) add any express prohibition on payment of the Junior Debt or amendments of the Junior Debt Documents that is more restrictive than those contained herein, or

(f) (i) remove, make less restrictive, waive or forbear with respect to any violation of any limitation on any assignment of Loans under the Senior Credit Agreement (or the corresponding provision of any Permitted Refinancing Senior Debt Document) to Affiliated Lenders or Debt Fund Affiliates (in each case, as defined in the Senior Credit Agreement in effect on the date hereof) or to an Obligor or any Affiliate thereof or (ii) remove, make less restrictive, waive or forbear with respect to any violation of any limitation on the right of any Affiliated Lender or Debt Fund Affiliate, as applicable, in its capacity as a Senior Lender, to consent to any amendment, modification, waiver, consent or other such action, require Senior Agent or any Senior Lender to undertake any action (or refrain from taking any action) or otherwise vote on any matter relating to any Senior Debt Document or Permitted Refinancing Senior Debt Document or in any Insolvency Proceeding.

 

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Section 3.3 Permitted Refinancings . If Senior Agent and/or Senior Lenders desire to undertake a Permitted Refinancing then for all purposes of this Agreement (a) the Senior Debt shall not be deemed to have been Finally Paid and (b) the agent under such new Senior Debt Documents shall be deemed to be Senior Agent for the purposes of this Agreement. Upon receipt of a notice of a Permitted Refinancing under the preceding sentence, Junior Creditors shall promptly enter into such documents and agreements (including amendments or supplements to this Agreement) as the new Senior Agent may reasonably request in order to confirm that the new Senior Agent has all rights and powers of Senior Agent set forth herein.

SECTION 4

Continued Effectiveness of this Agreement

The terms of this Agreement, the subordination effected hereby, and the rights and the obligations of Junior Creditors or Senior Lenders (or any subsequent holder of the Senior Debt) arising hereunder, shall not at any time or in any way be affected, modified, prejudiced, diminished or impaired by, nor shall any Junior Creditor be released by,

(a) any act or failure to act on the part of any Borrower or any other Obligor;

(b) any act or failure to act, which act or failure is in good faith, by Senior Agent or any Senior Lender;

(c) any act or failure to act by any other holder of the Senior Debt;

(d) any noncompliance by any Borrower or any other Obligor with the terms hereof, regardless of any knowledge thereof which any such holder may have or be otherwise charged with;

(e) any amendment or modification of or supplement to any of the Senior Debt Documents or any of the Junior Debt Documents;

(f) any release of any Liens or of any Person liable in any manner for the payment of the Senior Debt;

(g) the validity or enforceability of any of such documents;

(h) the exercise or the failure to exercise by Senior Agent or any Senior Lender of any rights or remedies conferred on it or them under the Senior Debt Documents, under this Agreement or existing at law or otherwise, or against any of the Collateral;

 

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(i) the commencement of an action at law or the recovery of a judgment at law against any Borrower or any other Obligor for the performance of the Senior Debt and the enforcement thereof through levy or execution or otherwise;

(j) the taking or institution or any Insolvency Proceeding or other action against any Borrower or any other Obligor; or

(k) any delay in taking, pursuing, or exercising any of the foregoing actions, rights, powers, or remedies (even though requested by a Junior Creditor) by the Senior Agent or any Senior Lender or anyone acting for Senior Lenders.

Without limiting the generality of the foregoing, Senior Lenders, from time to time, without prior notice to or the consent of any Junior Creditor, may take all or any of the following actions without in any manner affecting or impairing the obligation or liability of any Junior Creditor hereunder:

(i) obtain a Lien or a security interest in any property to secure any of the Senior Debt;

(ii) obtain the primary and secondary liability of any party or parties with respect to any of the Senior Debt;

(iii) release or compromise any liability of any nature of any person or entity with respect to the Senior Debt;

(iv) exchange, enforce, waive, release, and apply any of the Collateral and direct the order or manner of sale thereof as Senior Lenders may in their discretion determine;

(v) enforce their rights hereunder, whether or not Senior Lenders shall proceed against any other person or entity;

(vi) exercise their rights to consent to any action or non-action of any Borrower or any other Obligor which may violate the covenants and agreements contained in the Senior Debt Documents, with or without consideration, on such terms and conditions as may be acceptable to it; or

(vii) exercise any of their rights conferred by the Senior Debt Documents or by law. Each Junior Creditor hereby acknowledges that the provisions of this Agreement are intended to be enforceable at all times, whether before or after the commencement of a Insolvency Proceeding.

 

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SECTION 5

Default Notices

Borrowers shall, and Junior Agent shall use reasonable efforts to, provide Senior Agent with a Junior Default Notice upon knowledge of the occurrence of each Junior Default, and Junior Agent shall notify Senior Agent in the event that it has knowledge that such Junior Default has been cured or waived. Borrowers shall, and Senior Agent shall use reasonable efforts to, provide Junior Agent with a Senior Default Notice upon knowledge of the occurrence of each Senior Default, and Senior Agent shall notify Junior Agent in the event that it has knowledge that such Senior Default has been cured or waived.

SECTION 6

No Contest by Junior Creditors; Liens

(a) Each Junior Creditor agrees that it will not at any time contest, or initiate, prosecute or voluntarily participate in any claim, action or proceeding to contest or challenge, the validity, perfection, priority or enforceability of the Senior Debt, the Senior Debt Documents or the Liens securing the Senior Debt, unless otherwise expressly provided herein. Until the Senior Debt is Finally Paid, Junior Creditor shall not accept any security for the Junior Debt at any time from any Borrower or any other Obligor other than Permitted Judgment Liens and other than Permitted Subordinated Liens. Until the Senior Debt is Finally Paid, any Liens of the Junior Creditors in the Collateral which may exist in breach of each Junior Creditor’s agreement pursuant to this Agreement and all Permitted Judgment Liens shall be and hereby are subordinated for all purposes and in all respects to the Liens of Senior Agent and Senior Lenders in the Collateral, regardless of the time, manner or order of perfection of any such Liens, in the manner set forth herein. In the event that any Junior Creditor obtains any Liens in the Collateral in violation of this Agreement, Junior Creditors (i) shall (or shall cause their agent to) promptly execute and/or deliver to Senior Agent such documents, termination statements and releases as Senior Agent shall reasonably request to effect the subordination of such Liens to the Liens securing the Senior Debt or the release of such Liens of such Junior Creditor in such Collateral and (ii) shall be deemed to have authorized Senior Agent to file any and all termination statements required by Senior Agent in respect of such Liens upon the failure of Junior Creditors to do so. In furtherance of the foregoing, each Junior Creditor hereby irrevocably appoints Senior Agent as its attorney-in-fact, with full authority in the place and stead of such Junior Creditor and in the name of such Junior Creditor or otherwise, to execute and deliver any document or instrument which such Junior Creditor may be required, but fails to deliver pursuant to this Section 6 .

(b) Priorities . Each Secured Creditor hereby acknowledges that other Secured Creditors have been granted Liens upon the Collateral to secure their respective Obligations. The Liens granted, or purported to be granted, to the Senior Agent on the Collateral are and shall be senior and prior in right to the Liens of the Junior Agent on the Collateral, and such Liens of the Junior Agent on the Collateral are and shall be junior

 

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and subordinate to the Liens of the Senior Agent. The priorities of the Liens provided in this Section 6(b) shall not be altered or otherwise affected by any amendment, modification, supplement, extension, renewal, restatement, replacement or refinancing of any of the Obligations, nor by any action or inaction which any of the Secured Creditors may take or fail to take in respect of the Collateral.

(c) No Alteration of Priority . The priorities set forth in this Agreement are applicable irrespective of the order or time of attachment, or the order, time or manner of perfection, or the order or time of filing or recordation of any document or instrument, or other method of perfecting a Lien in favor of each Secured Creditor in any Collateral, and notwithstanding any conflicting terms or conditions which may be contained in any of the documents or any defect or deficiency in, or non-perfection, setting aside, recharacterization or avoidance of, any Lien granted or purported to be granted to Senior Agent or other Senior Lenders.

(d) Perfection . Each Secured Creditor shall be solely responsible for perfecting and maintaining the perfection of its Lien in the Collateral in which such Secured Creditor has been granted a Lien.

(e) Proceeds of Collateral . Prior to the Payment in Full of the Senior Debt, any Collateral or proceeds thereof received by any Junior Creditor including, without limitation, any such Collateral constituting proceeds, or any Distribution, that may be received by any Junior Creditor (i) in connection with the exercise of any right or remedy (including any right of setoff) with respect to the Collateral, (ii) in connection with any insurance policy claim or any condemnation award (or deed in lieu of condemnation), (iii) from the collection or other Disposition of, or realization on, the Collateral, whether or not pursuant to an Insolvency Proceeding or (iv) in violation of this Agreement, shall be segregated and held in trust and promptly paid over to the Senior Agent, for the benefit of the Senior Lenders, in the same form as received, with any necessary endorsements, and each Junior Creditor hereby authorizes the Senior Agent to make any such endorsements as agent for the Junior Agent (which authorization, being coupled with an interest, is irrevocable); provided , that the forgoing shall not prohibit the Junior Creditors from receiving Permitted Junior Debt Payments otherwise permitted to be received by the Junior Creditors in accordance with the terms of this Agreement.

(f) Release of Lien . The Junior Agent, on behalf of the Junior Creditors, shall at any time in connection with any Collateral Sale: (i) upon the request of the Senior Agent with respect to the Collateral subject to such Collateral Sale, release or otherwise terminate its Liens on such Collateral (and/or, in the case of a Collateral Sale consisting of the sale or disposition of Collateral constituting all of the equity interests of any Subsidiary Guarantor, release such Subsidiary Guarantor from its obligations under the relevant Documents); provided , that to the extent the Senior Agent or any Senior Lender retains a Lien on any proceeds of such Collateral or the Senior Debt is Finally Paid, the Junior Agent, on behalf of the Junior Creditors, may retain a Lien with respect to the proceeds of such Collateral (except on proceeds used to repay the Senior Debt) which is subordinated to the Lien retained by the Senior Agent or such Senior Lender if

 

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the Senior Debt has not been Finally Paid, and (ii) promptly deliver such terminations of financing statements, partial lien releases, mortgage satisfactions and discharges, endorsements, assignments or other instruments of transfer, termination or release (collectively, “ Release Documents ”) and take such further actions as the Senior Agent shall reasonably require in order to release and/or terminate such Junior Agent’s Liens on the Collateral (or release such Subsidiary Guarantor in accordance with the foregoing subsection (i)) subject to such Collateral Sale; provided , that if the closing of the Disposition of the Collateral is not consummated within 10 days from the proposed closing date or any agreement governing such Collateral Sale is terminated by any of the parties thereto, the Senior Agent shall, upon the Junior Agent’s request, promptly return all Release Documents to the Junior Agent.

(g) Power of Attorney . Until the Senior Debt is Finally Paid, each Junior Creditor hereby irrevocably constitutes and appoints the Senior Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of the Junior Creditors and in the name of the Junior Creditors or in the Senior Agent’s own name, from time to time in the Senior Agent’s discretion, solely for the purpose of carrying out the terms of Section 6(f) hereof, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of such Section, including any Release Documents, and, in addition, to take any and all other appropriate and commercially reasonable action for the purpose of carrying out the terms of such Sections, such power of attorney being coupled with an interest and irrevocable. The Junior Agent and the Junior Creditors hereby ratify all that said attorneys shall lawfully do or cause to be done pursuant to the power of attorney granted in this Section 6(g) . No Person to whom this power of attorney is presented as authority for the Senior Agent to take any action or actions contemplated hereby, shall be required to inquire into or seek confirmation from any Junior Creditor as to the authority of the Senior Agent to take any action described herein, or as to the existence or fulfillment of any condition to this power of attorney, which is intended to grant to the Senior Agent the authority to take and perform the actions contemplated herein. The Junior Creditors irrevocably waive any right to commence any suit or action, in law or equity, against any Person which acts in reliance upon or acknowledges the authority granted under this power of attorney.

(h) Waiver . Each of the Senior Agent, on behalf of each of the Senior Lenders, and the Junior Agent and the Junior Creditors, (i) waive any and all notice of the creation, renewal, extension or accrual of any of the Obligations under the Documents and notice of or proof of reliance by the Secured Creditors upon this Agreement and protest, demand for payment or notice except to the extent otherwise specified herein and (ii) acknowledge and agree that the other Secured Creditors have relied upon the Lien priority and other provisions hereof in entering into the Documents and in making funds available to the Borrowers thereunder.

(i) Notice of Interest In Collateral . This Agreement is intended, in part, to constitute an authenticated notification of a claim by each Secured Creditor to the other Secured Creditors of an interest in the Collateral in accordance with the provisions of Sections 9-611 and 9-621 of the UCC.

 

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(j) New Liens . (i) Prior to Final Payment of the Senior Debt, the parties hereto agree that no additional Liens shall be granted or permitted on any asset of any Obligor to secure Junior Debt unless, subject to the terms of this Agreement, immediately after giving effect to such grant or concurrently therewith, a senior and prior Lien shall be granted on such asset to secure the Senior Debt.

(ii) The parties hereto acknowledge and agree that it is their intention that documents, agreements and instruments creating or evidencing the Liens of such parties in the Collateral, shall be, in all material respects, substantively similar, other than with respect to the relative priority of the Liens created or evidenced thereunder.

(k) Management of Collateral . (i) Prior to the Final Payment of the Senior Debt, the Senior Lenders shall have the exclusive right to manage, perform and enforce the terms of the Senior Debt Documents with respect to the Collateral, to exercise and enforce all privileges and rights thereunder according to their sole discretion and the exercise of their sole business judgment, including the exclusive right to take or retake control or possession of the Collateral and to hold, prepare for sale, process, Dispose of, or liquidate the Collateral and to incur expenses in connection with such Disposition and to exercise all the rights and remedies of a secured lender under the UCC of any applicable jurisdiction, in each case in any lawful manner. In conducting any public or private sale under the UCC, the Senior Agent shall give the Junior Agent such notice (a “UCC Notice” ) of such sale as may be required by the applicable UCC; provided , however , that 10 days’ notice shall be deemed to be commercially reasonable notice.

(ii) The foregoing shall not be construed to limit or impair in any way the right of: (a) any Secured Creditor to bid for or purchase Collateral at any private or judicial foreclosure upon such Collateral, and (b) the Junior Agent to join (but not control) any foreclosure or other judicial lien enforcement proceeding with respect to the Collateral initiated by the Senior Agent for the sole purpose of protecting such Junior Agent’s Liens on the Collateral, so long as it does not delay or interfere with the exercise by the Senior Agent of its rights under this Agreement, the Documents and under applicable law.

(l) Waiver of Marshalling and Similar Rights . Each Secured Creditor, to the fullest extent permitted by applicable law, waives as to each other Secured Creditor any requirement regarding, and agrees not to demand, request, plead or otherwise claim the benefit of, any marshalling, appraisement, valuation or other similar right that may otherwise be available under applicable law.

(m) Insurance and Condemnation Awards . Prior to the Final Payment of the Senior Debt, the Senior Agent shall have the exclusive right, subject to the rights of the Obligors under the Senior Debt Documents, to settle and adjust claims in respect of Collateral under policies of insurance and to approve any award granted in any condemnation or similar proceeding, or any deed in lieu of condemnation, in respect of the Collateral.

 

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(n) Delivery and Possessory Collateral .

(i) The Senior Agent agrees to hold the Pledged Collateral that is in its possession or control (or in the possession or control of its agents or bailees) as collateral agent for the Senior Creditors and as gratuitous bailee for the Junior Agent (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee thereof solely for the purpose of perfecting the security interest granted under the Senior Debt Documents and the Junior Debt Documents, respectively, subject to the terms and conditions of this Section 6(n) . Solely with respect to any deposit accounts under the control (within the meaning of Section 9-104 of the UCC) of the Senior Agent, the Senior Agent agrees to also hold control over such deposit accounts as gratuitous agent for the Junior Agent, subject to the terms and conditions of this Section 6(n) .

(ii) The Senior Agent shall have no obligation whatsoever to any Junior Creditor to ensure that the Pledged Collateral is genuine or owned by any of the Obligors, to perfect the security interest of the Junior Creditors or to preserve rights or benefits of any Person except as expressly set forth in this Section 6(n) . The duties or responsibilities of the Senior Agent under this Section 6(n) shall be limited solely to holding the Pledged Collateral as bailee (and with respect to deposit accounts, agent) in accordance with this Section 6(n) and delivering the Pledged Collateral upon Final Payment of Senior Debt as provided in paragraph (iv) below.

(iii) None of the Senior Creditors shall have by reason of the Senior Debt Documents, the Junior Debt Documents, this Agreement or any other document a fiduciary relationship in respect of the Junior Creditors, and the Junior Creditors hereby waive and release the Senior Creditors from all claims and liabilities arising pursuant to the Senior Agent’s role under this Section 6(n) as gratuitous bailee and gratuitous agent with respect to the Pledged Collateral. It is understood and agreed that the interests of the Senior Creditors, on the one hand, and the Junior Creditors on the other hand, may differ and the Senior Creditors shall be fully entitled to act in their own interest without taking into account the interests of the Junior Creditors.

(iv) Upon the Final Payment of Senior Debt, the Senior Agent shall deliver the remaining Pledged Collateral in its possession (if any) to the Junior Agent in accordance with this Agreement. The Senior Agent further agrees to take all other action reasonably requested by the Junior Agent at the expense of the Junior Agent or the Obligors in connection with the Junior Agent obtaining a first-priority interest in the Collateral.

 

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SECTION 7

Cumulative Right, No Waivers;

Specific Performance

Each right, remedy and power granted to Secured Creditor hereunder shall be cumulative and in addition to any other right, remedy or power specifically granted herein, in the Senior Debt Documents or Junior Debt Documents (as applicable) or now or hereafter existing in equity, at law, by virtue of statute or otherwise, and may be exercised by Secured Creditor, from time to time, concurrently or independently and as often and in such order as Secured Creditor may deem expedient. Any failure or delay on the part of Secured Creditor in exercising any such right, remedy or power, or abandonment or discontinuance of steps to enforce the same, shall not operate as a waiver thereof or affect the rights of Secured Creditor thereafter to exercise the same, and any single or partial exercise of any such right, remedy or power shall not preclude any other or further exercise thereof or the exercise of any other right, remedy or power, and no such failure, delay, abandonment or single or partial exercise of the rights of Secured Creditor hereunder shall be deemed to establish a custom or course of dealing or performance among the parties hereto. At any time that any Junior Creditor fails to comply with any provision of this Agreement that is applicable to Junior Creditors, Senior Agent or any Senior Lender may demand specific performance of this Agreement, whether or not Borrowers have complied with this Agreement, and may exercise any other remedy available at law or equity.

SECTION 8

[RESERVED]

SECTION 9

Modification

Any modification or waiver of any provision of this Agreement shall not be effective in any event unless the same is in writing and signed by Senior Agent and each Junior Creditor, and then such modification, waiver or consent shall be effective only in the specific instance and for the specific purpose given. No modification or waiver of any provision of this Agreement which increases the obligations or reduces the rights of, or otherwise adversely affects any Borrower, any other Obligor, any of their Subsidiaries or properties (in each case, as determined in the reasonable judgment of Borrowers and Senior Agent) shall be effective (or, without limiting the foregoing, enforceable against any Borrower or any other Obligor) unless the same is in writing and signed by Borrowers, and then such modification or waiver shall be effective only in the specific instance and for the specific purpose given. Any notice to or demand on Junior Creditors or Senior Lenders in any event not specifically required of Senior Lenders or Junior Creditors hereunder shall not entitle Junior Creditors or Senior Lenders to any other or further notice or demand in the same, similar or other circumstances unless specifically required hereunder.

 

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SECTION 10

Additional Documents and Actions

Each Junior Creditor at any time, and from time to time, after the execution and delivery of this Agreement, upon the request of the Senior Agent and at the expense of the Obligors, promptly will execute and deliver such further documents and do such further acts and things as are necessary to give effect to this Agreement.

The Senior Agent, for itself and on behalf of each other Senior Creditors, the Junior Agent, the Junior Creditors, and the Obligors, each agree that it shall take such further action and shall execute and deliver such additional documents and instruments (in recordable form, if requested), solely at the Obligors’ expense, as the Senior Agent or the Junior Agent may reasonably request to effectuate the terms of and the Lien priorities contemplated by this Agreement.

SECTION 11

Notices

Unless otherwise specifically provided herein, any notice or other communication required or permitted to be given shall be in writing addressed to the respective party as set forth below and may be personally served, telecopied or sent by overnight courier service or United States mail certified or registered and shall be deemed to have been given (a) if delivered in person, when delivered; (b) if delivered by telecopy, on the date of transmission if transmitted on a Business Day before 4:00 p.m. (Chicago time) or, if not, on the next succeeding Business Day; (c) if delivered by overnight courier, one Business Day after delivery to such courier properly addressed; or (d) if by United States mail, four Business Days after deposit in the United States mail, postage prepaid and properly addressed.

Notices shall be addressed as follows:

If to the Junior Agent or the Junior Creditors:

U.S. Bank Global Corporate Trust Services

One Federal Street

Boston, Massachusetts 02110

Attention: ###, Corporate Trust Services

Telecopy: ###

With a copy to:

Latham & Watkins LLP

885 Third Avenue

New York, New York 10022

Attn: ###

Telecopy: ###

 

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With a copy to:

Shipman & Goodwin LLP

One Constitution Plaza

Hartford, Connecticut 06103

Attn: ###

Telecopy: ###

Telephone No.: ###

If to a Borrower, J.A. Holdings or the other Obligors:

J.A. Cosmetics US, Inc., as Borrower Agent

10 West 33 rd Street, Suite 802

New York, NY 10001

Attention: ###

Telecopy: ###

Telephone No.: ###

Email: ###

with a copy to

TPG Growth

345 California Street, Suite 3300

San Francisco, CA 94104

Attention: ###

Telecopy: ###

Telephone No.: ###

Email: ###

with a copy to

TPG Growth

345 California Street, Suite 3300

San Francisco, CA 94104

Attention: ###

Telecopy: ###

Telephone No.: ###

Email: ###

with a copy to

Kirkland & Ellis LLP

333 S. Hope Street

Los Angeles, CA 90071

Attn: ###

Telecopy: ###

 

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If to Senior Agent or any Senior Lender:

Bank of Montreal

111 W. Monroe Street, 20E

Chicago, Illinois 60603

Attn: ###

Telecopy: ###

with a copy to:

Katten Muchin Rosenman LLP

525 West Monroe Street

Chicago, Illinois 60661

Attn: ###

Telecopy: ###

or in any case, to such other address as the party addressed shall have previously designated by written notice to the serving party, given in accordance with this Section 11 . A notice not given as provided above shall, if it is in writing, be deemed given if and when actually received by the party to whom given.

SECTION 12

Severability

In the event that any provision of this Agreement is deemed to be invalid, illegal or unenforceable by reason of the operation of any law or by reason of the interpretation placed thereon by any court or governmental authority, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby, and the affected provision shall be modified to the minimum extent permitted by law so as most fully to achieve the intention of this Agreement.

SECTION 13

Successors and Assigns;

Sale, Transfer, Etc.

Section 13.1 This Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of Senior Lenders and Junior Creditors.

Section 13.2 Each Junior Lender warrants and represents to Senior Lenders that, as of the date of this Agreement, no party owns an interest in the Junior Debt other than Junior Lenders and that the entire Junior Debt is owing to Junior Lenders. None of the Junior Lenders

 

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shall sell, assign, pledge, dispose of or otherwise transfer all or any portion of the Junior Debt unless prior to the consummation of any such action, the transferee thereof shall have executed and delivered to Senior Agent a joinder to this Agreement in the form of Exhibit A attached hereto or an agreement substantially identical to this Agreement, providing for the continued subordination of the Junior Debt to the Senior Debt as provided herein and for the continued effectiveness of all of the rights of the Senior Agent and Senior Lenders arising under this Agreement; provided , that this Section 13.2 shall not be deemed to prohibit any collateral assignment, pledge or other encumbrance as long as the collateral assignee, pledgee or other encumbrance holder shall have expressly agreed that upon any conveyance of title pursuant to such collateral assignment, pledge or other encumbrance, the transferee of such title shall execute and deliver such joinder. Notwithstanding the failure to execute or deliver any such joinder, the subordination effected hereby shall survive any sale, assignment, pledge, disposition or other transfer of all or any portion of the Junior Debt, and the terms of this Agreement shall be binding upon the successors and assigns of any Junior Lender, as provided in Section 13.1 hereof.

SECTION 14

Representations and Warranties

Section 14.1 Representations and Warranties of Junior Creditors . Each Junior Creditor hereby severally represents and warrants to Senior Agent and Senior Lenders, as to itself, that as of the date hereof: (a) such Junior Creditor has the power and authority to enter into, execute, deliver and carry out the terms of this Agreement, all of which have been duly authorized by all proper and necessary action; (b) the execution of this Agreement by such Junior Creditor will not require any consent or approval which has not been obtained; and (c) this Agreement is the legal, valid and binding obligation of such Junior Creditor, enforceable against such Junior Creditor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by equitable principles.

Section 14.2 Representations and Warranties of Senior Agent . Senior Agent hereby represents and warrants to each Junior Creditor that as of the date hereof: (a) Senior Agent has the power and authority to enter into, execute, deliver and carry out the terms of this Agreement on behalf of the Senior Lenders, all of which have been duly authorized by all proper and necessary action; (b) the execution of this Agreement by Senior Agent will not require any consent or approval which has not been obtained; and (c) this Agreement is the legal, valid and binding obligation of Senior Agent, enforceable against Senior Agent in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles.

 

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SECTION 15

Subrogation

Upon Final Payment of all Senior Debt and until Final Payment of all Junior Debt, the Junior Creditors shall be subrogated to the rights of the Senior Creditors to receive Distributions with respect to the Senior Debt or any notes or other debt securities issued in substitution or exchange of, or otherwise forming a part of a Distribution in respect of, all or any portion of the Senior Debt, to the extent that Distributions otherwise payable to Junior Creditors have been applied to the payment of Senior Debt in accordance with the provisions of this Agreement. A Distribution applied to the payment of the Senior Debt in accordance with the provisions of this Agreement which otherwise would have been made to Junior Creditors shall not be deemed a payment by Obligors on the Junior Debt or any Reorganization Subordinated Securities, it being understood that nothing contained in this Agreement is intended to or shall impair, as between Obligors, any successors or any acquirors of their assets, on the one hand, and their creditors other than Senior Creditors and Junior Creditors, on the other hand, the obligation of Obligors, any successors or any acquirors of their assets, which is absolute and unconditional, to pay to Junior Creditors the Junior Debt or any Reorganization Subordinated Securities as and when the same shall become due and payable in accordance with its terms, to comply with all other terms of the Junior Debt Documents, or any Reorganization Subordinated Securities or to affect the relative rights of Junior Creditor and creditors of Obligors (or any successors or any acquirors of their assets) other than Senior Creditors.

SECTION 16

Counterparts

This Agreement may be executed in any number of counterparts, and by the different parties hereto on separate counterpart signature pages, and all such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of a counterpart signature page by facsimile transmission or by e-mail transmission of an Adobe portable document format file (also known as a “ PDF ” file) shall be effective as delivery of a manually executed counterpart signature page.

SECTION 17

Defines Rights of Creditors

The provisions of this Agreement are solely for the purpose of defining the relative rights of Junior Creditors and Senior Lenders and shall not be deemed to create any rights or priorities in favor of any other person, including, without limitation, the Borrowers or the other Obligors.

 

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SECTION 18

Conflict

In the event of any conflict between any term, covenant or condition of this Agreement and any term, covenant or condition of any of the Senior Debt Documents or the Junior Debt Documents, the provisions of this Agreement shall control and govern.

SECTION 19

Headings

Section headings used in this Agreement are for reference only and shall not affect the construction of this Agreement.

SECTION 20

Termination

This Agreement shall terminate upon the Final Payment of all Senior Debt; provided , that to the extent that any Senior Lender receives any payment of Senior Debt or any proceeds of any collateral securing the Senior Debt, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party, then, to the extent of such payment or proceeds are repaid to such trustee, receiver or other party, the Senior Debt, or part thereof intended to be satisfied and this Agreement shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by such party.

SECTION 21

APPLICABLE LAW

THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO PROVISIONS THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THAT OF THE STATE OF NEW YORK.

SECTION 22

CONSENT TO JURISDICTION AND SERVICE OF PROCESS

EACH OF THE JUNIOR CREDITORS, SENIOR AGENT, SENIOR LENDERS, BORROWERS, J.A. HOLDINGS, AND THE OTHER OBLIGORS HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN THE STATE OF NEW YORK AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT, SHALL BE LITIGATED IN SUCH COURTS. EACH OF THE JUNIOR CREDITORS, SENIOR AGENT, SENIOR

 

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LENDERS, BORROWERS, J.A. HOLDINGS AND THE OTHER OBLIGORS ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVE ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. EACH OF THE JUNIOR CREDITORS, SENIOR AGENT, SENIOR LENDERS, BORROWERS, J.A. HOLDINGS AND THE OTHER OBLIGORS IRREVOCABLY AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MAILED BY REGISTERED MAIL TO JUNIOR AGENT, SENIOR AGENT, SENIOR LENDERS, BORROWERS, J.A. HOLDINGS AND THE OTHER OBLIGORS AT THEIR RESPECTIVE ADDRESSES PROVIDED IN SECTION 11 HEREOF SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY JUNIOR CREDITORS, SENIOR AGENT, SENIOR LENDERS, BORROWERS, J.A. HOLDINGS AND THE OTHER OBLIGORS TO BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

SECTION 23

WAIVER OF JURY TRIAL

EACH OF THE JUNIOR CREDITORS, BORROWERS, J.A. HOLDINGS, THE OTHER OBLIGORS, SENIOR AGENT AND SENIOR LENDERS HEREBY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS AMONG THEM RELATING TO THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE JUNIOR CREDITORS, SENIOR AGENT, SENIOR LENDERS, BORROWERS, J.A. HOLDINGS AND THE OTHER OBLIGORS ALSO WAIVE ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF BORROWERS, J.A. HOLDINGS, THE OTHER OBLIGORS, SENIOR AGENT, SENIOR LENDERS, OR JUNIOR CREDITORS. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH OF THE JUNIOR CREDITORS, SENIOR AGENT, SENIOR LENDERS, BORROWERS, J.A. HOLDINGS AND THE OTHER OBLIGORS ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT SENIOR AGENT, SENIOR LENDERS AND JUNIOR CREDITORS HAVE ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT SENIOR AGENT, SENIOR LENDERS AND EACH JUNIOR CREDITOR WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH OF THE JUNIOR CREDITORS, SENIOR AGENT, SENIOR LENDERS, BORROWERS, J.A. HOLDINGS AND THE OTHER OBLIGORS FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS

 

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JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (UNLESS SUCH WRITING MAKES SPECIFIC REFERENCE TO THIS SECTION 23 ), AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

SECTION 24

Purchase Option

(a) Without prejudice to the enforcement of the remedies of Senior Agent and the other Senior Lenders, within five (5) Business Days after the date, if any, that Senior Agent delivers a written notice to Junior Agent that a Triggering Event exists, which it hereby agrees to do promptly upon obtaining knowledge of such Triggering Event, any one or more of the Junior Creditors (acting in their individual capacity or through one or more Affiliates) shall have the right, but not the obligation (each Junior Creditor having a ratable right to make the purchase, with each Junior Creditor’s right to purchase being automatically proportionately increased by the amount not purchased by another Junior Creditor), by giving a written notice (the “ Purchase Notice ”) to Senior Agent prior to the expiration of such five (5) Business Day period to acquire from the Senior Lenders all (but not less than all) of the right, title and interest of the Senior Lenders in and to all (but not less than all) of the Senior Debt and the Senior Debt Documents and to assume all obligations of such Senior Lenders (that are to be performed after the date of closing of such purchase option and are not in respect of events that occurred prior to such date). The Purchase Notice, if given, shall be irrevocable.

(b) On the date specified in the Purchase Notice (which shall not be less than three (3) Business Days nor more than ten (10) Business Days after the receipt by Senior Agent of the Purchase Notice), the Senior Lenders shall sell to the purchasing Junior Creditors and purchasing Junior Creditors shall purchase and assume from the Senior Lenders, all (but not less than all) of the Senior Debt (including any unfunded commitments and all other obligations (that are to be performed after the date of closing of such purchase option and are not in respect of events that occurred prior to such date) of the Senior Lenders under the Senior Debt Documents). Each Senior Creditor and each Obligor hereby irrevocably consents to each transfer or assignment contemplated by this Section 24 .

(c) On the date of such purchase and sale, purchasing Junior Creditors shall (i) pay to Senior Agent, for the benefit of the Senior Lenders, as the purchase price therefor the full amount of all the Senior Debt (including principal, interest, fees, LIBOR breakage or similar breakage amounts, and expenses, including reasonable attorneys’ fees and expenses, but excluding Senior Debt cash collateralized in accordance with clause (c)(ii) below) then outstanding and unpaid, (ii) furnish cash collateral to Senior Agent in such amounts in connection with (A) any L/C Obligations as are required under the

 

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Senior Credit Agreement and (B) Obligations arising under any Credit Product Arrangements as are reasonably requested by Senior Agent to the extent such Credit Product Arrangements are not terminated and the termination or similar payment is not included in the purchase price of the Senior Debt, and (iii) agree to acquire at par value the claims of the Senior Agent and the Senior Lenders for all substantiated and reasonable out-of-pocket expenses to the extent due and payable in accordance with the Senior Debt Documents (including the reimbursement of extraordinary expenses, financial examination expenses, and appraisal fees). Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of Senior Agent as Senior Agent may designate in writing to Junior Creditors for such purpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by purchasing Junior Agent to the bank account designated by Senior Agent are received in such bank account prior to 2:00 p.m., New York City time, and interest shall be calculated to and including such Business Day if the amounts so paid by purchasing Junior Creditors to the bank account designated by Senior Agent are received in such bank account later than 2:00 p.m., New York City time.

(d) Such purchase shall be expressly made without representation or warranty of any kind by Senior Agent and the Senior Lenders as to the Senior Debt so purchased or otherwise and without recourse to Senior Agent or any other Senior Lender, except that each Senior Lender shall represent and warrant: (i) that the amount quoted by such Senior Lender as its portion of the purchase price represents the amount shown as owing with respect to the claims transferred as reflected on its books and records, (ii) it owns, or has the right to transfer to purchasing Junior Creditors, the rights being transferred, and (iii) such transfer will be free and clear of Liens and claims.

(e) If the Junior Creditors fail to close the purchase within the required time period described above in Section 24(b) , Senior Agent and the Senior Lenders shall have no further obligations to the Junior Creditors under this Section 24 without limiting any rights or remedies Senior Agent or the Senior Lenders may have hereunder.

In the event that any one or more of Junior Creditors exercises and consummates the purchase option set forth in this Section 24 , (i) Senior Agent shall have the right, but not the obligation (unless required by clause (ii) below), to immediately resign as Senior Agent under the Senior Debt Documents, subject to an agreed upon transition period with respect to delivering possessory Collateral and assigning certain Senior Debt Documents (such as mortgages, intellectual property security agreements and deposit account control agreements) and financing statements necessary to maintain the continued perfection of the successor Senior Agent’s security interest in the Collateral not to exceed thirty (30) days, and (ii) purchasing Junior Creditors shall have the right, but not the obligation, to require Senior Agent to immediately resign as Senior Agent under the Senior Debt Documents.

[signature pages follow]

 

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OBLIGORS
J.A. COSMETICS HOLDINGS, INC. , as a Borrower
By:  

/s/ Frank Pisani

  Name:   Frank Pisani
  Title:   Vice President

Subordination and Intercreditor Agreement


SENIOR AGENT:
BANK OF MONTREAL , as Senior Agent
By:  

/s/ Tara Cuprisin

  Name:   Tara Cuprisin
  Title:   Director

Subordination and Intercreditor Agreement


JUNIOR AGENT:
U.S. BANK NATIONAL ASSOCIATION , As Junior Agent
By:  

/s/ Michael M. Hopkins

  Name:  

Michael M. Hopkins

  Title:  

Vice President

Subordination and Intercreditor Agreement


JUNIOR LENDERS:
PENNANTPARK INVESTMENT CORPORATION
By:  

/s/ Arthur H. Penn

  Name:   Arthur H. Penn
  Title:   Chief Executive Officer
PENNANTPARK FLOATING RATE CAPITAL LTD.
By:  

/s/ Arthur H. Penn

  Name:   Arthur H. Penn
  Title:   Chief Executive Officer
PENNANTPARK CREDIT OPPORTUNITIES FUND, LP
By:  

/s/ Arthur H. Penn

  Name:   Arthur H. Penn
  Title:   Managing Member of PennantPark Capital, LLC, the general partner of PennantPark Credit Opportunities Fund, LP

Subordination and Intercreditor Agreement


Exhibit A

FORM OF JOINDER AGREEMENT

This JOINDER AGREEMENT (this “ Joinder Agreement ”) dated as of [              ] is executed by the undersigned in connection with that certain Subordination and Intercreditor Agreement dated as of January 31, 2014 (the “ Agreement ”) by and among BANK OF MONTREAL, as administrative agent for the Senior Lenders from time to time party to the Senior Credit Agreement described therein, U.S. BANK NATIONAL ASSOCIATION, as collateral agent for the Junior Lenders from time to time party to the Junior Credit Agreement described therein, such Junior Lenders and J.A. COSMETICS HOLDINGS, INC. a Delaware corporation (“ J.A. Holdings ” and collectively with each other Person who becomes a “ Borrower ” under the Senior Credit Agreement, “ Borrowers ”). Capitalized terms not otherwise defined herein are being used herein as defined in the Agreement.

Each signatory hereto is required to execute this Joinder Agreement pursuant to Section 13.2 of the Agreement.

In consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each signatory hereby agrees as follows:

1. Each such signatory acknowledges receipt of the Agreement, assumes all the rights and obligations of a Junior Lender under the Agreement and agrees that such signatory shall be bound as a Junior Lender under the terms of the Agreement as if it had been an original signatory to the Agreement.

2. Each such signatory hereby waives notice of acceptance of this Joinder Agreement by the other parties to the Agreement.

 

  , as a Junior Lender
By:  

 

  Name:  

 

  Title:  

 

Exhibit 10.10(b)

CONSENT UNDER, REAFFIRMATION OF AND FIRST AMENDMENT

TO SUBORDINATION AND INTERCREDITOR AGREEMENT

THIS CONSENT UNDER, REAFFIRMATION OF AND FIRST AMENDMENT TO SUBORDINATION AND INTERCREDITOR AGREEMENT (this “ Agreement ”) is made as of August 26, 2014, by and among J.A. COSMETICS US, INC., a Delaware corporation (“ J.A. Cosmetics ”), JA 139 FULTON STREET CORP., a New York corporation (“ JA Fulton ”), JA 741 RETAIL CORP., a New York corporation (“ JA 741 Retail ”), JA COSMETICS RETAIL, INC., a New York corporation (“ JA Cosmetics Retail ”), J.A. RF, LLC, a Delaware limited liability company (“ JA RF ”), J.A. CHERRY HILL, LLC, a Delaware limited liability company (“ JA Cherry Hill ”; JA Cosmetics Retail, J.A. Cosmetics, JA Fulton, JA 741 Retail, JA RF and JA Cherry Hill collectively, the “ Borrowers ”), J.A. COSMETICS HOLDINGS, INC. a Delaware corporation (“ Holdings ”; each of the Borrowers and Holdings is referred to individually as an “ Obligor ” and collectively as the “ Obligors ”), U.S. BANK NATIONAL ASSOCIATION, as Junior Agent (as defined in the Subordination Agreement described below) (in such capacity, “ Junior Agent ”), PENNANTPARK INVESTMENT CORPORATION (“ PennantPark Investment ”), PENNANTPARK FLOATING RATE CAPITAL LTD. (“ PennantPark Floating Rate ”), and PENNANTPARK CREDIT OPPORTUNITIES FUND, LP (“ PennantPark Credit Opportunities ”; each of PennantPark Investment, PennantPark Floating Rate, PennantPark Credit Opportunities and Junior Agent and each of their respective successors and assigns are sometimes hereinafter referred to individually as a “ Junior Creditor ” and collectively as the “ Junior Creditors ”), and BANK OF MONTREAL, as administrative agent for the Senior Lenders (as defined in the Subordination Agreement described below) (in such capacity, “ Senior Agent ”).

R E C I T A L S:

WHEREAS, Borrowers, the other Obligors, the Senior Lenders (as defined in the Subordination Agreement) and Senior Agent are parties to that certain Credit Agreement dated as of January 31, 2014 (as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms of the Subordination Agreement prior to the date hereof, the “ Existing Credit Agreement ”), pursuant to which the Senior Lenders have made and will from time to time make loans and provide other financial accommodations to Borrowers;

WHEREAS, the Obligors and the Junior Creditors are parties to that certain Second Lien Credit Agreement dated as of January 31, 2014 (as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms of the Subordination Agreement prior to the date hereof, the “ Existing Second Lien Credit Agreement ”), pursuant to which the Junior Creditors have extended credit to Borrowers;

WHEREAS, Borrowers, the other Obligors, Senior Agent, on behalf of the Senior Lenders, Junior Agent and the other Junior Creditors are parties to that certain Subordination and Intercreditor Agreement dated as of January 31, 2014 (as amended, restated, supplemented or otherwise modified from time to time, including pursuant to this Agreement, the “ Subordination Agreement ”), pursuant to which the Junior Creditors agreed, among other things, that the Junior Debt (as defined in the Subordination Agreement) is and shall be subordinate to the prior payment and performance in full of the Senior Debt (as defined in the Subordination Agreement), upon the terms and subject to the conditions therein set forth.


WHEREAS, on the date hereof, the Junior Creditors and the Obligors are to enter into that certain First Amendment to Second Lien Credit Agreement (the “ Second Lien Amendment ”), pursuant to which, among other things, the Existing Second Lien Credit Agreement shall be amended in certain respects, without constituting a novation.

WHEREAS, Senior Agent’s consent to the Second Lien Amendment is required under the terms of the Subordination Agreement and as a condition precedent to such consent, Senior Agent has required the execution, delivery and performance of this Agreement by the Junior Creditors and the other parties hereto.

NOW, THEREFORE, (i) in order to induce Senior Agent to consent to the Second Lien Amendment, (ii) in order for the Junior Creditors to enter into and deliver the Second Lien Amendment, and (iii) for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:

1. Definitions . All capitalized terms used but not elsewhere defined herein shall have the respective meanings ascribed to such terms in the Subordination Agreement.

2. Amendments to Subordination Agreement . The Subordination Agreement is hereby amended as follows:

(a) All references contained in the Subordination Agreement to the “Junior Credit Agreement” shall be deemed to refer to the Existing Second Lien Credit Agreement, as amended by the Second Lien Amendment.

(b) Section 2.5 of the Subordination Agreement is hereby amended by deleting it in its entirety and substituting the following language in lieu thereof:

“2.5 Incorrect Payments . If any Distribution, including, without limitation, any proceeds of any Enforcement Action, on account of the Junior Debt not permitted to be made by an Obligor or received and retained by any Junior Creditor under this Agreement is received by any Junior Creditor such Distribution shall not be commingled with any asset of such Junior Creditor, shall be held in trust by such Junior Creditor for the benefit of Senior Lenders and shall be promptly paid over to Senior Agent, or its designated representative, for application to the payment of the Senior Debt then remaining unpaid, until all of the Senior Debt is Finally Paid; provided , however , any such Distribution received by any Junior Creditor may be retained by such Junior Creditor and the provisions of this Section 2.5 shall not apply if (a) such Junior Creditor does not receive written notice from any Obligor, the Senior Agent or any Senior Lender within ninety (90) days of receipt of such payment that such payment was received at a time during which it was prohibited to have been received by such Junior Creditor by the terms of this Agreement and (b) such Junior Creditor does not otherwise have actual knowledge that such payment has been received at a time during which it was prohibited from being received by the terms of this Agreement; provided, further, that delivery to Junior Agent in accordance with Section 11 hereof of a notice that a Payment Blockage Period is in

 

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effect due to the occurrence of a Senior Non-Payment Default shall be deemed to have satisfied all notice delivery requirements under this Section 2.5 . Without limiting any other term or condition of this Agreement, in the event that (i) a payment of any portion of the Senior Debt is due on the same day a payment with respect to any Junior Debt is due, (ii) any Obligor or any other Person obligated to make such payment defaults in the payment of such Senior Debt and (iii) payment is made to any Junior Creditor in respect of such Junior Debt, then, if Senior Agent delivers to such Junior Creditor notice of such Senior Payment Default within ninety (90) days after the date the missed payment of such Senior Debt giving rise to such Senior Payment Default was required to be paid, such Junior Creditor shall not be entitled to retain any such payment on account of the Junior Debt and the provisions of the immediately preceding sentence shall govern.”

3. Consent . Effective as of the date hereof and notwithstanding anything to the contrary contained in the Subordination Agreement the Senior Agent consents to the execution, delivery and performance of the terms of the Second Lien Amendment.

4. Ratification and Reaffirmation . Each Junior Creditor hereby (a) ratifies and reaffirms (i) the continued subordination of the Junior Debt to the Senior Debt in accordance with the Subordination Agreement, (ii) the continued subordination of the Liens securing the Junior Debt to the Liens securing the Senior Debt in accordance with the Subordination Agreement and (iii) its liabilities, obligations and agreements under the Subordination Agreement, and (b) agrees that such Subordination Agreement, the subordination effected thereby and the rights and obligations of such Junior Creditor, Senior Agent, each Senior Lender, the Borrowers and the other Obligors arising thereunder shall not be affected, modified, qualified, limited or impaired in any manner or to any extent by the Second Lien Amendment or the transactions contemplated thereunder.

5. Representations and Warranties . Each Borrower, each other Obligor and each Junior Creditor hereby represents and warrants to Senior Agent and the Senior Lenders, individually on its own behalf and not on behalf of any of the other parties hereto, that (a) except as otherwise waived by the Senior Lenders in writing in accordance with the terms of the Existing Credit Agreement and Subordination Agreement, no payment has been received by any Junior Creditor that is prohibited under the terms of the Subordination Agreement, (b) such Person has the power and authority to enter into, execute, deliver and carry out the terms of this Agreement, all of which have been duly authorized by all proper and necessary action, (c) the execution of this Agreement by such Person will not require any consent or approval which has not been obtained, and (d) this Agreement is the legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by equitable principles.

6. Miscellaneous . This Agreement shall inure to the benefit of and be binding upon Senior Agent, the Senior Lenders, the Junior Creditors, the Obligors and their respective successors and assigns. The Junior Creditors shall, at any time and from time to time, after the execution and delivery of this Agreement, upon the request of Senior Agent and at the expense of Borrowers, promptly execute and deliver such further documents and do such further acts and things as Senior Agent from time to time may reasonably request in order to effect fully the purposes of this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which taken together shall be one and the same instrument.

 

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7. Counterparts . This Agreement may be executed in any number of counterparts, and by the different parties hereto on separate counterpart signature pages, and all such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of a counterpart signature page by facsimile transmission or by e-mail transmission of an Adobe portable document format file (also known as a “PDF” file) shall be effective as delivery of a manually executed counterpart signature page.

8. Applicable Law . THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO PROVISIONS THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THAT OF THE STATE OF NEW YORK.

9. WAIVER OF JURY TRIAL . EACH OF THE JUNIOR CREDITORS, BORROWERS, THE OTHER OBLIGORS, SENIOR AGENT AND SENIOR LENDERS HEREBY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS AMONG THEM RELATING TO THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE JUNIOR CREDITORS, SENIOR AGENT, SENIOR LENDERS, BORROWERS, AND THE OTHER OBLIGORS ALSO WAIVE ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF BORROWERS, THE OTHER OBLIGORS, SENIOR AGENT, SENIOR LENDERS, OR JUNIOR CREDITORS. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH OF THE JUNIOR CREDITORS, SENIOR AGENT, SENIOR LENDERS, BORROWERS AND THE OTHER OBLIGORS ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT SENIOR AGENT, SENIOR LENDERS AND JUNIOR CREDITORS HAVE ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT SENIOR AGENT, SENIOR LENDERS AND EACH JUNIOR CREDITOR WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH OF THE JUNIOR CREDITORS, SENIOR AGENT, SENIOR LENDERS, BORROWERS AND THE OTHER OBLIGORS FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (UNLESS SUCH WRITING MAKES SPECIFIC REFERENCE TO THIS SECTION 9 ), AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THE SUBORDINATION AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT .

 

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[Signature Pages Follow]

 

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IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be executed as of the date first above written.

 

SENIOR AGENT :
BANK OF MONTREAL, as Senior Agent
By:  

/s/ Tara Cuprisin

Name:   Tara Cuprisin
Title:   Director

 

Consent Under, Reaffirmation of and First Amendment to Subordination and Intercreditor Agreement


IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be executed as of the date first above written.

 

JUNIOR CREDITORS :
U.S. BANK, NATIONAL ASSOCIATION, as Junior Agent
By:  

/s/ Michael M. Hopkins

Name:   Michael M. Hopkins
Title:   Vice President
PENNANTPARK INVESTMENT CORPORATION
By:  

/s/ Arthur H. Penn

Name:   Arthur H. Penn
Title:   Chief Executive Officer
PENNANTPARK FLOATING RATE CAPITAL LTD.
By:  

/s/ Arthur H. Penn

Name:   Arthur H. Penn
Title:   Chief Executive Officer
PENNANTPARK CREDIT OPPORTUNITIES FUND, LP
By:  

/s/ Arthur H. Penn

Name:   Arthur H. Penn
Title:   Managing Member of PennantPark Capital, LLC, the general partner of the Fund

 

Consent Under, Reaffirmation of and First Amendment to Subordination and Intercreditor Agreement


IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be executed as of the date first above written.

 

OBLIGORS :
J.A. COSMETICS US, INC., a Delaware corporation
By:  

/s/ Tarang Amin

Name:   Tarang Amin
Title:   Chief Executive Officer and President
JA 139 FULTON STREET CORP., a New York corporation
By:  

/s/ Tarang Amin

Name:   Tarang Amin
Title:   Chief Executive Officer and President
JA 741 RETAIL CORP., a New York corporation
By:  

/s/ Tarang Amin

Name:   Tarang Amin
Title:   Chief Executive Officer and President
JA COSMETICS RETAIL, INC., a New York corporation
By:  

/s/ Tarang Amin

Name:   Tarang Amin
Title:   Chief Executive Officer and President
J.A. RF, LLC a Delaware limited liability company
By:  

/s/ Tarang Amin

Name:   Tarang Amin
Title:   Chief Executive Officer and President

 

Consent Under, Reaffirmation of and First Amendment to Subordination and Intercreditor Agreement


J.A. CHERRY HILL, LLC a Delaware limited liability company
By:  

/s/ Tarang Amin

Name:   Tarang Amin
Title:   Chief Executive Officer and President
J.A. COSMETICS HOLDINGS, INC. a Delaware corporation
By:  

/s/ Tarang Amin

Name:   Tarang Amin
Title:   Chief Executive Officer and President

 

Consent Under, Reaffirmation of and First Amendment to Subordination and Intercreditor Agreement

Exhibit 10.10(c)

CONSENT UNDER, REAFFIRMATION OF AND SECOND AMENDMENT

TO SUBORDINATION AND INTERCREDITOR AGREEMENT

THIS CONSENT UNDER, REAFFIRMATION OF AND SECOND AMENDMENT TO SUBORDINATION AND INTERCREDITOR AGREEMENT (this “ Agreement ”) is made as of June 7, 2016, by and among E.L.F. COSMETICS, INC. (formerly known as J.A. Cosmetics US, Inc.), a Delaware corporation (“ e.l.f. Cosmetics ”), JA 139 FULTON STREET CORP., a New York corporation (“ JA Fulton ”), JA 741 RETAIL CORP., a New York corporation (“ JA 741 Retail ”), JA COSMETICS RETAIL, INC., a New York corporation (“ JA Cosmetics Retail ”), J.A. RF, LLC, a Delaware limited liability company (“ JA RF ”), J.A. CHERRY HILL, LLC, a Delaware limited liability company (“ JA Cherry Hill ”; JA Cosmetics Retail, J.A. Cosmetics, JA Fulton, JA 741 Retail, JA RF and JA Cherry Hill collectively, the “ Borrowers ”), E.L.F. BEAUTY, INC. (formerly known as J.A. Cosmetics Holdings, Inc.), a Delaware corporation (“ Holdings ”; each of the Borrowers and Holdings is referred to individually as an “ Obligor ” and collectively as the “ Obligors ”), U.S. BANK NATIONAL ASSOCIATION, as Junior Agent (as defined in the Subordination Agreement described below) (in such capacity, “ Junior Agent ”), PENNANTPARK INVESTMENT CORPORATION (“ PennantPark Investment ”), PENNANTPARK FLOATING RATE CAPITAL LTD. (“ PennantPark Floating Rate ”), and PENNANTPARK CREDIT OPPORTUNITIES FUND II, LP (“ PennantPark Credit Opportunities ”; each of PennantPark Investment, PennantPark Floating Rate, PennantPark Credit Opportunities and Junior Agent and each of their respective successors and assigns are sometimes hereinafter referred to individually as a “ Junior Creditor ” and collectively as the “ Junior Creditors ”), and BANK OF MONTREAL, as administrative agent for the Senior Lenders (as defined in the Subordination Agreement described below) (in such capacity, “ Senior Agent ”).

R E C I T A L S:

WHEREAS, Borrowers, the other Obligors, the Senior Lenders (as defined in the Subordination Agreement) and Senior Agent are parties to that certain Credit Agreement dated as of January 31, 2014 (as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms of the Subordination Agreement prior to the date hereof, the “ Existing Credit Agreement ”), pursuant to which the Senior Lenders have made and will from time to time make loans and provide other financial accommodations to Borrowers;

WHEREAS, the Obligors and the Junior Creditors are parties to that certain Second Lien Credit Agreement dated as of January 31, 2014 (as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms of the Subordination Agreement prior to the date hereof, including, for the avoidance of doubt, by that certain First Amendment to Second Lien Credit Agreement, dated as August 26, 2014, the “ Existing Second Lien Credit Agreement ”), pursuant to which the Junior Creditors have extended credit to Borrowers;

WHEREAS, Borrowers, the other Obligors, Senior Agent, on behalf of the Senior Lenders, Junior Agent and the other Junior Creditors are parties to that certain Subordination and Intercreditor Agreement dated as of January 31, 2014 (as amended, restated, supplemented or otherwise modified from time to time, including pursuant to that certain Consent Under, Reaffirmation of and First Amendment to Subordination And Intercreditor Agreement, dated August 26, 2014, and pursuant to this Agreement, the “ Subordination Agreement ”), pursuant to which the Junior Creditors agreed, among other things, that the Junior Debt (as defined in the Subordination Agreement) is and shall be subordinate to the prior payment and performance in full of the Senior Debt (as defined in the Subordination Agreement), upon the terms and subject to the conditions therein set forth;


WHEREAS, on the date hereof, the Senior Agent, the Senior Lenders and the Obligors are to enter into that certain First Amendment to Credit Agreement (the “ First Lien Amendment ”), pursuant to which, among other things, the Existing Credit Agreement shall be amended in certain respects, without constituting a novation;

WHEREAS, on the date hereof, the Junior Creditors and the Obligors are to enter into that certain Second Amendment to Second Lien Credit Agreement (the “ Second Lien Amendment ”), pursuant to which, among other things, the Existing Second Lien Credit Agreement shall be amended in certain respects, without constituting a novation;

WHEREAS, (i) Senior Agent’s consent to the Second Lien Amendment is required under the terms of the Subordination Agreement and as a condition precedent to such consent, Senior Agent has required the execution, delivery and performance of this Agreement by the Junior Creditors and the other parties hereto and (ii) Junior Creditors consent to the First Lien Amendment is required under the terms of the Subordination Agreement and as a condition precedent to such consent, Junior Creditors have required the execution, delivery and performance of this Agreement by the Senior Lenders and the other parties hereto.

NOW, THEREFORE, (i) in order to induce Senior Agent to consent to the Second Lien Amendment, (ii) in order for the Senior Lenders and Senior Agent to enter into and deliver the First Lien Amendment, (iii) in order to induce the Junior Creditors to consent to the First Lien Amendment, (iv) in order for the Junior Creditors to enter into and deliver the Second Lien Amendment, and (iv) for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:

1. Definitions . All capitalized terms used but not elsewhere defined herein shall have the respective meanings ascribed to such terms in the Subordination Agreement.

2. Amendments to Subordination Agreement . The Subordination Agreement is hereby amended as follows:

(a) All references contained in the Subordination Agreement to the “Junior Credit Agreement” shall be deemed to refer to the Existing Second Lien Credit Agreement, as amended by the Second Lien Amendment.

(b) All references contained in the Subordination Agreement to the “Senior Credit Agreement” shall be deemed to refer to the Existing Credit Agreement, as amended by the First Lien Amendment.

 

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(c) Section 1.1 of the Subordination Agreement is hereby amended by, as applicable (i) adding the following defined terms and the definitions therefor in appropriate alphabetical order and (ii) restating the applicable defined terms and the definitions therefor in appropriate alphabetical order:

Permitted Subordinated Lien ” shall mean Liens on Collateral in which Junior Agent shall have been granted or purported to be granted a first priority Lien, which Liens (and rights and obligations with respect thereto) shall be subject and subordinate to the Liens of Senior Agent on the terms and in the manner set forth herein.”

““ Second Amendment Effective Date ” shall mean June 7, 2016.”

““ Senior Debt ” shall mean all obligations, liabilities and indebtedness of every nature of any Borrower or any other Obligor from time to time owed to Senior Agent or any Senior Lender under the Senior Debt Documents, including any Permitted Refinancing, and all indebtedness or other liabilities arising under or out of Credit Product Arrangements (as defined in the Senior Credit Agreement) that are secured by the Collateral under the Senior Debt Documents, including, without limitation, the principal amount of all debts, claims and indebtedness, accrued and unpaid interest and all fees, costs and expenses, whether primary, secondary, direct, contingent, fixed or otherwise, heretofore, now and from time to time hereafter owing, due or payable, whether before or after the commencement of an Insolvency Proceeding together with (a) any amendments, modifications, renewals or extensions thereof to the extent not prohibited by the terms of this Agreement and (b) any interest accruing thereon after the commencement of an Insolvency Proceeding, without regard to whether or not such interest is an allowed claim; provided , however , that in no event shall the principal amount of the Senior Debt exceed the sum of:

(i) the principal amount of the loans and any unfunded loan commitments under the Senior Credit Agreement as in effect on the Second Amendment Effective Date (i.e. $188,750,000) reduced by the amount of any prepayments and repayments and commitment reductions under the Senior Credit Agreement to the extent that such repayments and reductions may not be reborrowed (specifically excluding, however, any such prepayments and repayments and commitment reductions occurring in connection with any Permitted Refinancing), plus

(ii) all indebtedness or other liabilities arising under or out of Credit Product Arrangements, plus

(iii) interest, fees and expenses that are capitalized (including, in the event of an Insolvency Proceeding, any and all post-petition interest and costs from and after the date of filing of a petition by or against any Obligor or its bankruptcy estate, whether or not such amounts are allowed as a claim enforceable against such Obligor in any Proceeding, and any other interest that would have accrued but for the commencement of such Proceeding), plus

(iv) 120% of the aggregate principal amount of all Increases (as defined in the Senior Credit Agreement), such Increases not to exceed $15,000,000 in the aggregate, consummated after the Second Amendment Effective Date pursuant to Section 2.18 of the Senior Credit Agreement, plus

(v) $37,750,000.

Senior Debt shall be considered to be outstanding whenever any loan commitment under the Senior Debt Document is outstanding.”

3. Consent . Effective as of the date hereof and notwithstanding anything to the contrary contained in the Subordination Agreement, (i) the Senior Agent consents to the execution, delivery and performance of the terms of the Second Lien Amendment substantially in the form attached hereto as Exhibit A and (ii) the Junior Creditors consent to the execution, delivery and performance of the terms of the First Lien Amendment substantially in the form attached hereto as

 

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Exhibit B . The Senior Agent acknowledges that payments made to satisfy the condition precedent in Section 3d of the Second Lien Amendment are permitted under the Subordination Agreement and constitute a Permitted Subordinated Debt Payment.

4. Ratification and Reaffirmation . Each Junior Creditor hereby (a) ratifies and reaffirms (i) the continued subordination of the Junior Debt to the Senior Debt in accordance with the Subordination Agreement, (ii) the continued subordination of the Liens securing the Junior Debt to the Liens securing the Senior Debt in accordance with the Subordination Agreement and (iii) its liabilities, obligations and agreements under the Subordination Agreement, and (b) agrees that such Subordination Agreement, the subordination effected thereby and the rights and obligations of such Junior Creditor, Senior Agent, each Senior Lender, the Borrowers and the other Obligors arising thereunder shall not be affected, modified, qualified, limited or impaired in any manner or to any extent by the Second Lien Amendment or the transactions contemplated thereunder.

5. Representations and Warranties . Each Borrower and each other Obligor hereby represents and warrants to Senior Agent and the Senior Lenders, individually on its own behalf and not on behalf of any of the other parties hereto, that (a) except as otherwise waived by the Senior Lenders in writing in accordance with the terms of the Existing Credit Agreement and Subordination Agreement, no payment has been received by any Junior Creditor that is prohibited under the terms of the Subordination Agreement, (b) such Person has the power and authority to enter into, execute, deliver and carry out the terms of this Agreement, all of which have been duly authorized by all proper and necessary action, (c) the execution of this Agreement by such Person will not require any consent or approval which has not been obtained, and (d) this Agreement is the legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by equitable principles. Senior Agent hereby represents and warrants to each Junior Creditor that as of the date hereof: (a) Senior Agent has the power and authority to enter into, execute, deliver and carry out the terms of this Agreement on behalf of the Senior Lenders, all of which have been duly authorized by all proper and necessary action, (b) the execution of this Agreement by Senior Agent will not require any consent or approval which has not been obtained, and (c) this Agreement is the legal, valid and binding obligation of Senior Agent, enforceable against Senior Agent in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles. Each Junior Creditor hereby represents and warrants to Senior Agent and the Senior Lenders that as of the date hereof: (a) such Junior Creditor has the power and authority to enter into, execute, deliver and carry out the terms of this Agreement, all of which have been duly authorized by all proper and necessary action, (b) the execution of this Agreement by such Junior Creditor will not require any consent or approval which has not been obtained, and (c) this Agreement is the legal, valid and binding obligation of such Junior Creditor, enforceable against such Junior Creditor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles.

6. Miscellaneous . This Agreement shall inure to the benefit of and be binding upon Senior Agent, the Senior Lenders, the Junior Creditors, the Obligors and their respective successors and assigns. The Junior Creditors shall, at any time and from time to time, after the execution and

 

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delivery of this Agreement, upon the request of Senior Agent and at the expense of Borrowers, promptly execute and deliver such further documents and do such further acts and things as Senior Agent from time to time may reasonably request in order to effect fully the purposes of this Agreement.

7. Counterparts . This Agreement may be executed in any number of counterparts, and by the different parties hereto on separate counterpart signature pages, and all such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of a counterpart signature page by facsimile transmission or by e-mail transmission of an Adobe portable document format file (also known as a “PDF” file) shall be effective as delivery of a manually executed counterpart signature page.

8. Applicable Law . THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO PROVISIONS THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THAT OF THE STATE OF NEW YORK.

9. WAIVER OF JURY TRIAL . EACH OF THE JUNIOR CREDITORS, BORROWERS, THE OTHER OBLIGORS, SENIOR AGENT AND SENIOR LENDERS HEREBY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS AMONG THEM RELATING TO THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE JUNIOR CREDITORS, SENIOR AGENT, SENIOR LENDERS, BORROWERS, AND THE OTHER OBLIGORS ALSO WAIVE ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF BORROWERS, THE OTHER OBLIGORS, SENIOR AGENT, SENIOR LENDERS, OR JUNIOR CREDITORS. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH OF THE JUNIOR CREDITORS, SENIOR AGENT, SENIOR LENDERS, BORROWERS AND THE OTHER OBLIGORS ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT SENIOR AGENT, SENIOR LENDERS AND JUNIOR CREDITORS HAVE ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT SENIOR AGENT, SENIOR LENDERS AND EACH JUNIOR CREDITOR WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH OF THE JUNIOR CREDITORS, SENIOR AGENT, SENIOR LENDERS, BORROWERS AND THE OTHER OBLIGORS FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (UNLESS SUCH WRITING MAKES SPECIFIC REFERENCE TO THIS SECTION 9 ), AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THE SUBORDINATION AGREEMENT. IN THE

 

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EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT .

[Signature Pages Follow]

 

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IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be executed as of the date first above written.

 

SENIOR AGENT :
BANK OF MONTREAL, as Senior Agent
By:  

/s/ Tara Cuprisin

Name:   Tara Cuprisin
Title:   Director

 

Consent Under, Reaffirmation of and Second Amendment to Subordination and Intercreditor Agreement


IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be executed as of the date first above written.

 

JUNIOR CREDITORS :
U.S. BANK, NATIONAL ASSOCIATION, as Junior Agent
By:  

/s/ Kathy L. Mitchell

Name:   Kathy L. Mitchell
Title:   Vice President
PENNANTPARK INVESTMENT CORPORATION
By:  

/s/ Arthur H. Penn

Name:   Arthur H. Penn
Title:   Chief Executive Officer
PENNANTPARK FLOATING RATE CAPITAL LTD.
By:  

/s/ Arthur H. Penn

Name:   Arthur H. Penn
Title:   Chief Executive Officer
PENNANTPARK CREDIT OPPORTUNITIES FUND II, LP
By:  

/s/ Arthur H. Penn

Name:   Arthur H. Penn
Title:   Managing Member of PennantPark Capital, LLC, which is the General Partner of the Fund

 

Consent Under, Reaffirmation of and Second Amendment to Subordination and Intercreditor Agreement


IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be executed as of the date first above written.

 

OBLIGORS :
E.L.F. COSMETICS, INC. (formerly known as J.A. Cosmetics US, Inc.), a Delaware corporation
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer
JA 139 FULTON STREET CORP., a New York corporation
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer
JA 741 RETAIL CORP., a New York corporation
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer
JA COSMETICS RETAIL, INC., a New York corporation
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer
J.A. RF, LLC a Delaware limited liability company
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer

 

Consent Under, Reaffirmation of and Second Amendment to Subordination and Intercreditor Agreement


J.A. CHERRY HILL, LLC a Delaware limited liability company
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer
E.L.F. BEAUTY, INC. (formerly known as J.A. Cosmetics Holdings, Inc.), a Delaware corporation
By:  

/s/ John Bailey

Name:   John Bailey
Title:   President and Chief Financial Officer

 

Consent Under, Reaffirmation of and Second Amendment to Subordination and Intercreditor Agreement

Exhibit 10.11

 

 

PLEDGE AND SECURITY AGREEMENT

dated as of January 31, 2014

among

J.A. COSMETICS HOLDINGS, INC.

AND THE OTHER PERSONS FROM

TIME TO TIME PARTY HERETO

as Grantors,

and

BANK OF MONTREAL,

as Administrative Agent

 

 


PLEDGE AND SECURITY AGREEMENT

This PLEDGE AND SECURITY AGREEMENT (as amended, restated or supplemented from time to time, this “ Agreement ”) dated as of January 31, 2014, is made by each of the Grantors referred to below, in favor of BANK OF MONTREAL, in its capacity as Administrative Agent for each Lender Party (as defined in the Credit Agreement) (in such capacity, together with its successors and permitted assigns in such capacity, if any, the “ Administrative Agent ”).

RECITALS:

WHEREAS , J.A. Cosmetics Holdings, Inc., a Delaware corporation (“ Holdings ”), as the initial borrower (the “ Initial Borrower ”; each of the Initial Borrower, and each Domestic Subsidiary of Initial Borrower who hereafter becomes a “Borrower” thereunder pursuant to a Joinder Agreement, are referred to individually as a “ Borrower ” and collectively as the “ Borrowers ”), each Person that becomes a “Guarantor” thereunder or otherwise guaranties all or any part of the Obligations (as defined therein), each a “ Guarantor ” and collectively with Holdings, the “ Guarantors ,” and together with the Borrowers and each other Person that executes a supplement hereto and becomes an “ Additional Grantor ” hereunder, each a “Grantor” and collectively, the “ Grantors ”), the lenders from time to time party thereto (each a “ Lender ” and collectively, the “ Lenders ”) and Administrative Agent, Swing Line Lender (as defined therein) and L/C Issuer (as defined therein) are parties to that certain Credit Agreement, dated as of the date hereof (such agreement, as amended, restated, supplemented, modified or otherwise changed from time to time, including any replacement agreement therefor, being hereinafter referred to as the “ Credit Agreement ”);

WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make certain term loans and revolving loans, which revolving loans will include subfacilities for the issuance of letters of credit and swingline loans to the Borrowers (each a “ Loan ” and collectively, the “ Loans ”);

WHEREAS, it is a condition precedent to the Lenders making the Loans to the Borrowers pursuant to the Credit Agreement that each Grantor shall have executed and delivered to Administrative Agent a pledge to Administrative Agent, for the benefit of the Lender Parties, and the grant to Administrative Agent, for the benefit of the Lender Parties, of (a) a security interest in and Lien (as defined in the Credit Agreement) on the outstanding shares of Equity Interests (as defined in the Credit Agreement) and indebtedness from time to time owned by such Grantor of each Subsidiary now or hereafter existing and in which such Grantor has any interest at any time, and (b) a security interest in substantially all other personal property and fixtures of such Grantor, in each case, excluding the Excluded Assets;

WHEREAS, the Grantors are mutually dependent on each other in the conduct of their respective businesses as an integrated operation, with credit needed from time to time by each Grantor often being provided through financing obtained by the other Grantors and the ability to obtain such financing being dependent on the successful operations of all of the Grantors as a whole; and

 

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WHEREAS, each Grantor has determined that the execution, delivery and performance of this Agreement directly benefit, and are in the best interest of, such Grantor;

NOW, THEREFORE, in consideration of the premises and the agreements herein and in order to induce Administrative Agent, the L/C Issuer, the Lenders and the other Lender Parties to make and maintain the Loans and to issue or participate in Letters of Credit and Swing Line Loans and to provide other financial accommodations to the Borrowers pursuant to the Credit Agreement, the Grantors hereby jointly and severally agree with Administrative Agent, for the benefit of the Lender Parties, as follows:

SECTION 1. Definitions .

(a) All capitalized terms used in this Agreement and the recitals hereto which are defined in the Credit Agreement or in Article 8 or 9 of the Uniform Commercial Code as in effect from time to time in the State of New York (the “UCC”) and which are not otherwise defined herein shall have the same meanings herein as set forth therein.

(b) The following terms shall have the respective meanings provided for in the UCC: “Accounts,” “Account Debtor,” “Cash Proceeds,” “Certificate of Title,” “Chattel Paper,” “Commercial Tort Claim,” “Commodity Account,” “Commodity Contracts,” “Deposit Account,” “Documents,” “Electronic Chattel Paper,” “Equipment,” “Fixtures,” “General Intangibles,” “Goods,” “Instruments,” “Inventory,” “Investment Property,” “Letter-of-Credit Rights,” “Noncash Proceeds,” “Payment Intangibles,” “Proceeds,” “Promissory Notes,” “Record,” “Securities Account,” “Security Entitlements,” “Software,” and “Supporting Obligations.”

(c) Reference is hereby made to Section 1.01 of the Credit Agreement, the terms of which are hereby incorporated by reference herein as if fully set forth herein.

(d) As used in this Agreement, the following terms shall have the respective meanings indicated below:

Additional Collateral ” has the meaning specified therefor in Section 4(a)(i) hereof.

Copyrights ” means any and all rights arising under applicable Law in (i) copyrights, whether or not published, (ii) copyright registrations and recordings thereof and all applications in connection therewith including those listed on Schedule II hereto, (iii) all renewals, extensions, restorations and reversions thereof, (iv) income, license fees, royalties, damages, and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past, present, or future infringements thereof, and (v) the right to sue for past, present, and future infringements thereof.

Excluded Assets : (a) any lease, license or agreement or any assets or property subject to such agreement, other than Inventory and Accounts, that would otherwise be included as Collateral but for the express terms of any permit, lease, license, contract or other agreement or instrument applicable to such asset or property, in each case, to the extent a grant to

 

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Administrative Agent of a security interest in and to such asset or property or under which the grant to Administrative Agent of a security interest in and to such asset or property would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than a Grantor or Affiliate of a Grantor) or otherwise require consent thereunder (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law); provided , however , that such assets or property shall constitute “Excluded Assets” only to the extent and for so long as such permit, lease, license, contract or other agreement or instrument applicable to such asset or property or applicable Law validly prohibits the creation of a Lien on such property or asset in favor of Administrative Agent and, upon the termination of such prohibition or circumstance (by written consent or in any other manner), such property shall cease to constitute “Excluded Assets”; (b) all governmental licenses, charters and authorizations that would otherwise be included as Collateral but for the express terms of applicable Law (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law) that prohibits or restricts the grant to Administrative Agent of a security interest in and to such governmental license, charter or authorization; provided , however , that such governmental licenses, charters and authorizations shall constitute “Excluded Assets” only to the extent and for so long as such applicable Law validly prohibits the creation of a Lien on such governmental license, charter or authorization in favor of Administrative Agent and, upon the termination of such prohibition or circumstance (by written consent or in any other manner), such property shall cease to constitute “Excluded Assets”; (c) (i) Equity Interests of any first-tier Foreign Subsidiary, Excluded Domestic Holdco or Excluded Domestic Subsidiary in excess of 65% of the aggregate Equity Interests of such first-tier Foreign Subsidiary, Excluded Domestic Holdco or Excluded Domestic Subsidiary and (ii) Equity Interests of any other Foreign Subsidiary, Excluded Domestic Holdco or Excluded Domestic Subsidiary; (d) motor vehicles, airplanes and other assets, the perfection of which requires notation on a certificate of title or ownership; (e) Letterof-Credit rights (other than those that constitute Supporting Obligations) with a face value of less than $250,000 in the aggregate; (1) Commercial Tort Claims with a value of less than $1,500,000 in the aggregate; (g) interests in joint ventures and non-wholly-owned Subsidiaries which cannot be pledged without the consent of one or more Persons (other than the Grantors and their respective Affiliates) (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law); (h) pledges and security interests prohibited or restricted by applicable Law (including any requirement to obtain the consent of any Governmental Authority or third party (other than a Grantor or Affiliate of a Grantor)) (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law); (i) any “intent to use” Trademark applications for which a statement of use or amendment to allege use has not been filed to the extent that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such intent to use Trademark application under applicable federal Law (but only until such statement or amendment is filed and accepted); (j) any leasehold interests in real property and any fee owned real property with fair market value of less than $2,000,000; (k) any property that is subject to a purchase money Lien or a Capital

 

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Lease permitted under the Credit Agreement if the contractual obligation pursuant to which such Lien is granted (or in the document providing for such Capital Lease) prohibits or requires the consent of any Person other than a Grantor which has not been obtained as a condition to the creation of any other Lien on such equipment, and if and when the prohibition which prevents the granting of a security interest in any such property is removed, terminated, or otherwise becomes unenforceable as a matter of law, the Administrative Agent will be deemed to have a security interest in such property, and the Collateral will be deemed to include such property; and (1) other assets to the extent Administrative Agent reasonably determines that the cost of obtaining such pledge or security interest or perfection thereof is excess in relation to the practical benefit to the Lenders thereof; provided , however , that Excluded Assets shall not include any Proceeds of property described in clauses (a) through (l) above (unless such Proceeds are also described in such clauses).

Existing Issuer ” has the meaning specified therefor in the definition of the term “Pledged Shares.”

Intellectual Property ” means any and all Patents, Copyrights and Trademarks.

Licenses ” means, with respect to any Person (the “ Specified Party ”), (i) any licenses or other use rights provided to the Specified Party in or with respect to Intellectual Property owned or controlled by any other Person, and (ii) any licenses or other use rights provided to any other Person in or with respect to Intellectual Property owned or controlled by the Specified Party, in each case, including any software license agreements (other than license agreements for commercially available off-the-shelf software that is generally available to the public which have been licensed to a Grantor pursuant to end-user licenses).

Patents ” means patents and patent applications (whether established or registered or recorded in the United States or any other country or any political subdivision thereof), including the patents and patent applications listed on Schedule III hereto, together with any and all (i) rights and privileges arising under applicable Law with respect to use of any patents, (ii) inventions and improvements described and claimed therein, (ii) continuations, divisionals, continuations-in-part, re-examinations, and reissue thereof and improvements thereon, (iii) income, fees, royalties, damages, claims and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past, present, or future infringements thereof, and (iv) the right to sue for past, present, and future infringements thereof.

Pledged Debt ” means the indebtedness described in Schedule IX hereto and all indebtedness from time to time owned or acquired by a Grantor, the promissory notes and other Instruments evidencing any or all of such indebtedness, and all other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such indebtedness.

Pledged Interests ” means, collectively, (a) the Pledged Debt, (b) the Pledged Shares and (c) all Security Entitlements in any and all of the foregoing.

 

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Pledged Issuer ” has the meaning specified therefor in the definition of the term “Pledged Shares.”

Pledged Shares ” means (a) the shares of Equity Interests described in Schedule X hereto, whether or not evidenced or represented by any stock certificate, certificated security or other Instrument, issued by the Persons described in such Schedule X (the “Existing Issuers”), (b) the shares of Equity Interests at any time and from time to time acquired by a Grantor of any and all Persons now or hereafter existing (such Persons, together with the Existing Issuers, being hereinafter referred to collectively as the “ Pledged Issuers ” and each individually as a “ Pledged Issuer ”), whether or not evidenced or represented by any stock certificate, certificated security or other Instrument, and (c) the certificates representing such shares of Equity Interests, all options and other rights, contractual or otherwise, in respect thereof and all dividends, distributions, cash, Instruments, Investment Property, financial assets, securities, Equity Interests, other equity interests, stock options and commodity contracts, notes, debentures, bonds, promissory notes or other evidences of indebtedness and all other property (including, without limitation, any stock dividend and any distribution in connection with a stock split) from time to time received, receivable or otherwise distributed, in each case, in respect of or in exchange for any or all of such Equity Interests.

Secured Obligations ” has the meaning assigned to such term in Section 3 hereof.

Securities Act ” means the Securities Act of 1933, as amended, or any similar Federal statute, and the rules and regulations of the SEC thereunder, all as the same shall be in effect from time to time.

Trademarks ” means any and all trademarks, trade names, registered trademarks, trademark applications, service marks, registered service marks, brand names, domain names, logos, symbols, trade dress, assumed names, fictitious names and service mark applications, and all registrations and applications for the foregoing (whether statutory or common law and whether established or registered in the United States or any other country or any political subdivision thereof) including the registrations and applications listed on Schedule IV hereto, together with (i) all extensions, modifications and renewals thereof, (ii) all income, royalties, damages and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past or future infringements or dilutions thereof, (iii) the right to sue for past, present and future infringements and dilutions thereof, and (iv) the goodwill of the business symbolized by the foregoing or connected therewith.

SECTION 2. Grant of Security Interest . As collateral security for the payment and performance when due of all of the Secured Obligations, each Grantor hereby pledges and collaterally assigns to Administrative Agent, and grants to Administrative Agent, for the benefit of the Lender Parties, a continuing security interest in, the following personal property and Fixtures of such Grantor, wherever located and whether now or hereafter existing and whether now owned or hereafter acquired, of every kind and description, tangible or intangible (all being collectively referred to herein as the “ Collateral ”):

(a) all Accounts;

 

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(b) all Goods, including, without limitation, all Equipment (including rolling stock), Fixtures and Inventory;

(c) all Chattel Paper (whether tangible or electronic);

(d) the Commercial Tort Claims specified on Schedule VIII ;

(e) all Deposit Accounts, all cash, and all other property from time to time deposited therein or otherwise credited thereto and the monies and property in the possession or under the control of Administrative Agent or any Lender Party or any affiliate, representative, agent or correspondent of Administrative Agent or any Lender Party;

(f) all Documents;

(g) all General Intangibles (including, without limitation, all Payment Intangibles, Intellectual Property and Licenses and all goodwill of the business in connection therewith);

(h) all Instruments (including, without limitation, Promissory Notes);

(i) all Investment Property;

(j) all Letter-of-Credit Rights;

(k) all Pledged Interests;

(l) all Supporting Obligations;

(m) all other tangible and intangible personal property of such Grantor (whether or not subject to the UCC), including, without limitation, all bank and other accounts and all cash and all investments therein, all proceeds, products, offspring, accessions, rents, profits, income, benefits, substitutions and replacements of and to any of the property of such Grantor described in the preceding clauses of this Section 2 hereof (including, without limitation, any proceeds of insurance thereon and all causes of action, claims and warranties now or hereafter held by such Grantor in respect of any of the items listed above), and all books, correspondence, files and other Records, including, without limitation, all tapes, disks, cards, Software, data and computer programs in the possession or under the control of such Grantor that at any time evidence or contain information relating to any of the property described in the preceding clauses of this Section 2 hereof or are otherwise necessary or helpful in the collection or realization thereof; and

(n) all Proceeds, including all Cash Proceeds and Noncash Proceeds, and products of any and all of the foregoing Collateral;

in each case howsoever such Grantor’s interest therein may arise or appear (whether by ownership, security interest, claim or otherwise).

 

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Notwithstanding anything herein to the contrary, (i) the term “Collateral” shall not include, and no Grantor is pledging, nor granting a security interest hereunder in, any Excluded Assets, (ii) the Debtors shall not be required to take any action intended to cause Excluded Assets to constitute Collateral and (iii) none of the covenants or representations and warranties herein or in any other Security Instrument shall be deemed to apply to any property constituting Excluded Assets.

SECTION 3. Security for Secured Obligations . The security interest created hereby in the Collateral constitutes continuing collateral security for all of the following obligations, whether now existing or hereafter incurred (the “ Secured Obligations ”):

(a) the prompt payment by each Grantor, as and when due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), of all amounts from time to time owing by it in respect of (i) the Secured Obligations (as defined in the Credit Agreement), and (ii) in the case of a Guarantor, all amounts from time to time owing by such Grantor in respect of its guaranty made pursuant to Article XI of the Credit Agreement or under any other guaranty to which it is a party, in each case, with respect to such Loan Obligations; and

(b) the due performance when due by each Grantor of all of its other obligations from time to time existing in respect of the Loan Documents.

SECTION 4. Delivery of the Pledged Interests.

(a) 1. Subject to Section 4.01 of the Credit Agreement, all promissory notes having a face amount in excess of $1,500,000 evidencing the Pledged Debt and all certificates representing the Pledged Shares shall be delivered to Administrative Agent as of the Closing Date. All hereafter acquired promissory notes having a face amount in excess of $1,500,000, Instruments having a face amount in excess of $1,500,000 and certificates, in each case, constituting Pledged Interests (the “ Additional Collateral ”) shall be delivered to Administrative Agent promptly upon, but in any event within thirty (30) days (or such longer time as the Administrative Agent may permit in its discretion) of, receipt thereof by or on behalf of any of the Grantors. All such promissory notes, certificates and Instruments shall be held by or on behalf of Administrative Agent pursuant hereto and shall be delivered in suitable form for transfer by delivery or shall be accompanied by duly executed instruments of transfer or assignment or undated stock powers executed in blank, all in form and substance reasonably satisfactory to Administrative Agent. If any material Pledged Interests consist of uncertificated securities, at the Administrative Agent’s request, such Grantor shall cause each issuer of such securities to agree that it will comply with instructions originated by Administrative Agent with respect to such securities without further consent by such Grantor. If any Pledged Interests consist of Security Entitlements with a value in excess of $1,500,000, such Grantor shall transfer such Security Entitlements to Administrative Agent (or its custodian, nominee or other designee), or use commercially reasonable efforts to cause the applicable securities intermediary to agree that it will comply with entitlement orders by Administrative Agent without further consent by such Grantor; provided, that Administrative Agent agrees that it shall not issue such entitlement orders except in accordance with the terms of this Agreement.

 

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2. Within thirty (30) days (or such longer time as the Administrative Agent may permit in its discretion) of the receipt by a Grantor of any Additional Collateral, a Pledge Amendment, duly executed by such Grantor, in substantially the form of Exhibit A hereto (a “ Pledge Amendment ”), shall be delivered to Administrative Agent, in respect of the Additional Collateral that must be pledged pursuant to this Agreement. The Pledge Amendment shall from and after delivery thereof constitute part of Schedules IX and X hereto. Each Grantor hereby authorizes Administrative Agent to attach each Pledge Amendment to this Agreement and agrees that all promissory notes, certificates or Instruments listed on any Pledge Amendment delivered to Administrative Agent shall for all purposes hereunder constitute Pledged Interests and such Grantor shall be deemed upon delivery thereof to have made the representations and warranties set forth in Sections 5(h) , (i) , (j) and (l) hereof with respect to such Additional Collateral.

(b) If any Grantor shall receive, by virtue of such Grantor’s being or having been an owner of any Pledged Interests, any (i) stock certificate (including, without limitation, any certificate representing a stock dividend or distribution in connection with any increase or reduction of capital, reclassification, merger, consolidation, sale of assets, combination of shares, stock split, spin-off or split-off), certificated Investment Property, promissory note, other Instrument, such Grantor shall deliver such stock certificate, certificated Investment Property, promissory note or Instrument, as the case may be, to the Administrative Agent in accordance with the terms of this Agreement.

SECTION 5. Representations and Warranties . Each Grantor jointly and severally represents and warrants as follows:

(a) Schedule I hereto sets forth as of the Closing Date (i) the exact legal name of each Grantor, (ii) the state or jurisdiction of organization of each Grantor, (iii) the type of organization of each Grantor and (iv) the organizational identification number of each Grantor or states that no such organizational identification number exists.

(b) Reserved.

(c) All Equipment, Fixtures, Inventory and other Goods now existing (other than (i) Inventory or Equipment in transit, out for repair, in the possession of an employee of a Grantor in the Ordinary Course of Business (including laptops and cell phones) or, any other Inventory and Equipment having a value less than $500,000 in the aggregate) are located at the addresses specified therefor in Schedule V hereto. As of the Closing Date, each Grantor’s chief place of business and chief executive office, the place where such Grantor keeps its Records concerning Accounts and all originals of all Chattel Paper are located at the addresses specified therefor in Schedule V hereto. None of the Accounts is evidenced by Promissory Notes or other Instruments, except for those that have been delivered to Administrative Agent as required herein. Set forth in Schedule VI hereto is a complete and accurate list, as of the date of this Agreement, of each Deposit Account, Securities Account and Commodities Account of each Grantor, together with the name and address of each institution at which each such account is maintained, the account number for each such account and a description of the purpose of each such account. Set forth in Schedule I hereto is, as of the Closing Date, (i) a complete and correct list of each trade name used by each Grantor and (ii) the name of, and each trade name used by, each Person from which such Grantor has acquired any substantial part of the Collateral within five years prior to the date hereof.

 

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(d) As of the Closing Date, (i) Schedule II is a complete and accurate list of all registered United States federal Copyrights owned by any Grantor and all applications for registration of United States federal Copyrights owned by any Grantor; (ii) Schedule III provides a complete and accurate list of all issued United States federal Patents owned by any Grantor and all applications for United States federal Patents owned by any Grantor; and (iv) Schedule IV provides a complete and correct list of all United States federal registered Trademarks owned by any Grantor and all applications for registration of United States federal Trademarks owned by any Grantor.

(e) (i) (A) To the knowledge of each Grantor, such Grantor owns, or holds licenses in, or otherwise possesses rights in, all Intellectual Property that is necessary to the operation of its business as currently conducted, or (B) each Grantor is the sole and exclusive owner of the Intellectual Property set forth on Schedules II, III and IV (free and clear of any Liens other than Permitted Liens).

(ii) As of the Closing Date, except for those claims which could not reasonably be expected to result in a Material Adverse Effect, no claims with respect to the Intellectual Property rights of any Grantor are pending or, to the knowledge of any Grantor, threatened against any Grantor or, to the knowledge of any Grantor, any other Person, (i) alleging that the use of such Intellectual Property as now used by any Grantor infringes on any Intellectual Property of any third party, (ii) against the use by any Grantor or any third party of any technology, know-how or computer software used in any Grantor’s business as currently conducted or (iii) challenging the ownership by any Grantor, or the validity or effectiveness, of any such Intellectual Property.

(f) Except for those claims which would not reasonably be expected to result in a Material Adverse Effect, (i) no Grantor is infringing on any Intellectual Property of any third party and (ii) none of the Intellectual Property rights of any Grantor infringes on any Intellectual Property of any third party.

(g) All U.S. federal registered Copyrights, registered Trademarks, and issued Patents that are owned by such Grantor and necessary to the conduct of its business are valid, subsisting and enforceable, except as could not reasonably be expected to have a Material Adverse Effect.

(h) The Existing Issuers set forth in Schedule X identified as a Subsidiary of a Grantor are each such Grantor’s only Subsidiaries existing on the date hereof. The Pledged Shares have been duly authorized and validly issued and are fully paid and nonassessable (as applicable). Except as noted in Schedule X hereto, the Pledged Shares constitute 100% of the issued shares of Equity Interests of the Pledged Issuers as of the date hereof. All other shares of Equity Interests constituting Pledged Interests will be duly authorized and validly issued, fully paid and nonassessable (if applicable).

 

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(i) Other than that which has been obtained, no authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or any other Person, is required for (i) the grant by any Grantor of the security interest purported to be created hereby in the Collateral or (ii) the perfection of the security interest purported to be created hereby in the Collateral, except (A) for the filing under the Uniform Commercial Code as in effect in the applicable jurisdiction of the financing statements described in Schedule VII hereto, (B) with respect to the perfection of the security interest created hereby in the United States federal Intellectual Property, for the recording of the appropriate Grant of a Security Interest, substantially in the form of Exhibit B hereto in the United States Patent and Trademark Office or the United States Copyright Office, as applicable, (C) with respect to any action that may be necessary to obtain control of Collateral constituting Deposit Accounts, Electronic Chattel Paper, Investment Property or Letter-of-Credit Rights, the taking of such actions, and (D) Administrative Agent’s having possession of all Documents, Chattel Paper, Instruments and cash constituting Collateral (subclauses (A), (B), (C), and (D), each a “ Perfection Requirement ” and collectively, the “ Perfection Requirements ”). Notwithstanding the foregoing or this Agreement or any other Loan Document to the contrary, in no event shall any Grantor be required to make any filings or take any other actions to record or perfect the Administrative Agent’s security interest in any Collateral outside the United States or to reimburse the Administrative Agent for any costs or expenses incurred in connection with making such filings or taking any other such action.

(j) This Agreement constitutes a legal, valid and binding obligation of such Grantor against such Grantor in accordance with its terms, except: The compliance with the Perfection Requirements will result in the perfection of the Administrative Agent’s security interests in the Collateral (to the extent perfection may be achieved by performing such Perfection Requirements). Such security interests are, or in the case of Collateral in which any Grantor obtains rights after the date hereof, will be, perfected, first priority security interests, subject in priority only to the Permitted Liens.

(k) As of the date hereof, no Grantor holds any Commercial Tort Claims except for such claims described in Schedule VIII .

(l) As of the date hereof, with respect to each Grantor and its Subsidiaries that is a partnership or a limited liability company, no such Person has opted into (and no Grantor has caused any of its Subsidiaries that is a partnership or a limited liability company, and a Pledged Issuer to opt into) Article 8 of the Uniform Commercial Code.

SECTION 6. Covenants as to the Collateral . Until the Secured Obligations (whether or not due) are Paid in Full or any Lender shall have any Commitment under the Credit Agreement, unless Administrative Agent shall otherwise consent in writing:

(a) Further Assurances . Subject to the limitations set forth herein and in the other Loan Documents, each Grantor will at its expense, at any time and from time to time, promptly execute and deliver all further instruments and documents and take all further action that may be reasonably necessary or that Administrative Agent may reasonably request in order (i) to perfect and protect, or maintain the perfection of, the security interest and Lien purported to be created hereby; (ii) to enable Administrative Agent to exercise and enforce its rights and

 

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remedies hereunder in respect of the Collateral; or (iii) otherwise to effect the purposes of this Agreement, including, without limitation: (A) upon request by Administrative Agent, marking conspicuously all Chattel Paper or Instruments with a face value in excess of $1,500,000 and not previously delivered with a legend, in form and substance satisfactory to Administrative Agent, indicating that such Chattel Paper or Instrument is subject to the security interest created thereby, (B) if any Account shall be evidenced by a Promissory Note or other Instrument or Chattel Paper, with a value in excess of $1,500,000, delivering and pledging to Administrative Agent such Promissory Note, other Instrument or Chattel Paper, duly endorsed and accompanied by executed instruments of transfer or assignment, all in form and substance reasonably satisfactory to Administrative Agent, (C) executing and filing (to the extent, if any, that such Grantor’s signature is required thereon) or authenticating the filing of, such financing or continuation statements, or amendments thereto, (D) with respect to U.S. federal registrations or applications for registration of Intellectual Property owned by a Grantor hereafter existing and not covered by an appropriate security interest grant, executing and recording in the United States Patent and Trademark Office or the United States Copyright Office, as applicable, appropriate instruments granting a security interest, as may be necessary or desirable or that Administrative Agent may reasonably request in order to perfect and preserve the security interest purported to be created hereby, (E) delivering to Administrative Agent irrevocable proxies in respect of the Pledged Interests, (F) furnishing to Administrative Agent from time to time statements and schedules further identifying and describing the Collateral and such other reports in connection with the Collateral as Administrative Agent may reasonably request, all in reasonable detail, (G) if at any time after the date hereof, any Grantor acquires or holds any Commercial Tort Claim that exceeds $1,500,000 in the aggregate, promptly notifying Administrative Agent in a writing signed by such Grantor setting forth a brief description of such Commercial Tort Claim and granting to Administrative Agent a security interest therein and in the proceeds thereof, which writing shall incorporate the provisions hereof and shall be in form and substance reasonably satisfactory to Administrative Agent, and (H) subject to the terms of this Agreement, taking all actions required by law in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any foreign jurisdiction.

(b) Location of Equipment and Inventory . Each Grantor will keep the Equipment and Inventory (other than (1) Equipment and Inventory sold in the ordinary course of business, (2) Equipment or Inventory in transit or out for repair, (3) Equipment or Inventory in the possession of an employee of a Grantor in the Ordinary Course of Business (including laptops and cell phones) and (4) Equipment and Inventory with a value less than $500,000 in the aggregate), (i) at the locations specified in Schedule V hereto or, (ii) at such other locations as the Grantors may elect provided that with respect to clause (ii), Grantors shall deliver notice to Administrative Agent of such location accompanied by a revised Schedule V hereto within thirty (30) days (or such longer time as the Administrative Agent may permit in its discretion). If after the Closing Date any Grantor changes its chief place of business, chief executive office, the place where such Grantor keeps its Records concerning Accounts and all originals of all Chattel Paper to a location not specified on Schedule V , then within thirty (30) days of such change (or such longer time as the Administrative Agent may permit in its discretion) such Grantor shall give notice to the Administrative Agent of such change accompanied, if requested by Administrative Agent, by an updated Schedule V reflecting such change.

 

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(c) Provisions Concerning the Accounts . Each Grantor will, except as otherwise provided in this subsection (c) , continue to collect, at its own expense, all amounts due or to become due under the Accounts. Administrative Agent shall have the right at any time, upon the occurrence and during the continuance of an Event of Default, in consultation with such Grantor (unless an Event of Default under Section 8.01(a), 8.01(b) (solely with respect to the failure to perform or comply with Section 7.12 of the Credit Agreement) or 8.01(f) of the Credit Agreement has occurred and is continuing), to notify the Account Debtors or obligors under any Accounts of the assignment of such Accounts to Administrative Agent and to direct such Account Debtors or obligors to make payment of all amounts due or to become due to such Grantor thereunder directly to Administrative Agent or its designated agent and, upon such notification and at the expense of such Grantor and to the extent permitted by law, to enforce collection of any such Accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done (it being agreed and understood that any consultation with such Grantor is not a condition to Administrative Agent’s rights (and the exercise of such rights) hereunder and any failure by Administrative Agent to consult with such Grantor shall have no effect on Administrative Agent’s rights (and the exercise thereof) hereunder). After receipt by any Grantor of a notice from Administrative Agent that Administrative Agent has notified, intends to notify, or has enforced or intends to enforce a Grantor’s rights against the Account Debtors or obligors under any Accounts as referred to in the immediately preceding sentence, all amounts and proceeds (including Instruments) received by such Grantor in respect of the Accounts shall be received in trust for the benefit of Administrative Agent hereunder, shall be segregated from other funds of such Grantor and shall be promptly paid over to Administrative Agent or its designated agent in the same form as so received (with any necessary endorsement) to be held as cash collateral and applied as specified in Section 9(c) hereof.

(d) Provisions Concerning the Pledged Interests . Each Grantor will, at the Grantors’ joint and several expense, (i) defend Administrative Agent’s right, title and security interest in and to the Pledged Interests against the claims of any Person; (ii) not make or consent to any amendment or other modification or waiver with respect to any Pledged Interests that is materially adverse to the interests of the Lender Parties; and (iii) not vote the Pledged Interests the effect of which would impair the Collateral or be inconsistent with or result in any violation of any provision of any Loan Document.

(e) Intellectual Property .

1. Upon the reasonable request of Administrative Agent, in order to facilitate filings with the United States Patent and Trademark Office and the United States Copyright Office, each Grantor shall execute and deliver to Administrative Agent one or more copyright security agreements, trademark security agreements, or patent security agreements to further evidence Administrative Agent’s Lien on such Grantor’s U.S. federal Patents, Trademarks, or Copyrights.

2. Each Grantor shall have the duty, with respect to Intellectual Property that is necessary and material in the conduct of such Grantor’s business (as determined by such Grantor in its reasonable business judgment), to protect and enforce and defend at such Grantor’s expense the Intellectual Property owned by such Grantor,

 

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including (A) to enforce and defend, including, if appropriate, promptly suing for infringement, misappropriation or dilution, and filing for opposition, interference, and cancellation against conflicting Intellectual Property rights of any Person, (B) to prosecute any trademark application or service mark application that is part of the Trademarks owned by a Grantor pending as of the date hereof or hereafter until the termination of this Agreement, (C) to prosecute any patent application that is part of the Patents owned by a Grantor pending as of the date hereof or hereafter until the termination of this Agreement, and (D) to take all reasonable and necessary action to preserve and maintain all of such Grantor’s owned Trademarks, Patents, Copyrights, Licenses, and its rights therein, including paying all maintenance fees and filing of applications for renewal, affidavits of use, and affidavits of noncontestability. Each Grantor further agrees not to abandon any Intellectual Property or Intellectual Property License that is necessary and material in the conduct of such Grantor’s business (as determined by such Grantor in its reasonable business judgment). Each Grantor hereby agrees to take any steps that would be required by this Section 6(e)(2) with respect to all new or acquired Intellectual Property to which it or any of its Subsidiaries is now or later becomes an owner.

3. Grantors acknowledge and agree that the Lender Parties shall have no duties with respect to any Intellectual Property or Licenses of any Grantor. Without limiting the generality of this Section 6(e)(iii) , Grantors acknowledge and agree that no Lender Party shall be under any obligation to take any steps necessary to preserve rights in the Collateral consisting of Intellectual Property or Licenses against any other Person, but the Administrative Agent may do so at its option from and after the occurrence and during the continuance of an Event of Default, and all expenses incurred in connection therewith (including reasonable fees and expenses of attorneys and other professionals) shall be for the sole account of Borrowers and shall be chargeable to the Loan Account in accordance with Section 10.4 of the Credit Agreement.

4. On each date on which a Compliance Certificate is required to be delivered pursuant to the Credit Agreement, each Grantor shall provide Administrative Agent with a written report of all new United States Copyrights, federal Patents or Trademarks that are registered or the subject of pending applications for registrations, that are owned by a Grantor and material to the conduct of such Grantor’s business, in each case, which were acquired, registered, or for which applications for registration were filed by any Grantor during the prior period. In the case of such registrations or applications therefor, which were acquired by any Grantor, each such Grantor shall file the necessary documents with the appropriate Governmental Authority identifying the applicable Grantor as the owner (or as a co-owner thereof, if such is the case) of such Intellectual Property. In each of the foregoing cases, the applicable Grantor shall promptly cause to be prepared, executed, and delivered to Administrative Agent supplemental schedules to the applicable Loan Documents to identify such Copyrights, Patent and Trademark registrations and applications therefor.

5. No Grantor shall enter into any Intellectual Property License to receive any license or other use rights in any Intellectual Property of any other Person that are material to such Grantor’s business unless such Grantor has used commercially

 

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reasonable efforts to exclude from such License any provision that would prohibit the assignment of or grant of a security interest in such Intellectual Property License (and all rights of Grantor thereunder) to the Administrative Agent (and any transferees of Administrative Agent).

(f) Deposit, Commodities and Securities Accounts . After the date hereof, no Grantor shall maintain any new Deposit Account, Commodity Account or Securities Account unless the applicable Grantor has executed and delivered to Administrative Agent a Control Agreement with respect to such account within thirty (30) days (or such longer time as the Administrative Agent may permit in its discretion) of the opening of such account. The provisions of this Section 6(f) shall not apply to Excluded Accounts. Only upon the occurrence and during the continuance of an Event of Default, Administrative Agent may (in its sole and absolute discretion) direct any or all of the banks and financial institutions party to a Control Agreement to send immediately to Administrative Agent or its designated agent by wire transfer (to such account as Administrative Agent shall specify, or in such other manner as Administrative Agent shall direct) all or a portion of such securities, cash, investments and other items held by such institution. Any such securities, cash, investments and other items so received by Administrative Agent or its designated agent shall (in the sole and absolute discretion of Administrative Agent) be held as additional Collateral for the Secured Obligations subject to the terms hereof.

(g) Reserved .

(h) Control . Each Grantor hereby agrees to take any reasonable action that is necessary or that Administrative Agent may reasonably request in order for Administrative Agent to obtain control in accordance with the UCC with respect to the following Collateral: (i) Deposit Accounts and Securities Accounts (excluding Excluded Accounts), (ii) Electronic Chattel Paper, (iii) Investment Property and (iv) Letter-of-Credit Rights in each case of clauses (ii) to (iv), to the extent the same has a value in excess of $250,000 in the aggregate for each such category. Each Grantor hereby acknowledges and agrees that any agent or designee of Administrative Agent shall be deemed to be a “secured party” with respect to the Collateral under the control of such agent or designee for all purposes.

(i) Organizational Changes . Except as otherwise expressly permitted by Section 7.04 or 7.05 of the Credit Agreement, no Grantor shall, without giving Administrative Agent notice within thirty (30) days of such action, change (A) its legal name, identity or organizational structure, (B) its jurisdiction of incorporation or organization as set forth in Schedule I hereto or (C) its chief executive office as set forth in Schedule V hereto.

(j) Partnership and Limited Liability Company Interest . Except with respect to partnership interests and membership interests evidenced by a certificate, which certificate has been pledged and delivered to Administrative Agent pursuant to Section 4 hereof, no Grantor that is a partnership or a limited liability company shall, nor shall any Grantor with any Subsidiary that is a Pledged Issuer and that is a partnership or a limited liability company, permit such partnership interests or membership interests to (i) be dealt in or traded on securities exchanges or in securities markets, (ii) become a security for purposes of Article 8 of any relevant Uniform Commercial Code, (iii) become an investment company security within the

 

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meaning of Section 8-103 of any relevant Uniform Commercial Code or (iv) be evidenced by a certificate, in each case, without giving the Administrative Agent five (5) days (or such longer time period as the Administrative Agent shall permit) written notice from the time thereof which, with respect to clause (iv), such certificate shall be delivered to Administrative Agent upon request of Administrative Agent. Notwithstanding anything in this Agreement to the contrary, with respect to any Grantor that is a partnership or limited liability company or any Grantor with any Subsidiary that is a Pledged Issuer and that is a partnership or a limited liability company, such Grantor or such Subsidiary, as applicable, if (i) the aggregate gross book value of all property and assets of such Grantor or Subsidiary, as applicable, exceeds fifteen percent (15%) of the aggregate gross book value of the total consolidated property and assets of the Loan Parties and their Subsidiaries or (ii) the aggregate gross revenue of such Grantor or Subsidiary, as applicable, exceeds fifteen percent (15%) of the consolidated aggregate gross revenue of the Loan Parties and their Subsidiaries, then, in each case, such Grantor or Subsidiary, as applicable, shall promptly after it exceeds either threshold set forth in the preceding clauses (i) or (ii), (x) amend its Organization Documents, in form and substance reasonably acceptable to Administrative Agent, to opt in to Article 8 of the Uniform Commercial Code, (y) cause its partnership interests or membership interests, as applicable, to be evidenced by a certificate and (z) deliver such certificate to Administrative Agent in accordance with Section 4 hereof.

SECTION 7. Voting Rights, Dividends, Etc. in Respect of the Pledged Interests .

(a) Except as otherwise set forth in Section 7(b) below:

1. each Grantor may exercise any and all voting and other consensual rights pertaining to any Pledged Interests for any purpose not inconsistent with the terms of this Agreement, the Credit Agreement or the other Loan Documents; and

2. each of the Grantors may receive and retain any and all dividends, interest or other distributions paid in respect of the Pledged Interests to the extent permitted by the Credit Agreement; provided , however , that any and all (A) dividends and interest paid or payable other than in cash in respect of, and Instruments and other property received, receivable or otherwise distributed in respect of or in exchange for, any Pledged Interests, (B) dividends and other distributions paid or payable in cash in respect of any Pledged Interests in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid-in surplus, and (C) cash paid, payable or otherwise distributed in redemption of, or in exchange for, any Pledged Interests, together with any dividend, interest or other distribution or payment which in the case of each of clauses (A), (B), and (C) at the time of such payment was not permitted by the Credit Agreement, shall be, and shall promptly be delivered to Administrative Agent, to hold as, Pledged Interests and shall, if received by any of the Grantors, be received in trust for the benefit of Administrative Agent, shall be segregated from the other property or funds of the Grantors, and shall be promptly delivered to Administrative Agent in the exact form received with any necessary indorsement and/or appropriate stock powers duly executed in blank, to be held by Administrative Agent as Pledged Interests and as further collateral security for the Secured Obligations; and

 

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3. Administrative Agent will execute and deliver (or cause to be executed and delivered) to a Grantor all such proxies and other instruments as such Grantor may reasonably request for the purpose of enabling such Grantor to exercise the voting and other rights which it is entitled to exercise pursuant to Section 7(a)(1) hereof and to receive the dividends, interest and/or other distributions which it is authorized to receive and retain pursuant to Section 7(a)(2) hereof.

(b) Upon the occurrence and during the continuance of an Event of Default:

1. at the election of Administrative Agent and upon written notice, all rights of each Grantor to exercise the voting and other consensual rights which it would otherwise be entitled to exercise pursuant to Section 7(a)(1) hereof, and to receive the dividends, distributions, interest and other payments that it would otherwise be authorized to receive and retain pursuant to Section 7(a)(2) hereof unless otherwise explicitly permitted under the Credit Agreement, shall cease, and at the election of Administrative Agent, all such rights shall thereupon become vested in Administrative Agent, which shall thereupon have the sole right to exercise such voting and other consensual rights and to receive and hold as Pledged Interests such dividends, distributions and interest payments;

2. Administrative Agent is authorized to notify each debtor with respect to the Pledged Debt to make payment directly to Administrative Agent (or its designee) and may collect any and all moneys due or to become due to any Grantor in respect of the Pledged Debt, and each of the Grantors hereby authorizes each such debtor to make such payment directly to Administrative Agent (or its designee) without any duty of inquiry;

3. without limiting the generality of the foregoing, but subject to any notice requirement herein, Administrative Agent may at its option exercise any and all rights of conversion, exchange, subscription or any other rights, privileges or options pertaining to any of the Pledged Interests as if it were the absolute owner thereof, including, without limitation, the right to exchange, in its discretion, any and all of the Pledged Interests upon the merger, consolidation, reorganization, recapitalization or other adjustment of any Pledged Issuer, or upon the exercise by any Pledged Issuer of any right, privilege or option pertaining to any Pledged Interests, and, in connection therewith, to deposit and deliver any and all of the Pledged Interests with any committee, depository, transfer agent, registrar or other designated agent upon such terms and conditions as it may determine; and

4. all dividends, distributions, interest and other payments that are received by any of the Grantors contrary to the provisions of Section 7(b)(1) hereof shall be received in trust for the benefit of Administrative Agent, shall be segregated from other funds of the Grantors, and shall be promptly paid over to Administrative Agent as Pledged Interests in the exact form received with any necessary indorsement and/or appropriate stock powers duly executed in blank, to be held by Administrative Agent as Pledged Interests and as further collateral security for the Secured Obligations.

 

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5. if any Grantor shall receive, by virtue of such Grantor’s being or having been an owner of any Pledged Interests, any property in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid-in surplus, such Grantor shall receive such option, right, payment or distribution in trust for the benefit of Administrative Agent, shall segregate it from such Grantor’s other property and shall deliver it forthwith to Administrative Agent, in the exact form received, to be held by Administrative Agent as Pledged Interests and as further collateral security for the Secured Obligations.

SECTION 8. Additional Provisions Concerning the Collateral.

(a) Each Grantor hereby (i) authorizes Administrative Agent at any time and from time to time to file, one or more financing or continuation statements and amendments thereto, relating to the Collateral (including, without limitation, any such financing statements that (A) describe the Collateral as “all assets” or “all personal property” (or words of similar effect) or that describe or identify the Collateral by type or in any other manner as Administrative Agent may determine, regardless of whether any particular asset of such Grantor falls within the scope of Article 9 of the UCC or whether any particular asset of such Grantor constitutes part of the Collateral, and (B) contain any other information required by Part 5 of Article 9 of the UCC for the sufficiency or filing office acceptance of any financing statement, continuation statement or amendment, including, without limitation, whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor) and (ii) ratifies such authorization to the extent that Administrative Agent has filed any such financing statements, continuation statements, or amendments thereto, prior to the date hereof. A photocopy or other reproduction of this Agreement or any financing statement covering the Collateral or any part thereof shall be sufficient as a financing statement where permitted by law.

(b) Each Grantor hereby irrevocably appoints Administrative Agent as its attorney-in-fact and proxy, with full authority and power of substitution in the place and stead of such Grantor and in the name of such Grantor or otherwise, from time to time in Administrative Agent’s discretion during the continuance of an Event of Default, to take any action and to execute any instrument that Administrative Agent may deem necessary or advisable to accomplish the purposes of this Agreement (subject to the rights of a Grantor under Section 7(a) hereof), including, without limitation, (i) to obtain and adjust insurance required to be paid to Administrative Agent pursuant to the Credit Agreement, (ii) to ask, demand, collect, sue for, recover, compound, receive and give acquittance and receipts for moneys due and to become due under or in respect of any Collateral, (iii) to receive, endorse, and collect any drafts or other Instruments, Documents and Chattel Paper in connection with clause (i) or (ii) above, (iv) to receive, indorse and collect all Instruments made payable to such Grantor representing any dividend, interest payment or other distribution in respect of any Pledged Interests and to give full discharge for the same, (v) to file any claims or take any action or institute any proceedings which Administrative Agent may deem necessary or desirable for the collection of any Collateral or otherwise to enforce the rights of Administrative Agent and the Lender Parties with respect to any Collateral, (vi) to execute assignments, licenses and other documents to enforce the rights of Administrative Agent and the Lender Parties with respect to any Collateral, (vii) to pay or discharge taxes or Liens levied or placed upon or threatened against the Collateral, the legality or

 

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validity thereof and the amounts necessary to discharge the same to be determined by Administrative Agent in its discretion, and such payments made by Administrative Agent to become Obligations of such Grantor to Administrative Agent, due and payable in accordance with Section 10.4 of the Credit Agreement, (viii) to sign and endorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, assignments, verifications and notices in connection with Accounts, Chattel Paper and other documents relating to the Collateral, and (ix) subject to any notice requirement herein, with respect to Pledged Interests, to exercise the voting (at meetings and by consent) and other rights set forth in Section 7 hereof or elsewhere herein (including rights of sale). THIS POWER AND PROXY IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE UNTIL THE DATE ON WHICH ALL OF THE SECURED OBLIGATIONS HAVE BEEN PAID IN FULL (AS DEFINED IN THE CREDIT AGREEMENT) AFTER THE TERMINATION OF EACH LENDER’S COMMITMENT AND EACH OF THE LOAN DOCUMENTS. THIS POWER AND PROXY SHALL BE EFFECTIVE AUTOMATICALLY AND WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY INVESTMENT PROPERTY ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON (INCLUDING THE ISSUER OF THE INVESTMENT PROPERTY OR ANY OFFICER OR AGENT THEREOF). Each Grantor ratifies all actions taken by the Administrative Agent pursuant to this power and proxy granted. All prior proxies granted by any Grantor with respect to the subject matter hereof are hereby revoked.

(c) For the purpose of enabling Administrative Agent to exercise rights and remedies hereunder, at such time as Administrative Agent shall be lawfully entitled to exercise such rights and remedies, and for no other purpose, each Grantor hereby (i) grants to Administrative Agent an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Grantor) to use, assign, license or sublicense any Intellectual Property now or hereafter owned by any Grantor, wherever the same may be located, including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout thereof; and (ii) assigns to Administrative Agent, to the extent assignable, all of its rights to any Intellectual Property now or hereafter licensed or used by any Grantor. Notwithstanding anything contained herein to the contrary, but subject to the provisions of the Credit Agreement that limit the right of a Grantor to dispose of its property and Section 6(e) hereof, so long as no Event of Default shall have occurred and be continuing, each Grantor may exploit, use, enjoy, protect, license, sublicense, assign, sell, dispose of or take other actions with respect to the Intellectual Property in the ordinary course of its business. Upon the date on which all of the Secured Obligations have been Paid in Full, after the termination of the Loan Documents, all of Administrative Agent’s right, title and interest in and to the Intellectual Property, and the Licenses shall be automatically released and reassigned to the Grantors, all without recourse, representation or warranty whatsoever and at the Grantors’ sole expense. The exercise of rights and remedies hereunder by Administrative Agent shall not terminate the rights of the holders of any licenses or sublicenses theretofore granted by any Grantor in accordance with the second sentence of this clause (d). Each Grantor hereby releases Administrative Agent from any claims, causes of action and demands at any time arising out of or with respect to any actions taken or omitted to be taken by Administrative Agent under the powers of attorney granted herein other than actions taken or omitted to be taken through Administrative Agent’s gross negligence, bad faith or willful misconduct, as determined by a final determination of a court of competent jurisdiction.

 

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(d) If any Grantor fails to perform any agreement or obligation contained herein, Administrative Agent may itself perform, or cause performance of, such agreement or obligation, in the name of such Grantor or Administrative Agent, and the expenses of Administrative Agent incurred in connection therewith shall be jointly and severally payable by the Grantors pursuant to Section 10.04 of the Credit Agreement and shall be secured by the Collateral.

(e) The powers conferred on Administrative Agent hereunder are solely to protect its interest in the Collateral and shall not impose any duty (fiduciary or otherwise) upon it to exercise any such powers. Other than the exercise of reasonable care to assure the safe custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder, Administrative Agent shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral and shall be relieved of all responsibility for any Collateral in its possession upon surrendering it or tendering surrender of it to any of the Grantors (or whomsoever shall be lawfully entitled to receive the same or as a court of competent jurisdiction shall direct). Administrative agent shall be deemed to have exercised reasonable care in the custody and preservation of any Collateral in its possession if such Collateral is accorded treatment substantially equal to that which Administrative Agent accords its own property, it being understood that Administrative Agent shall not have responsibility for ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to any Collateral, whether or not Administrative Agent has or is deemed to have knowledge of such matters. Administrative agent shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any warehouseman, carrier, forwarding agency, consignee or other agent or bailee selected by Administrative Agent in good faith.

(f) Anything herein to the contrary notwithstanding (i) each Grantor shall remain liable under the Licenses and otherwise in respect of the Collateral to the extent set forth therein to perform all of its obligations thereunder to the same extent as if this Agreement had not been executed, (ii) the exercise by Administrative Agent of any of its rights hereunder shall not release any Grantor from any of its obligations under the Licenses or otherwise in respect of the Collateral, and (iii) Administrative Agent shall not have any obligation or liability by reason of this Agreement under the Licenses or otherwise in respect of the Collateral, nor shall Administrative Agent be obligated to perform any of the obligations or duties of any Grantor thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.

(g) Administrative agent may at any time in its discretion so long as an Event of Default has occurred and is continuing (i) upon written notice to any Grantor, transfer or register in the name of Administrative Agent or any of its nominees any or all of the Pledged Interests, subject only to the revocable rights of such Grantor under Section 7(a) hereof, and (ii) exchange certificates or Instruments constituting Pledged Interests for certificates or Instruments of smaller or larger denominations.

 

19


SECTION 9. Remedies Upon Default . If any Event of Default shall have occurred and be continuing:

(a) Administrative Agent may exercise in respect of the Collateral, in addition to any other rights and remedies provided for herein or otherwise available to it, all of the rights and remedies of a secured party upon default under the UCC (whether or not the UCC applies to the affected Collateral), and also may (i) subject to any notice requirement herein, take control of the Collateral, including, without limitation, transfer into Administrative Agent’s name or into the name of its nominee or nominees (to the extent Administrative Agent has not theretofore done so) and thereafter receive, for the benefit of Administrative Agent and the Lender Parties, all payments made thereon, give all consents, waivers and ratifications in respect thereof and otherwise act with respect thereto as though it were the outright owner thereof, (ii) require each Grantor to, and each Grantor hereby agrees that it will, at its expense and upon request of Administrative Agent promptly, assemble all or part of the Collateral as directed by Administrative Agent and make it available to Administrative Agent at a place or places to be designated by Administrative Agent that is reasonably convenient to both parties, and Administrative Agent may enter into and occupy any premises owned or leased by any Grantor where the Collateral or any part thereof is located or assembled for a reasonable period in order to effectuate Administrative Agent’s rights and remedies hereunder or under law, without obligation to any Grantor in respect of such occupation, and (iii) without notice except as specified below or elsewhere herein and without any obligation to prepare or process the Collateral for sale, (A) sell the Collateral or any part thereof in one or more parcels at public or private sale, at any of Administrative Agent’s offices, at any exchange or broker’s board or elsewhere, for cash, on credit or for future delivery, and at such price or prices and upon such other terms as Administrative Agent may reasonably deem commercially reasonable and/or (B) lease, license or otherwise dispose of the Collateral or any part thereof upon such terms as Administrative Agent may reasonably deem commercially reasonable. Each Grantor agrees that, to the extent notice of sale or any other disposition of the Collateral shall be required by law, at least ten (10) business days’ prior notice to the applicable Grantor of the time and place of any public sale or the time after which any private sale or other disposition of the Collateral is to be made shall constitute reasonable notification. Administrative Agent shall not be obligated to make any sale or other disposition of Collateral regardless of notice of sale having been given. Administrative Agent may adjourn any public or private sale from time to time by announcement prior to or at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Grantor hereby waives (to the extent permitted by applicable law), any claims against Administrative Agent and the Lender Parties arising by reason of the fact that the price at which the Collateral may have been sold at a private sale was less than the price which might have been obtained at a public sale or was less than the aggregate amount of the Secured Obligations, even if Administrative Agent accepts the first offer received and does not offer the Collateral to more than one offeree, and waives (to the extent permitted by applicable law) all rights that such Grantor may have to require that all or any part of the Collateral be marshaled upon any sale (public or private) hereof. Each Grantor hereby acknowledges that (i) any such sale of the Collateral by Administrative Agent shall be made without warranty, (ii) Administrative Agent may specifically disclaim any warranties of title, possession, quiet enjoyment or the like, (iii) Administrative Agent may bid (which bid may be, in whole or in part, in the form of cancellation of indebtedness), if permitted by law, for the purchase, lease, license or other disposition of the Collateral or any portion thereof for the

 

20


account of Administrative Agent (on behalf of itself and the Lender Parties) and (iv) such actions set forth in clauses (i), (ii) and (iii) above shall not adversely affect the commercial reasonableness of any such sale of the Collateral. In addition to the foregoing, (i) upon written notice to any Grantor from Administrative Agent, each Grantor shall cease any use of the Intellectual Property or any trademark, patent or copyright similar thereto for any purpose described in such notice; (ii) Administrative Agent may, at any time and from time to time, upon ten (10) days’ prior notice to any Grantor, license, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any of the Intellectual Property, throughout the universe for such term or terms, on such conditions, and in such manner, as Administrative Agent shall in its reasonable discretion determine; and (iii) Administrative Agent may, at any time, pursuant to the authority granted in Section 8 hereof (such authority being effective upon the occurrence and during the continuance of an Event of Default), execute and deliver on behalf of a Grantor, one or more instruments of assignment of the Intellectual Property (or any application or registration thereof), in form suitable for filing, recording or registration in any country.

(b) Each Grantor recognizes that Administrative Agent may deem it impracticable to effect a public sale of all or any part of the Pledged Shares or any other securities constituting Pledged Interests and that Administrative Agent may, therefore, determine to make one or more private sales of any such securities to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges that any such private sale may be at prices and on terms less favorable to the seller than the prices and other terms which might have been obtained at a public sale and, notwithstanding the foregoing, agrees that such private sales shall be deemed to have been made in a commercially reasonable manner and that Administrative Agent shall have no obligation to delay the sale of any such securities for the period of time necessary to permit the issuer of such securities to register such securities for public sale under the Securities Act. Each Grantor further acknowledges and agrees that any offer to sell such securities which has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New York, New York (to the extent that such an offer may be so advertised without prior registration under the Securities Act) or (ii) made privately in the manner described above to not less than fifteen bona fide offerees shall be deemed to involve a “public disposition” for the purposes of Section 9-610(c) of the UCC (or any successor or similar, applicable statutory provision) as then in effect in the State of New York, notwithstanding that such sale may not constitute a “public offering” under the Securities Act, and that Administrative Agent may, in such event, bid for the purchase of such securities.

(c) Any cash held by Administrative Agent (or its agent or designee) as Collateral and all cash Proceeds received by Administrative Agent (or its agent or designee) in respect of any sale of or collection from, or other realization upon, all or any part of the Collateral may, in the discretion of Administrative Agent, be held by Administrative Agent (or its agent or designee) as collateral for, and/or then or at any time thereafter applied (after payment of any amounts payable to Administrative Agent pursuant to the Loan Documents) inwhole or in part by Administrative Agent against, all or any part of the Secured Obligations in such order as Administrative Agent shall elect, consistent with the provisions of the Credit Agreement. Any surplus of such cash or cash Proceeds held by Administrative Agent (or its

 

21


agent or designee) and remaining after the date on which all of the Secured Obligations have been Paid in Full after the termination of each Lender’s Commitment and each of the Loan Documents, shall be paid over to whomsoever shall be lawfully entitled to receive the same (as reasonably determined by Administrative Agent) or as a court of competent jurisdiction shall direct.

(d) In the event that the proceeds of any such sale, collection or realization are insufficient to pay all amounts to which Administrative Agent and the Lender Parties are legally entitled, the Grantors shall be jointly and severally liable for the deficiency, together with interest thereon at the highest rate specified in any applicable Loan Document for interest on overdue principal thereof or such other rate as shall be fixed by applicable law, together with the costs of collection and the reasonable fees, costs, expenses and other client charges of any attorneys employed by Administrative Agent to collect such deficiency in accordance with Section 10.04 of the Credit Agreement.

(e) Each Grantor hereby acknowledges that if Administrative Agent complies with any applicable requirements of law in connection with a disposition of the Collateral, such compliance will not adversely affect the commercial reasonableness of any sale or other disposition of the Collateral.

(f) Administrative agent shall not be required to marshal any present or future collateral security for, or other assurances of payment of, the Secured Obligations or any of them or to resort to such collateral security or other assurances of payment in any particular order, and all of Administrative Agent’s rights hereunder and in respect of such collateral security and other assurances of payment shall be cumulative and in addition to all other rights, however existing or arising. To the extent that any Grantor lawfully may, such Grantor hereby agrees that it will not invoke any law relating to the marshalling of collateral which might cause delay in or impede the enforcement of Administrative Agent’s rights under this Agreement or under any other instrument creating or evidencing any of the Secured Obligations or under which any of the Secured Obligations is outstanding or by which any of the Secured Obligations is secured or payment thereof is otherwise assured, and, to the extent that it lawfully may, each Grantor hereby irrevocably waives the benefits of all such laws.

SECTION 10. Notices, Etc. All notices and other communications provided for hereunder shall be given in accordance with the notice provision of the Credit Agreement.

SECTION 11. Security Interest Absolute; Joint and Several Obligations.

(a) All rights of the Lender Parties, all Liens and all obligations of each of the Grantors hereunder shall be absolute and unconditional irrespective of (i) any lack of validity or enforceability of the Credit Agreement or any other Loan Document, (ii) any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Secured Obligations, or any other amendment or waiver of or consent to any departure from the Credit Agreement or any other Loan Document, (iii) any exchange or release of, or non-perfection of any Lien on any Collateral, or any release or amendment or waiver of or consent to departure from any guaranty, for all or any of the Secured Obligations, or (iv) any other circumstance that might otherwise constitute a defense available to (other than defense of payment), or a discharge

 

22


of, any of the Grantors in respect of the Secured Obligations. All authorizations and agencies contained herein with respect to any of the Collateral are irrevocable and powers coupled with an interest during the term of this Agreement.

(b) Each Grantor hereby waives, to the extent permitted by applicable law, (i) promptness and diligence, (ii) notice of acceptance and notice of the incurrence of any Obligation by any of the Borrowers, (iii) except as explicitly required herein or in any other Loan Document, notice of any actions taken by the Administrative Agent, any other Lender Party, any Guarantor or any other Person under any Loan Document or any other agreement, document or instrument relating thereto, (iv) all other notices, demands and protests, and all other formalities of every kind in connection with the enforcement of the Obligations, the omission of or delay in which, but for the provisions of this subsection (b) , might reasonably constitute grounds for relieving such Grantor of any such Grantor’s obligations hereunder and (v) any requirement that Administrative Agent or any other Lender Party protect, secure, perfect or insure any security interest or other lien on any property subject thereto or exhaust any right or take any action against any Grantor or any other Person or any Collateral.

(c) All of the obligations of the Grantors hereunder are joint and several. Administrative agent may, in its sole and absolute discretion, enforce the provisions hereof against any of the Grantors and shall not be required to proceed against all Grantors jointly or seek payment from the Grantors ratably. In addition, Administrative Agent may, in its sole and absolute discretion, select the Collateral of any one or more of the Grantors for sale or application to the Secured Obligations, without regard to the ownership of such Collateral, and shall not be required to make such selection ratably from the Collateral owned by all of the Grantors. The release or discharge of any Grantor by Administrative Agent shall not release or discharge any other Grantor from the obligations of such Person hereunder.

SECTION 12. Miscellaneous.

(a) No amendment of any provision of this Agreement shall be effective unless it is in writing and signed by each Grantor affected thereby and Administrative Agent, and no waiver of any provision of this Agreement, and no consent to any departure by any Grantor therefrom, shall be effective unless it is in writing and signed by Administrative Agent, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

(b) No failure on the part of the Administrative Agent to exercise, and no delay in exercising, any right hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The rights and remedies of the Lender Parties provided herein and in the other Loan Documents are cumulative and are in addition to, and not exclusive of, any rights or remedies provided by law. The rights of the Lender Parties under any Loan Document against any party thereto are not conditional or contingent on any attempt by such Person to exercise any of its rights under any other Loan Document against such party or against any other Person, including but not limited to, any Grantor.

 

23


(c) This Agreement shall create a continuing security interest in the Collateral and shall (i) remain in full force and effect, subject to paragraphs (d) and (e) below, until the date on which all of the Secured Obligations have been Paid in Full and (ii) be binding on each Grantor and all other Persons who become bound as debtor to this Agreement in accordance with Section 9-203(d) of the UCC, and shall inure, together with all rights and remedies of the Lender Parties hereunder, to the benefit of the Lender Parties and their respective successors, transferees and permitted assigns. Without limiting the generality of clause (ii) of the immediately preceding sentence, the Administrative Agent may assign or otherwise transfer its respective rights and obligations under this Agreement and any other Loan Document to any other Person pursuant to the terms of the Credit Agreement, and such other Person shall thereupon become vested with all of the benefits in respect thereof granted to the Administrative Agent herein or otherwise. Upon any such assignment or transfer, all references in this Agreement to Administrative Agent shall mean the permitted assignee of such Person. None of the rights or obligations of any Grantor hereunder may be assigned or otherwise transferred except as explicitly permitted under the Credit Agreement.

(d) Upon the date on which all of the Secured Obligations have been Paid in Full (i) subject to paragraph (e) below, this Agreement and the security interests, licenses and Liens created hereby shall automatically terminate and all rights to the Collateral shall revert to the Grantors and (ii) Administrative Agent will, upon the Grantors’ request and at the Grantors’ expense, without any representation, warranty or recourse whatsoever, (A) promptly return to the Grantors (or whomsoever shall be lawfully entitled to receive the same or as a court of competent jurisdiction shall direct) such of the Collateral as shall not have been sold or otherwise disposed of or applied pursuant to the terms hereof and (B) execute and deliver to the Grantors such documents as the Grantors shall reasonably request to evidence such termination. In addition, upon the sale or other disposition of any Collateral to any Person (other than a Grantor) explicitly permitted under the terms of the Credit Agreement or to which the Required Lenders have otherwise consented, such Collateral shall be automatically released and, upon a sale or disposition of a Grantor, in each case, explicitly permitted under the Credit Agreement, such Grantor shall be automatically released from this Agreement and all obligations of such Grantor and all Liens over such Grantor’s Equity Interests and property of such Grantor will terminate and be automatically released, and the Administrative Agent, at the Grantor’s expense, shall execute and deliver such documents, instruments, notices and releases of its security interest in such Collateral and/or such Grantor as may be reasonably requested by such Grantor.

(e) Without limiting comparable provisions of the Credit Agreement, this Agreement shall remain in full force and effect and continue to be effective should any petition be filed by or against any Grantor for liquidation or reorganization, should any Grantor become insolvent or make an assignment for the benefit of any creditor or creditors or should a receiver or trustee be appointed for all or any significant part of any Grantor’s assets, and shall continue to be effective or be reinstated, as the case may be, if at any time payment or performance of the Secured Obligations, or any part thereof, is, pursuant to applicable law (or any settlement agreement), rescinded or reduced in amount, or must otherwise be restored or returned by any obligee of the Secured Obligations, whether as a “voidable preference,” “fraudulent conveyance,” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Secured Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

 

24


(f) Upon the execution and delivery, or authentication, by any Person of a security agreement supplement in substantially the form of Exhibit C hereto (each a “ Security Agreement Supplement ”), (i) such Person shall be referred to as an “ Additional Grantor ” and shall be and become a Grantor, and each reference in this Agreement to “Grantor” shall also mean and be a reference to such Additional Grantor, and each reference in this Agreement and the other Loan Documents to “Collateral” shall also mean and be a reference to the Collateral of such Additional Grantor, and (ii) the supplemental Schedules I-X attached to each Security Agreement Supplement shall be incorporated into and become a part of and supplement Schedules I-X , respectively, hereto, and Administrative Agent may attach such Schedules as supplements to such Schedules, and each reference to such Schedules shall mean and be a reference to such Schedules, as supplemented pursuant hereto.

(g) THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE VALIDITY AND PERFECTION OR THE PERFECTION AND THE EFFECT OF PERFECTION OR NON-PERFECTION OF THE SECURITY INTEREST CREATED HEREBY, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAW OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.

(h) In addition to and without limitation of any of the foregoing, this Agreement shall be deemed to be a Loan Document and shall otherwise be subject to all of terms and conditions contained in Sections 10.14 and 10.15 of the Credit Agreement, mutatis mutandi.

(i) Each of the Grantors and the Administrative Agent irrevocably and unconditionally waives any right it may have to claim or recover in any legal action, suit or proceeding with respect to this Agreement any special, exemplary, punitive or consequential damages.

(j) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or thereof or affecting the validity or enforceability of such provision in any other jurisdiction.

(k) Section headings herein are included for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

(l) This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which shall be deemed an original, but all of such counterparts taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by facsimile or electronic mail shall be equally effective as delivery of an original executed counterpart.

 

25


[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

 

26


IN WITNESS WHEREOF, Grantor and Administrative Agent have caused this Agreement to be executed and delivered by its officer thereunto duly authorized, as of the date first above written.

 

GRANTOR :
J.A. COSMETICS HOLDINGS, INC.
By:  

/s/ Frank Pisani

Name:   Frank Pisani
Title:   Vice President


ADMINISTRATIVE AGENT :

 

BANK OF MONTREAL,

as Administrative Agent

By:  

/s/ Tara Cuprisin

Name:   Tara Cuprisin
Title:   Director


EXHIBIT A

PLEDGE AMENDMENT

This Pledge Amendment, dated               ,          , is delivered pursuant to Section 4 of the Security Agreement referred to below. The undersigned hereby agrees that this Pledge Amendment may be attached to the Pledge and Security Agreement, dated January 31, 2014, as it may heretofore have been or hereafter may be amended, restated, supplemented, modified or otherwise changed from time to time (the “ Security Agreement ”) and that the promissory notes or shares listed on this Pledge Amendment are hereby pledged and assigned to Administrative Agent and become part of the Pledged Interests referred to in such Security Agreement and shall secure all of the Secured Obligations referred to in such Security Agreement.

Pledged Debt

 

Grantor

 

Name of Maker

 

Description

 

Principal Amount

Outstanding as of

     
     

Pledged Shares

 

Grantor

 

Name of

Pledged Issuer

 

Number

Shares

 

Percentage of

Outstanding

Shares

 

Class

 

Certificate

Number

         
         

 

[GRANTOR]
By:  

 

Name:  

 

Title:  

 

 

BANK OF MONTREAL,
as Administrative Agent
By:  

 

Name:  

 

Title:  

 

 

Exhibit A-1


EXHIBIT B

GRANT OF A SECURITY INTEREST – [TRADEMARKS] (COPYRIGHTS] [PATENTS]

This [Trademark] [Copyright] [Patent] Security Agreement (this “ [Trademarkl [Copyright][Patent] Security Agreement ”) is made as of              , 20      , by                      (“ Grantor ”), in favor of BANK OF MONTREAL, in its capacity as Administrative Agent for itself and the other Lender Parties (together with its successors and permitted assigns in such capacity, “ Grantee ”).

WHEREAS, the Grantor [has adopted, used and is using, and holds all right, title and interest in and to, the trademarks and service marks listed on the attached Schedule A , which trademarks and service marks are registered or applied for in the United States Patent and Trademark Office (the “ Trademarks ”)] [holds all right, title and interest in the letter patents, design patents and utility patents listed on the attached Schedule A , which patents are issued or applied for in the United States Patent and Trademark Office (the “ Patents ”)] [holds all right, title and interest in the copyrights listed on the attached Schedule A , which copyrights are registered in the United States Copyright Office (the “ Copyrights ”)];

WHEREAS, the Grantor has entered into a Pledge and Security Agreement, dated January 31, 2014 (as amended, restated, supplemented, modified or otherwise changed from time to time, the “ Security Agreement ”), in favor of Grantee; and

WHEREAS, pursuant to the Security Agreement, the Grantor has granted to the Grantee for the benefit of the Lender Parties (as defined in the Security Agreement), a continuing security interest in all right, title and interest of the Grantor in, to and under the [Trademarks, together with, among other things, the goodwill of the business symbolized by the Trademarks] [Patents] [Copyrights] and the applications and registrations thereof, and all proceeds thereof, including, without limitation, any and all causes of action which may exist by reason of infringement thereof and any and all damages arising from past, present and future violations thereof (the “Collateral”), to secure the payment, performance and observance of the Secured Obligations (as defined in the Security Agreement).

NOW, THEREFORE, as collateral security for the payment, performance and observance of all of the Secured Obligations, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantor does hereby grant to the Grantee and grant to the Grantee for the benefit of the Lender Parties, a continuing security interest in the Collateral to secure the prompt payment, performance and observance of the Secured Obligations. Notwithstanding the foregoing, no grant of any Lien or security interest shall be deemed granted hereunder on or in any “intent to use” Trademark application for which a Statement of Use or Amendment to Allege Use, as applicable, has not been filed and accepted with the U.S. Patent and Trademark Office.

All capitalized terms used but not otherwise defined herein have the meanings given to them in the Security Agreement.

 

Exhibit B-1


The Grantor does hereby further acknowledge and affirm that the rights and remedies of the Grantee with respect to the Collateral are more fully set forth in the Security Agreement, the terms and provisions of which are hereby incorporated herein by reference as if fully set forth herein. In the event that of any conflict between the terms of this [Trademark] [Copyright] [Patent] Agreement and the Security Agreement, the terms of the Security Agreement shall control.

This [Trademark] [Copyright] [Patent] Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart by facsimile or electronic mail shall be equally effective as delivery of an original executed counterpart.

[Remainder of page intentionally left blank]

 

Exhibit B-2


IN WITNESS WHEREOF, the Grantor has caused this [Trademark] [Copyright] [Patent] Security Agreement to be duly executed by its officer thereunto duly authorized as of the date first set forth above.

 

[GRANTOR]
By:  

 

Name:  

 

Title:  

 

 

Exhibit B-3


SCHEDULE A TO GRANT OF A SECURITY INTEREST

[Trademark Registrations and Applications]

[Patents and Patent Applications]

[Copyright Registrations and Applications]


EXHIBIT C

FORM OF SECURITY AGREEMENT SUPPLEMENT

[Date of Security Agreement Supplement]

 

Bank of Montreal, as Administrative Agent
   

 

Ladies and Gentlemen:

Reference hereby is made to (i) the Credit Agreement, dated as of January 31, 2014 (such agreement, as amended, restated, supplemented, modified or otherwise changed from time to time, including any replacement agreement therefor, being hereinafter referred to as the “ Credit Agreement ”) by and among J.A. Cosmetics Holdings, Inc., a Delaware corporation (“ Holdings ”), as the initial borrower (the “ Initial Borrower ”; each of the Initial Borrower, and each Domestic Subsidiary of Initial Borrower who hereafter becomes a “Borrower” thereunder pursuant to a Joinder Agreement, are referred to individually as a “ Borrower ” and collectively as the “ Borrowers ”), the lenders from time to time party thereto (each a “ Lender ” and collectively, the “ Lenders ”) and Bank of Montreal, as Administrative Agent for the Lenders (in such capacity, together with its successors and permitted assigns in such capacity, the “ Administrative Agent ”) and (ii) the Pledge and Security Agreement, dated as of January 31, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the “ Security Agreement ”), made by the Grantors from time to time party thereto in favor of Administrative Agent. Capitalized terms defined in the Credit Agreement or the Security Agreement and not otherwise defined herein are used herein as defined in the Credit Agreement or the Security Agreement.

SECTION 1. Grant of Security . The undersigned hereby grants to Administrative Agent, for the ratable benefit of the Lender Parties, a security interest in, all of its right, title and interest in and to all of the Collateral (as defined in the Security Agreement) of the undersigned, whether now owned or hereafter acquired by the undersigned, wherever located and whether now or hereafter existing or arising, including, without limitation, the property and assets of the undersigned set forth on the attached supplemental schedules to the Schedules to the Security Agreement.

SECTION 2. Security for Obligations . The grant of a security interest in the Collateral by the undersigned under this Security Agreement Supplement and the Security Agreement secures the payment of all Secured Obligations of the undersigned now or hereafter existing under or in respect of the Loan Documents, whether direct or indirect, absolute or contingent, and whether for principal, reimbursement obligations, interest, premiums, penalties, fees, indemnifications, contract causes of action, costs, expenses or otherwise. Without limiting the generality of the foregoing, each of this Security Agreement Supplement and the Security Agreement secures the payment of all amounts that constitute part of the Secured Obligations and that would be owed by the undersigned to Administrative Agent or any Lender Party under the Loan Documents but for the fact that such Secured Obligations are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving a Grantor.

 

Exhibit C-1


SECTION 3. Supplements to Security Agreement Schedules . The undersigned has attached hereto supplemental Schedules I through XI to Schedules I through XI, respectively, to the Security Agreement, and the undersigned hereby certifies, as of the date first above written, that such supplemental Schedules include all of the information required to be scheduled to the Security Agreement.

SECTION 4. Representations and Warranties . As of the date hereof, the undersigned hereby makes each representation and warranty set forth in Section 5 of the Security Agreement (as supplemented by the attached supplemental Schedules) to the same extent as each other Grantor.

SECTION 5. Obligations Under the Security Agreement . The undersigned hereby agrees, as of the date first above written, to be bound as a Grantor by all of the terms and provisions of the Security Agreement to the same extent as each of the other Grantors. The undersigned further agrees, as of the date first above written, that each reference in the Security Agreement to an “Additional Grantor” or a “Grantor” shall also mean and be a reference to the undersigned.

SECTION 6. Governing Law . This Security Agreement Supplement shall be governed by, and construed in accordance with, the laws of the State of New York.

SECTION 7. Loan Document . In addition to and without limitation of any of the foregoing, this Security Agreement Supplement shall be deemed to be a Loan Document and shall otherwise be subject to all of terms and conditions contained in Sections 10.14 and 10.15 of the Credit Agreement, mutatis mutandi.

 

Very truly yours
[NAME OF ADDITIONAL GRANTOR]
By:  

 

Name:  

 

Title:  

 

Acknowledged and Agreed:

 

BANK OF MONTREAL, as Administrative Agent
By:  

 

Name:  

 

Title:  

 

 

Exhibit C-2

Exhibit 10.12

J.A. COSMETICS HOLDINGS, INC.

 

 

2014 EQUITY INCENTIVE PLAN

 

 

ARTICLE I

PURPOSE

The purpose of this J.A. Cosmetics Holdings, Inc. 2014 Equity Incentive Plan is to enhance the profitability and value of the Company for the benefit of its stockholders by enabling the Company to offer Eligible Individuals cash and stock-based incentives in order to attract, retain and reward such individuals and strengthen the mutuality of interests between such individuals and the Company’s stockholders. The Plan is effective as of the date set forth in Article XIV hereof.

ARTICLE II

DEFINITIONS

For purposes of the Plan, the following terms shall have the following meanings:

2.1 “ Affiliate any particular Person means any other Person controlling, controlled by or under common control with such particular Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, by contract or otherwise, including any Subsidiary or any Parent; provided that, unless otherwise determined by the Committee, the Common Stock subject to any Award constitutes “service recipient stock” for purposes of Section 409A of the Code or otherwise does not subject the Award to Section 409A of the Code.

2.2 “ Award means any award under the Plan of any Stock Option, Stock Appreciation Right, Restricted Stock Award, Other Stock-Based Award or Other Cash-Based Award. All Awards shall be granted by, confirmed by, and subject to the terms of, a written agreement executed by the Company and the Participant.

2.3 “ Award Agreement means the written agreement setting forth the terms and conditions applicable to an Award.

2.4 “ Board means the Board of Directors of the Company.

2.5 “ Cause means, unless otherwise determined by the Committee in the applicable Award Agreement or any employment agreement between the Participant and the Company or a Subsidiary, with respect to a Participant’s Termination of Employment or Termination of Consultancy, the Participant’s: (a) conviction (including a guilty plea or plea of nolo contendere) of any crime or offense that constitutes a felony under federal or state law or other crime involving moral turpitude or any other act or omission involving fraud with respect to the Company or a Subsidiary; (b) commission of an act of gross negligence or intentional


misconduct, in each case resulting in any material detriment to the Company or a Subsidiary; (c) abuse of alcohol or other substances that materially impairs his or her ability to perform his or her duties hereunder; (d) knowingly aiding or abetting a competitor, supplier or customer of the Company or a Subsidiary to the disadvantage or detriment of the Company or a Subsidiary; (e) failure to comply with the lawful and reasonable direction of the Board (other than due to physical or mental incapacity), which failure continues for fifteen (15) days following receipt of written notice from the Board specifying such failure, or which failure represents a pattern of failing to comply with the lawful and reasonable direction of the chief executive officer or the Board; (f) failure to adhere to written company policies resulting in any material detriment to the Company or a Subsidiary, which failure continues for fifteen (15) days following receipt of written notice from the Board specifying such failure; or (g) material breach of any provision of this Plan or any Award Agreement (other than due to physical or mental incapacity), including without limitation any non-competition and/or non-solicitation covenants in any Award Agreement, which breach continues for fifteen (15) days following receipt of written notice from the Board specifying such breach. With respect to a Participant’s Termination of Directorship, “cause” means an act or failure to act that constitutes cause for removal of a director under applicable Delaware law.

2.6 “ Code means the Internal Revenue Code of 1986, as amended. Any reference to any section of the Code shall also be a reference to any successor provision and any treasury regulation promulgated thereunder.

2.7 “ Committee means any committee of the Board duly authorized by the Board to administer the Plan. If no committee is duly authorized by the Board to administer the Plan, the term “Committee” shall be deemed to refer to the Board for all purposes under the Plan.

2.8 “ Common Stock means the common stock, par value $0.01, of the Company.

2.9 “ Company means J.A. Cosmetics Holdings, Inc., a Delaware corporation, and its successors by operation of law.

2.10 “ Consultant means any natural person who is an advisor or consultant to the Company or its Affiliates.

2.11 “ Disability means, unless otherwise determined by the Committee in the applicable Award Agreement or any employment agreement between the Participant and the Company or a Subsidiary, with respect to a Participant’s Termination, a permanent and total disability as defined in Section 22(e)(3) of the Code. A Disability shall only be deemed to occur at the time of the determination by the Committee of the Disability. Notwithstanding the foregoing, for Awards that are subject to Section 409A of the Code, Disability shall mean that a Participant is disabled under Section 409A(a)(2)(C)(i) or (ii) of the Code.

2.12 “ Effective Date means the effective date of the Plan as defined in Article XIV hereof.

2.13 “ Eligible Employees means each employee of the Company or an Affiliate.

 

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2.14 “ Eligible Individual means an Eligible Employee, Non-Employee Director or Consultant who is designated by the Committee in its sole discretion as eligible to receive Awards subject to the conditions set forth herein.

2.15 “ Exchange Act means the Securities Exchange Act of 1934, as amended. Reference to a specific section of the Exchange Act or regulation thereunder shall include such section or regulation, any valid regulation or interpretation promulgated under such section, and any comparable provision of any future legislation or regulation amending, supplementing or superseding such section or regulation.

2.16 “ Fair Market Value shall, for purposes of the Plan, unless otherwise required by any applicable provision of the Code or any regulations issued thereunder, as of any date and except as provided below, have the meaning set forth in the Stockholders Agreement.

2.17 “ Family Member means “family member” as defined under Rule 701 of the Securities Act.

2.18 “ Incentive Stock Option means any Stock Option awarded to an Eligible Employee of the Company, its Subsidiaries and its Parents (if any) under the Plan intended to be and designated as an “Incentive Stock Option” within the meaning of Section 422 of the Code.

2.19 “ Initial Public Offering means the first “Public Offering” of the Company as such term is defined in the Stockholders Agreement.

2.20 “ Lead Underwriter has the meaning set forth in Section 13.18 hereof.

2.21 “ Lock-Up Period has the meaning set forth in Section 13.18 hereof.

2.22 “ Non-Employee Director means a director or a member of the Board of the Company or any Affiliate who is not an active employee of the Company or any Affiliate.

2.23 “ Non-Qualified Stock Option means any Stock Option awarded under the Plan that is not an Incentive Stock Option.

2.24 “ Non-Tandem Stock Appreciation Right shall mean the right to receive an amount in cash and/or stock equal to the difference between (x) the Fair Market Value of a share of Common Stock on the date such right is exercised, and (y) the aggregate exercise price of such right, other than on surrender of a Stock Option.

2.25 “ Other Cash-Based Award means an Award granted pursuant to Section 9.3 hereof and payable in cash at such time or times and subject to such terms and conditions as determined by the Committee in its sole discretion.

2.26 “ Other Stock-Based Award means an Award under Article IX hereof that is valued in whole or in part by reference to, or is payable in or otherwise based on, Common Stock, including, without limitation, an Award valued by reference to an Affiliate.

 

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2.27 “ Parent means any parent corporation of the Company within the meaning of Section 424(e) of the Code.

2.28 “ Participant means an Eligible Individual to whom an Award has been granted pursuant to the Plan.

2.29 “ Performance Goals means the objective and/or subjective performance goals established by the Committee as contingencies for Awards to vest and/or become exercisable or distributable.

2.30 “ Performance Period means the designated period during which the Performance Goals must be satisfied with respect to the Award to which the Performance Goals relate.

2.31 “ Plan means this J.A. Cosmetics Holdings, Inc. 2014 Equity Incentive Plan, as amended from time to time.

2.32 “ Proceeding has the meaning set forth in Section 13.9 hereof.

2.33 “ Reference Stock Option has the meaning set forth in Section 7.1 hereof.

2.34 “ Registration Rights Agreement shall mean that certain Registration Rights Agreement of the Company by and among the Company and the stockholders of the Company, dated as of the date hereof, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.

2.35 “ Reorganization has the meaning set forth in Section 4.2(b)(ii) hereof.

2.36 “ Restricted Stock means an Award of shares of Common Stock under the Plan that is subject to restrictions under Article VIII hereof.

2.37 “ Restriction Period has the meaning set forth in Section 8.2(a) hereof with respect to Restricted Stock.

2.38 “ Sale of the Company shall have the meaning set forth in the Stockholders Agreement. Notwithstanding the foregoing, with respect to any Award that is characterized as “nonqualified deferred compensation” within the meaning of Section 409A of the Code, an event shall not be considered to be a Sale of the Company under the Plan for purposes of payment of such Award unless such event is also a “change in ownership,” a “change in effective control” or a “change in the ownership of a substantial portion of the assets” of the Company within the meaning of Section 409A of the Code.

2.39 “ Section 409A of the Code means the nonqualified deferred compensation rules under Section 409A of the Code and any applicable treasury regulations and other official guidance thereunder.

2.40 “ Securities Act means the Securities Act of 1933, as amended and all rules and regulations promulgated thereunder. Reference to a specific section of the Securities Act or

 

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regulation thereunder shall include such section or regulation, any valid regulation or interpretation promulgated under such section, and any comparable provision of any future legislation or regulation amending, supplementing or superseding such section or regulation.

2.41 “ Stock Appreciation Right shall mean the right pursuant to an Award granted under Article VII hereof.

2.42 “ Stockholders Agreement shall mean that certain Stockholders Agreement of the Company by and among the Company and the stockholders of the Company, dated as of the date hereof, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.

2.43 “ Stock Option or Option means any option to purchase shares of Common Stock granted to Eligible Individuals granted pursuant to Article VI hereof.

2.44 “ Subsidiary means any subsidiary corporation of the Company within the meaning of Section 424(f) of the Code.

2.45 “ Tandem Stock Appreciation Right shall mean the right to surrender to the Company all (or a portion) of a Stock Option in exchange for an amount in cash and/or stock equal to the difference between (i) the Fair Market Value on the date such Stock Option (or such portion thereof) is surrendered, of the Common Stock covered by such Stock Option (or such portion thereof), and (ii) the aggregate exercise price of such Stock Option (or such portion thereof).

2.46 “ Ten Percent Stockholder means a person owning stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company, its Subsidiaries or its Parent.

2.47 “ Termination means a Termination of Consultancy, Termination of Directorship or Termination of Employment, as applicable.

2.48 “ Termination of Consultancy means: (a) that the Consultant is no longer acting as a consultant to the Company or an Affiliate; or (b) when an entity which is retaining a Participant as a Consultant ceases to be an Affiliate unless the Participant otherwise is, or thereupon becomes, a Consultant to the Company or another Affiliate at the time the entity ceases to be an Affiliate. In the event that a Consultant becomes an Eligible Employee or a Non-Employee Director upon the termination of such Consultant’s consultancy, unless otherwise determined by the Committee, in its sole discretion, no Termination of Consultancy shall be deemed to occur until such time as such Consultant is no longer a Consultant, an Eligible Employee or a Non-Employee Director. Notwithstanding the foregoing, the Committee may otherwise define Termination of Consultancy in the Award Agreement or, if no rights of a Participant are reduced, may otherwise define Termination of Consultancy thereafter, provided that any such change to the definition of the term “Termination of Consultancy” does not subject the applicable Award to Section 409A of the Code.

2.49 “ Termination of Directorship means that the Non-Employee Director has ceased to be a director of the Company; except that if a Non-Employee Director becomes an

 

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Eligible Employee or a Consultant upon the termination of such Non-Employee Director’s directorship, such Non-Employee Director’s ceasing to be a director of the Company shall not be treated as a Termination of Directorship unless and until the Participant has a Termination of Employment or Termination of Consultancy, as the case may be.

2.50 “ Termination of Employment means: (a) a termination of employment (for reasons other than a military or personal leave of absence granted by the Company) of a Participant from the Company and its Affiliates; or (b) when an entity which is employing a Participant ceases to be an Affiliate, unless the Participant otherwise is, or thereupon becomes, employed by the Company or another Affiliate at the time the entity ceases to be an Affiliate. In the event that an Eligible Employee becomes a Consultant or a Non-Employee Director upon the termination of such Eligible Employee’s employment, unless otherwise determined by the Committee, in its sole discretion, no Termination of Employment shall be deemed to occur until such time as such Eligible Employee is no longer an Eligible Employee, a Consultant or a Non-Employee Director. Notwithstanding the foregoing, the Committee may otherwise define Termination of Employment in the Award Agreement or, if no rights of a Participant are reduced, may otherwise define Termination of Employment thereafter, provided that any such change to the definition of the term “Termination of Employment” does not subject the applicable Award to Section 409A of the Code.

2.51 “ Transfer means any sale, transfer, assignment, pledge, mortgage, exchange, hypothecation, grant of a security interest or other direct or indirect disposition or encumbrance of an interest whether with or without consideration, whether voluntarily or involuntarily or by operation of law) or the acts thereof. The terms “Transferee,” “Transferred,” and other forms of the word “Transfer” shall have correlative meanings.

ARTICLE III

ADMINISTRATION

3.1 The Committee .   The Plan shall be administered and interpreted by the Committee.

3.2 Grants of Awards . The Committee shall have full authority to grant, pursuant to the terms of the Plan, to Eligible Individuals: (i) Stock Options; (ii) Stock Appreciation Rights; (iii) Restricted Stock Awards; (iv) Other Stock-Based Awards; and (v) Other Cash-Based Awards. Eligible Individuals selected to receive Awards shall not have any right with respect to such Award, unless and until such Participant has delivered a fully executed copy of the Award Agreement evidencing the Award to the Company, to the extent required by the Committee, and has otherwise complied with the applicable terms and conditions of such Award, as set forth in the Plan and the Award Agreement, as applicable.

3.3 Authority . The Committee shall have the authority:

(a) to select the Eligible Individuals to whom Awards may from time to time be granted hereunder;

(b) to determine whether and to what extent Awards, or any combination thereof, are to be granted hereunder to one or more Eligible Individuals;

 

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(c) to determine the number of shares of Common Stock to be covered by each Award granted hereunder;

(d) to determine the terms and conditions, not inconsistent with the terms of the Plan, of any Award granted hereunder (including, but not limited to, the exercise or purchase price (if any), any restriction or limitation, any vesting schedule or acceleration thereof, or any forfeiture restrictions or waiver thereof, regarding any Award and the shares of Common Stock relating thereto, based on such factors, if any, as the Committee shall determine, in its sole discretion);

(e) to determine the amount of cash to be covered by each Award granted hereunder;

(f) to determine whether, to what extent and under what circumstances grants of Options and other Awards under the Plan are to operate on a tandem basis and/or in conjunction with or apart from other awards made by the Company outside of the Plan;

(g) to determine whether and under what circumstances a Stock Option may be settled in cash, Common Stock and/or Restricted Stock under Section 6.4(d) hereof;

(h) to determine whether a Stock Option is an Incentive Stock Option or Non-Qualified Stock Option;

(i) to determine whether to require a Participant, as a condition of the granting of any Award, to not sell or otherwise dispose of shares acquired pursuant to the exercise of an Award for a period of time as determined by the Committee, in its sole discretion, following the date of the acquisition of such Award; and

(j) to modify, extend or renew an Award, subject to Article X and Section 6.4(k) hereof, provided, however, that such action does not subject the Award to Section 409A of the Code without the consent of the Participant.

3.4 Guidelines . Subject to Article X hereof, the Committee shall have the authority to adopt, alter and repeal such administrative rules, guidelines and practices governing the Plan and perform all acts, including the delegation of its responsibilities (to the extent permitted by applicable law and applicable stock exchange rules), as it shall, from time to time, deem advisable; to construe and interpret the terms and provisions of the Plan and any Award issued under the Plan (and any agreements relating thereto); and to otherwise supervise the administration of the Plan. The Committee may correct any defect, supply any omission or reconcile any inconsistency in the Plan or in any agreement relating thereto in the manner and to the extent it shall deem necessary to effectuate the purpose and intent of the Plan. The Committee may adopt special guidelines and provisions for persons who are residing in or employed in, or subject to, the taxes of, any domestic or foreign jurisdictions to comply with applicable tax and securities laws of such domestic or foreign jurisdictions. Notwithstanding the foregoing, no action of the Committee under this Section 3.4 shall impair the rights of any Participant without the Participant’s consent.

 

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3.5 Decisions Final . Any decision, interpretation or other action made or taken in good faith by or at the direction of the Company, the Board or the Committee (or any of its members) arising out of or in connection with the Plan shall be within the absolute discretion of all and each of them, as the case may be, and shall be final, binding and conclusive on the Company and all employees and Participants and their respective heirs, executors, administrators, successors and assigns.

3.6 Procedures . If the Committee is appointed, the Board shall designate one of the members of the Committee as chairman and the Committee shall hold meetings, subject to the By-Laws of the Company, at such times and places as it shall deem advisable, including, without limitation, by telephone conference or by written consent to the extent permitted by applicable law. A majority of the Committee members shall constitute a quorum. All determinations of the Committee shall be made by a majority of its members. Any decision or determination reduced to writing and signed by all of the Committee members in accordance with the By-Laws of the Company, shall be fully effective as if it had been made by a vote at a meeting duly called and held. The Committee shall keep minutes of its meetings and shall make such rules and regulations for the conduct of its business as it shall deem advisable.

3.7 Designation of Consultants/Liability .

(a) The Committee may designate employees of the Company and professional advisors to assist the Committee in the administration of the Plan and (to the extent permitted by applicable law) may grant authority to officers to grant Awards and/or execute agreements or other documents on behalf of the Committee.

(b) The Committee may employ such legal counsel, consultants and agents as it may deem desirable for the administration of the Plan and may rely upon any opinion received from any such counsel or consultant and any computation received from any such consultant or agent. Expenses incurred by the Committee or the Board in the engagement of any such counsel, consultant or agent shall be paid by the Company. The Committee, its members and any person designated pursuant to sub-section (a) above shall not be liable for any action or determination made in good faith with respect to the Plan. To the maximum extent permitted by applicable law, no officer of the Company or member or former member of the Committee or of the Board shall be liable for any action or determination made in good faith with respect to the Plan or any Award granted under it.

3.8 Indemnification . To the maximum extent permitted by applicable law and the Certificate of Incorporation and By-Laws of the Company and to the extent not covered by insurance directly insuring such person, each officer or employee of the Company or any Affiliate and member or former member of the Committee or the Board shall be indemnified and held harmless by the Company against any cost or expense (including reasonable fees of counsel reasonably acceptable to the Committee) or liability (including any sum paid in settlement of a claim with the approval of the Committee), and advanced amounts necessary to pay the foregoing at the earliest time and to the fullest extent permitted, arising out of any act or omission to act in connection with the administration of the Plan, except to the extent arising out of such officer’s, employee’s, member’s or former member’s own fraud or bad faith. Such indemnification shall be in addition to any right of indemnification the employees, officers,

 

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directors or members or former officers, directors or members may have under applicable law or under the Certificate of Incorporation or By-Laws of the Company or any Affiliate. Notwithstanding anything else herein, this indemnification will not apply to the actions or determinations made by an individual with regard to Awards granted to such individual under the Plan.

ARTICLE IV

SHARE LIMITATION

4.1 Shares . The aggregate number of shares of Common Stock that may be issued or used for reference purposes or with respect to which Awards may be granted under the Plan shall not exceed 2,960,894 shares of Common Stock (subject to any increase or decrease pursuant to Section 4.2 hereof), which may be either authorized and unissued Common Stock or Common Stock held in or acquired for the treasury of the Company or both. The maximum number of shares of Common Stock with respect to which Incentive Stock Options may be granted under the Plan shall be 2,960,894 shares of Common Stock (subject to any increase or decrease pursuant to Section 4.2 hereof). With respect to Stock Appreciation Rights settled in Common Stock, upon settlement, only the number of shares of Common Stock delivered to a Participant (based on the difference between the Fair Market Value of the shares of Common Stock subject to such Stock Appreciation Right on the date such Stock Appreciation Right is exercised and the exercise price of each Stock Appreciation Right on the date such Stock Appreciation Right was awarded) shall count against the aggregate share limitations set forth under this Section 4.1 hereof. If any Option, Stock Appreciation Right or Other Stock-Based Awards granted under the Plan expires, terminates or is canceled for any reason without having been exercised in full, the number of shares of Common Stock underlying any unexercised Award shall again be available for the purpose of Awards under the Plan. If any shares of Restricted Stock or Other Stock-Based Awards denominated in shares of Common Stock awarded under the Plan to a Participant are forfeited for any reason, the number of forfeited shares of Restricted Stock or Other Stock-Based Awards denominated in shares of Common Stock shall again be available for purposes of Awards under the Plan. If a Tandem Stock Appreciation Right or a limited Stock Appreciation Right is granted in tandem with an Option, such grant shall only apply once against the maximum number of shares of Common Stock which may be issued under the Plan. In addition, any shares of Common Stock exchanged by a Participant or withheld from a Participant as full or partial payment to the Company of the exercise price or tax withholding upon exercise or payment of an Award under the Plan shall be added back to the foregoing maximum share limitation and may be made subject to Awards under the Plan pursuant to such limitation. Any Award under the Plan settled in cash shall not be counted against the foregoing maximum share limitation.

4.2 Changes .

(a) The existence of the Plan and the Awards granted hereunder shall not affect in any way the right or power of the Board or the stockholders of the Company to make or authorize (i) any adjustment, recapitalization, reorganization or other change in the Company’s capital structure or its business, (ii) any merger or consolidation of the Company or any of its Affiliates, (iii) any issuance of bonds, debentures, preferred or prior preference equity ahead of or affecting the Common Stock, (iv) the dissolution or liquidation of the Company or any of its Affiliates, (v) any sale or transfer of all or part of the assets or business of the Company or any of its Affiliates or (vi) any other corporate act or proceeding.

 

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(b) Subject to the provisions of Section 4.2(c) :

(i) If the Company at any time subdivides (by any split, recapitalization or otherwise) the outstanding Common Stock into a greater number of shares of Common Stock, or combines (by reverse split, combination or otherwise) its outstanding Common Stock into a lesser number of shares of Common Stock, then the respective exercise prices for outstanding Awards that provide for a Participant elected exercise and the number of shares of Common Stock covered by outstanding Awards shall be appropriately adjusted by the Committee to prevent dilution or enlargement of the rights granted to, or available for, Participants under the Plan.

(ii) Excepting transactions covered by Section 4.2(b)(i) , if the Company effects any merger, consolidation, statutory exchange, spin-off, reorganization, sale or transfer of all or substantially all the Company’s assets or business, or other corporate transaction or event in such a manner that the Company’s outstanding shares of Common Stock are converted into the right to receive (or the holders of Common Stock are entitled to receive in exchange therefor), either immediately or upon liquidation of the Company, securities or other property of the Company or other entity (each, a Reorganization ), then, subject to the provisions of Section 4.2(c) , (A) the aggregate number or kind of securities that thereafter may be issued under the Plan, (B) the number or kind of securities or other property (including cash) to be issued pursuant to Awards granted under the Plan (including as a result of the assumption of the Plan and the obligations hereunder by a successor entity, as applicable), or (C) the purchase price thereof, shall be appropriately adjusted by the Committee to prevent dilution or enlargement of the rights granted to, or available for, Participants under the Plan.

(iii) If there shall occur any change in the capital structure of the Company other than those covered by Sections 4.2(b)(i) or 4.2(b)(ii) , including by reason of any extraordinary dividend (whether cash or equity), any conversion, any adjustment, any issuance of any class of securities convertible or exercisable into, or exercisable for, any class of equity securities of the Company, then the Committee may adjust any Award and make such other adjustments to the Plan to prevent dilution or enlargement of the rights granted to, or available for, Participants under the Plan.

(iv) Any such adjustment determined by the Committee pursuant to this Section 4.2(b) shall be final, binding and conclusive on the Company and all Participants and their respective heirs, executors, administrators, successors and permitted assigns. Any adjustment to, or assumption or substitution of, an Award under this Section 4.2(b) shall be intended to comply with the requirements of Section 409A of the Code and Treasury Regulation §1.424-1 (and any amendments thereto), to the extent applicable. Except as expressly provided in this Section 4.2 or in the applicable Award Agreement, a Participant shall have no additional rights under the Plan by reason of any transaction or event described in this Section 4.2 .

(v) Fractional shares of Common Stock resulting from any adjustment in Awards pursuant to this Section 4.2(b) shall be aggregated until, and eliminated at, the time of

 

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exercise by rounding down for fractions less than one-half and rounding up for fractions equal to or greater than one-half. No cash settlements shall be required to be made with respect to fractional shares of Common Stock eliminated by rounding. Notice of any adjustment shall be given by the Committee to each Participant whose Awards have been adjusted and such adjustment (whether or not such notice is given) shall be effective and binding for all purposes of the Plan.

(c) In the event of a Reorganization or a Sale of the Company, the Committee may, in its sole discretion, do any one or more of the following:

(i) provide for the accelerated vesting of, or lapse of restrictions applicable to, outstanding Awards at any time;

(ii) provide for the continuation, assumption or substitution of outstanding Awards, whether vested or unvested, as determined by the Committee in a manner consistent with the applicable requirements of Section 409A of the Code and Treasury Regulation Section 1.424-1 (and any amendment thereto);

(iii) terminate outstanding and unexercised Stock Options, Stock Appreciation Rights, or any Other Stock-Based Award that provides for a Participant elected exercise, effective as of the date of such transaction, by delivering notice of termination to Participants at least ten (10) days prior to the date of consummation of such transaction, in which case, during the period from the date on which such notice of termination is delivered to the consummation of such transaction, each such Participant shall have the right to exercise in full all of the Participant’s outstanding Stock Options, Stock Appreciation Rights and Other Stock-Based Awards that provide for a Participant elected exercise (without regard to any limitations on exercisability otherwise contained in the Award Agreements), but any such exercise shall be contingent on the consummation of such transaction, and, provided that, if such transaction is not consummated within a specified period after giving such notice for any reason whatsoever, the notice and exercise pursuant thereto shall be null and void; or

(iv) provide for the purchase of Awards by the Company or any Subsidiary in connection with (and contingent upon) the consummation of such transaction for an amount of cash equal to the excess (if any, or if no excess, zero) of the Fair Market Value of the shares of Common Stock covered by such Awards (which, for clarity, shall be the Fair Market Value of the Common Stock in connection with such transaction), over the aggregate exercise price or purchase price required to be paid under such Awards for the acquisition of the underlying Common Stock, to the extent applicable.

4.3 Minimum Purchase Price . Notwithstanding any provision of the Plan to the contrary, if authorized but previously unissued shares of Common Stock are issued under the Plan, such shares shall not be issued for a consideration that is less than as permitted under applicable law.

 

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ARTICLE V

ELIGIBILITY

5.1 General Eligibility . All current and prospective Eligible Individuals are eligible to be granted Awards. Eligibility for the grant of Awards and actual participation in the Plan shall be determined by the Committee in its sole discretion.

5.2 Incentive Stock Options . Notwithstanding the foregoing, only Eligible Employees of the Company, its Subsidiaries and its Parent (if any) are eligible to be granted Incentive Stock Options under the Plan. Eligibility for the grant of an Incentive Stock Option and actual participation in the Plan shall be determined by the Committee in its sole discretion.

5.3 General Requirement . The vesting and exercise of Awards granted to a prospective Eligible Individual are conditioned upon such individual actually becoming an Eligible Employee, Consultant or Non-Employee Director, respectively.

ARTICLE VI

STOCK OPTIONS

6.1 Options . Stock Options may be granted alone or in addition to other Awards granted under the Plan. Each Stock Option granted under the Plan shall be of one of two types: (a) an Incentive Stock Option or (b) a Non-Qualified Stock Option.

6.2 Grants . The Committee shall have the authority to grant to any Eligible Employee one or more Incentive Stock Options, Non-Qualified Stock Options, or both types of Stock Options. The Committee shall have the authority to grant any Consultant or Non-Employee Director one or more Non-Qualified Stock Options. To the extent that any Stock Option does not qualify as an Incentive Stock Option (whether because of its provisions or the time or manner of its exercise or otherwise), such Stock Option or the portion thereof which does not so qualify shall constitute a separate Non-Qualified Stock Option.

6.3 Incentive Stock Options . Notwithstanding anything in the Plan to the contrary, no term of the Plan relating to Incentive Stock Options shall be interpreted, amended or altered, nor shall any discretion or authority granted under the Plan be so exercised, so as to disqualify the Plan under Section 422 of the Code, or, without the consent of the Participants affected, to disqualify any Incentive Stock Option under such Section 422.

6.4 Terms of Options . Options granted under the Plan shall be subject to the following terms and conditions and shall be in such form and contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Committee shall deem desirable:

(a) Exercise Price . The exercise price per share of Common Stock subject to a Stock Option shall be determined by the Committee at the time of grant, provided that the per share exercise price of a Stock Option intended to be an Incentive Stock Option shall not be less than 100% (or, in the case of an Incentive Stock Option granted to a Ten Percent Stockholder, 110%) of the Fair Market Value of a share of Common Stock at the time of grant. To the extent that a Stock Option is granted with an exercise price that is less than 100% of the Fair Market Value of a share of Common Stock at the time of grant, such Stock Option will be intended to comply with the requirements of Section 409A of the Code, and the Committee shall take such requirements into account when approving any such grant.

 

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(b) Stock Option Term . The term of each Stock Option shall be fixed by the Committee, provided that no Stock Option shall be exercisable more than ten (10) years after the date the Option is granted; and provided further that the term of an Incentive Stock Option granted to a Ten Percent Stockholder shall not exceed five years.

(c) Exercisability . Unless otherwise provided by the Committee in accordance with the provisions of this Section 6.4 , Stock Options granted under the Plan shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Committee at the time of grant. If the Committee provides, in its sole discretion, that any Stock Option is exercisable subject to certain limitations (including, without limitation, that such Stock Option is exercisable only in installments or within certain time periods), the Committee may waive such limitations on the exercisability at any time at or after the time of grant in whole or in part (including, without limitation, waiver of the installment exercise provisions or acceleration of the time at which such Stock Option may be exercised), based on such factors, if any, as the Committee shall determine, in its sole discretion.

(d) Method of Exercise . Subject to whatever installment exercise and waiting period provisions apply under Section 6.4(c) hereof, to the extent vested, Stock Options may be exercised in whole or in part at any time during the Option term, by giving written notice of exercise to the Company specifying the number of shares of Common Stock to be purchased. Such notice shall be accompanied by payment in full of the purchase price as follows: (i) in cash or by check, bank draft or money order payable to the order of the Company; (ii) solely to the extent permitted by applicable law, if the Common Stock is traded on a national securities exchange, and the Committee authorizes, through a procedure whereby the Participant delivers irrevocable instructions to a broker reasonably acceptable to the Committee to deliver promptly to the Company an amount equal to the purchase price; or (iii) on such other terms and conditions as may be acceptable to the Committee (including, without limitation, having the Company withhold shares of Common Stock issuable upon exercise of the Stock Option, or by payment in full or in part in the form of Common Stock owned by the Participant, based on the Fair Market Value of the Common Stock on the payment date as determined by the Committee). No shares of Common Stock shall be issued until payment therefor, as provided herein, has been made or provided for.

(e) Non-Transferability of Options . No Stock Option shall be Transferable by the Participant other than by will or by the laws of descent and distribution, and all Stock Options shall be exercisable, during the Participant’s lifetime, only by the Participant. Notwithstanding the foregoing, the Committee may determine, in its sole discretion, at the time of grant or thereafter or as set forth in the applicable Award Agreement that a Non-Qualified Stock Option that is otherwise not Transferable pursuant to this Section 6.4(e) is Transferable to a Family Member in whole or in part and in such circumstances, and under such conditions, as specified by the Committee. A Non-Qualified Stock Option that is Transferred to a Family Member pursuant to the preceding sentence (i) may not be subsequently Transferred other than by will or by the laws of descent and distribution and (ii) remains subject to the terms of the Plan and the applicable Award Agreement. Any shares of Common Stock acquired upon the exercise

 

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of a Non-Qualified Stock Option by a permissible transferee of a Non-Qualified Stock Option or a permissible transferee pursuant to a Transfer after the exercise of the Non-Qualified Stock Option shall be subject to the terms of the Plan and the applicable Award Agreement.

(f) Termination Generally . Unless otherwise determined by the Committee at the time of grant or as set forth in the applicable Award Agreement, or if no rights of the Participant are reduced, thereafter, upon a Participant’s Termination for any reason (except as described in Sections 6.4(g) and 6.4(h) hereof), all Stock Options that are held by such Participant that are vested and exercisable at the time of the Participant’s Termination may be exercised by the Participant at any time within a period of ninety (90) days from the date of such Termination, but in no event beyond the expiration of the stated term of such Stock Options.

(g) Termination by Death or Disability . Unless otherwise determined by the Committee at the time of grant or as set forth in the applicable Award Agreement, or if no rights of the Participant are reduced, thereafter, if a Participant’s Termination is by reason of death or Disability, all Stock Options that are held by such Participant that are vested and exercisable at the time of the Participant’s Termination may be exercised by the Participant (or in the case of death, by the legal representative of the Participant’s estate) at any time within a period of one (1) year from the date of such Termination, but in no event beyond the expiration of the stated term of such Stock Options.

(h) Termination for Cause . Unless otherwise determined by the Committee at the time of grant or as set forth in the applicable Award Agreement, or if no rights of the Participant are reduced, thereafter, if a Participant’s Termination (x) is for Cause or (y) is a voluntary Termination after the occurrence of an event that would be grounds for a Termination for Cause, all Stock Options, whether vested or not vested, that are held by such Participant shall thereupon terminate and expire as of the date of such Termination.

(i) Unvested Stock Options . Unless otherwise determined by the Committee at the time of grant or as set forth in the applicable Award Agreement, or if no rights of the Participant are reduced, thereafter, Stock Options that are not vested as of the date of a Participant’s Termination for any reason shall terminate and expire as of the date of such Termination.

(j) Incentive Stock Option Limitations . To the extent that the aggregate Fair Market Value (determined as of the time of grant) of the Common Stock with respect to which Incentive Stock Options are exercisable for the first time by an Eligible Employee during any calendar year under the Plan and/or any other stock option plan of the Company, any Subsidiary or any Parent exceeds $100,000, such Options shall be treated as Non-Qualified Stock Options. In addition, if an Eligible Employee does not remain employed by the Company, any Subsidiary or any Parent at all times from the time an Incentive Stock Option is granted until three months prior to the date of exercise thereof (or such other period as required by applicable law), such Stock Option shall be treated as a Non-Qualified Stock Option. Should any provision of the Plan not be necessary in order for the Stock Options to qualify as Incentive Stock Options, or should any additional provisions be required, the Committee may amend the Plan accordingly, without the necessity of obtaining the approval of the stockholders of the Company.

 

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(k) Form, Modification, Extension and Renewal of Stock Options . Subject to the terms and conditions and within the limitations of the Plan, Stock Options shall be evidenced by such form of agreement or grant as is approved by the Committee, and the Committee may (i) modify, extend or renew outstanding Stock Options granted under the Plan (provided that the rights of a Participant are not reduced without such Participant’s consent and provided further that such action does not subject the Stock Options to Section 409A of the Code without the consent of the Participant), and (ii) accept the surrender of outstanding Stock Options (to the extent not theretofore exercised) and authorize the granting of new Stock Options in substitution therefor (to the extent not theretofore exercised). Notwithstanding anything herein to the contrary, unless otherwise provided in the Award Agreement, the Committee may, at its sole and absolute discretion, taking into account the impact of Section 409A of the Code (except if it would not result in failure to comply with Section 409A of the Code), (i) lower the strike price of a Stock Option after it is granted, or take any other action with the effect of lowering the strike price of a Stock Option after it is granted, or (ii) permit the cancellation of a Stock Option in exchange for another Award.

(l) Deferred Delivery of Common Stock . The Committee may in its sole discretion permit Participants to defer delivery of Common Stock acquired pursuant to a Participant’s exercise of an Option in accordance with the terms and conditions established by the Committee in the applicable Award Agreement, which shall be intended to comply with the requirements of Section 409A of the Code.

(m) Early Exercise . The Committee may provide that a Stock Option include a provision whereby the Participant may elect at any time before the Participant’s Termination to exercise the Stock Option as to any part or all of the shares of Common Stock subject to the Stock Option prior to the full vesting of the Stock Option and such shares shall be subject to the provisions of Article VIII hereof and be treated as Restricted Stock. Unvested shares of Common Stock so purchased may be subject to a repurchase option in favor of the Company or to any other restriction the Committee determines to be appropriate.

(n) Other Terms and Conditions . The Committee may include a provision in an Award Agreement providing for the automatic exercise of a Non-Qualified Stock Option on a cashless basis on the last day of the term of such Option if the Participant has failed to exercise the Non-Qualified Stock Option as of such date, with respect to which the Fair Market Value of the shares of Common Stock underlying the Non-Qualified Stock Option exceeds the exercise price of such Non-Qualified Stock Option on the date of expiration of such Option, subject to Section 13.4 hereof. Stock Options may contain such other provisions, which shall not be inconsistent with any of the terms of the Plan, as the Committee shall deem appropriate.

ARTICLE VII

STOCK APPRECIATION RIGHTS

7.1 Tandem Stock Appreciation Rights . Stock Appreciation Rights may be granted in conjunction with all or part of any Stock Option (a “ Reference Stock Option ”) granted under the Plan (“ Tandem Stock Appreciation Rights ”). In the case of a Non-Qualified Stock Option, such rights may be granted either at or after the time of the grant of such Reference Stock Option. In the case of an Incentive Stock Option, such rights may be granted only at the time of the grant of such Reference Stock Option.

 

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7.2 Terms and Conditions of Tandem Stock Appreciation Rights . Tandem Stock Appreciation Rights granted hereunder shall be subject to such terms and conditions, not inconsistent with the provisions of the Plan, as shall be determined from time to time by the Committee, and the following:

(a) Exercise Price . The exercise price per share of Common Stock subject to a Tandem Stock Appreciation Right shall be determined by the Committee at the time of grant. To the extent that a Tandem Stock Appreciation Right is granted with an exercise price that is less than 100% of the Fair Market Value of a share of Common Stock at the time of grant, such Tandem Stock Appreciation Right will be intended to comply with the requirements of Section 409A of the Code, and the Committee shall take such requirements into account when approving any such grant.

(b) Term . A Tandem Stock Appreciation Right or applicable portion thereof granted with respect to a Reference Stock Option shall terminate and no longer be exercisable upon the termination or exercise of the Reference Stock Option, except that, unless otherwise determined by the Committee, in its sole discretion, at the time of grant, a Tandem Stock Appreciation Right granted with respect to less than the full number of shares covered by the Reference Stock Option shall not be reduced until, and then only to the extent that the exercise or termination of the Reference Stock Option causes, the number of shares covered by the Tandem Stock Appreciation Right to exceed the number of shares remaining available and unexercised under the Reference Stock Option.

(c) Exercisability . Tandem Stock Appreciation Rights shall be exercisable only at such time or times and to the extent that the Reference Stock Options to which they relate shall be exercisable in accordance with the provisions of Article VI hereof, and shall be subject to the provisions of Section 6.4(c) hereof.

(d) Method of Exercise . A Tandem Stock Appreciation Right may be exercised by the Participant by surrendering the applicable portion of the Reference Stock Option. Upon such exercise and surrender, the Participant shall be entitled to receive an amount determined in the manner prescribed in this Section 7.2 hereof. Stock Options which have been so surrendered, in whole or in part, shall no longer be exercisable to the extent that the related Tandem Stock Appreciation Rights have been exercised.

(e) Payment . Upon the exercise of a Tandem Stock Appreciation Right, a Participant shall be entitled to receive up to, but no more than, an amount in cash and/or Common Stock (as chosen by the Committee in its sole discretion) equal in value to the excess of the Fair Market Value of one share of Common Stock over the Option exercise price per share specified in the Reference Stock Option agreement multiplied by the number of shares of Common Stock in respect of which the Tandem Stock Appreciation Right shall have been exercised, with the Committee having the right to determine the form of payment.

 

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(f) Deemed Exercise of Reference Stock Option . Upon the exercise of a Tandem Stock Appreciation Right, the Reference Stock Option or part thereof to which such Stock Appreciation Right is related shall be deemed to have been exercised for the purpose of the limitation set forth in Article IV hereof on the number of shares of Common Stock to be issued under the Plan.

(g) Non-Transferability . Tandem Stock Appreciation Rights shall be Transferable only when and to the extent that the underlying Stock Option would be Transferable under Section 6.4(e) hereof.

7.3 Non-Tandem Stock Appreciation Rights . Non-Tandem Stock Appreciation Rights may also be granted without reference to any Stock Options granted under the Plan.

7.4 Terms and Conditions of Non-Tandem Stock Appreciation Rights . Non-Tandem Stock Appreciation Rights granted hereunder shall be subject to such terms and conditions, not inconsistent with the provisions of the Plan, as shall be determined from time to time by the Committee, and the following:

(a) Exercise Price . The exercise price per share of Common Stock subject to a Non-Tandem Stock Appreciation Right shall be determined by the Committee at the time of grant. To the extent that a Non-Tandem Stock Appreciation Right is granted with an exercise price that is less than 100% of the Fair Market Value of a share of Common Stock at the time of grant, such Non-Tandem Stock Appreciation Right will be intended to comply with the requirements of Section 409A of the Code, and the Committee shall take such requirements into account when approving any such grant.

(b) Term . The term of each Non-Tandem Stock Appreciation Right shall be fixed by the Committee, but shall not be greater than ten (10) years after the date the right is granted.

(c) Exercisability . Unless otherwise provided by the Committee in accordance with the provisions of this Section 7.4 hereof, Non-Tandem Stock Appreciation Rights granted under the Plan shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Committee at the time of grant. If the Committee provides, in its sole discretion, that any such right is exercisable subject to certain limitations (including, without limitation, that it is exercisable only in installments or within certain time periods), the Committee may waive such limitations on the exercisability at any time at or after grant in whole or in part (including, without limitation, waiver of the installment exercise provisions or acceleration of the time at which such right may be exercised), based on such factors, if any, as the Committee shall determine, in its sole discretion.

(d) Method of Exercise . Subject to whatever installment exercise and waiting period provisions apply under Section 7.4(c) hereof, Non-Tandem Stock Appreciation Rights may be exercised in whole or in part at any time in accordance with the applicable Award Agreement, by giving written notice of exercise to the Company specifying the number of Non-Tandem Stock Appreciation Rights to be exercised.

 

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(e) Payment . Upon the exercise of a Non-Tandem Stock Appreciation Right a Participant shall be entitled to receive, for each right exercised, up to, but no more than, an amount in cash and/or Common Stock (as chosen by the Committee in its sole discretion) equal in value to the excess of the Fair Market Value of one share of Common Stock on the date that the right is exercised over the Fair Market Value of one share of Common Stock on the date that the right was awarded to the Participant.

(f) Termination . Unless otherwise determined by the Committee at the time of grant or as set forth in the applicable Award Agreement or, if no rights of the Participant are reduced, thereafter, subject to the provisions of the applicable Award Agreement and the Plan, upon a Participant’s Termination for any reason, Non-Tandem Stock Appreciation Rights will remain exercisable following a Participant’s Termination on the same basis as Stock Options would be exercisable following a Participant’s Termination in accordance with the provisions of Sections 6.4(f) through 6.4(i) hereof.

(g) Non-Transferability . No Non-Tandem Stock Appreciation Rights shall be Transferable by the Participant other than by will or by the laws of descent and distribution, and all such rights shall be exercisable, during the Participant’s lifetime, only by the Participant.

7.5 Limited Stock Appreciation Rights . The Committee may, in its sole discretion, grant Tandem and Non-Tandem Stock Appreciation Rights either as a general Stock Appreciation Right or as a limited Stock Appreciation Right. Limited Stock Appreciation Rights may be exercised only upon the occurrence of a Sale of the Company or such other event as the Committee may, in its sole discretion, designate at the time of grant or thereafter. Upon the exercise of limited Stock Appreciation Rights, except as otherwise provided in an Award Agreement, the Participant shall receive in cash and/or Common Stock, as determined by the Committee, an amount equal to the amount (i) set forth in Section 7.2(e) hereof with respect to Tandem Stock Appreciation Rights, or (ii) set forth in Section 7.4(e) hereof with respect to Non-Tandem Stock Appreciation Rights.

7.6 Other Terms and Conditions . The Committee may include a provision in an Award Agreement providing for the automatic exercise of a Stock Appreciation Right on a cashless basis on the last day of the term of such Stock Appreciation Right if the Participant has failed to exercise the Stock Appreciation Right as of such date, with respect to which the Fair Market Value of the shares of Common Stock underlying the Stock Appreciation Right exceeds the exercise price of such Stock Appreciation Right on the date of expiration of such Stock Appreciation Right, subject to Section 13.4 hereof. Stock Appreciation Rights may contain such other provisions, which shall not be inconsistent with any of the terms of the Plan, as the Committee shall deem appropriate.

ARTICLE VIII

RESTRICTED STOCK

8.1 Awards of Restricted Stock . Shares of Restricted Stock may be issued either alone or in addition to other Awards granted under the Plan. The Committee shall determine the Eligible Individuals, to whom, and the time or times at which, grants of Restricted Stock shall be made, the number of shares to be awarded, the price (if any) to be paid by the Participant (subject

 

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to Section 4.3 hereof), the time or times within which such Awards may be subject to forfeiture, the vesting schedule and rights to acceleration thereof, and all other terms and conditions of the Awards. The Committee may condition the grant or vesting of Restricted Stock upon the attainment of specified Performance Goals or such other factor as the Committee may determine in its sole discretion. Further, such Award shall be subject to the following conditions:

(a) Purchase Price . The purchase price of Restricted Stock shall be fixed by the Committee. Subject to Section 4.3 hereof, the purchase price for shares of Restricted Stock may be zero to the extent permitted by applicable law, and, to the extent not so permitted, such purchase price may not be less than par value.

(b) Acceptance . Awards of Restricted Stock must be accepted within a period of sixty (60) days (or such shorter period as the Committee may specify at grant) after the grant date, by executing a Restricted Stock agreement and by paying whatever price (if any) the Committee has designated thereunder.

(c) Legend . Each Participant receiving Restricted Stock shall be issued a stock certificate in respect of such shares of Restricted Stock, unless the Committee elects to use another system, such as book entries by the transfer agent, as evidencing ownership of shares of Restricted Stock. Such certificate shall be registered in the name of such Participant, and shall, in addition to such legends required by applicable securities laws, bear an appropriate legend referring to the terms, conditions, and restrictions applicable to such Award, substantially in the following form:

“THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON                     , HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR APPLICABLE STATE SECURITIES LAWS (“STATE ACTS”) AND MAY NOT BE SOLD, ASSIGNED, PLEDGED OR TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR STATE ACTS OR AN EXEMPTION FROM REGISTRATION THEREUNDER. THE TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN (I) THE STOCKHOLDERS AGREEMENT, DATED AS OF JANUARY 31, 2014, AS AMENDED AND MODIFIED FROM TIME TO TIME, GOVERNING THE ISSUER (THE “COMPANY”) AND BY AND AMONG CERTAIN STOCKHOLDERS, (II) THE REGISTRATION RIGHTS AGREEMENT, DATED AS OF JANUARY 31, 2014, AS AMENDED AND MODIFIED FROM TIME TO TIME, BY AND AMONG THE ISSUER AND CERTAIN STOCKHOLDERS AND (III) THE J.A. COSMETICS HOLDINGS, INC. 2014 EQUITY INCENTIVE PLAN. A COPY OF SUCH CONDITIONS SHALL BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE.”

(d) Custody . If stock certificates are issued in respect of shares of Restricted Stock, the Committee may require that any stock certificates evidencing such shares be held in custody by the Company until the restrictions thereon shall have lapsed, and that, as a condition of any grant of Restricted Stock, the Participant shall have delivered a duly signed stock power or other instruments of assignment (including a power of attorney), each endorsed in blank with a guarantee of signature if deemed necessary or appropriate by the Company, which would permit transfer to the Company of all or a portion of the shares subject to the Restricted Stock Award in the event that such Award is forfeited in whole or part.

 

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8.2 Restrictions and Conditions . The shares of Restricted Stock awarded pursuant to the Plan shall be subject to the following restrictions and conditions:

(a) Restriction Period . (i) The Participant shall not be permitted to Transfer shares of Restricted Stock awarded under the Plan during the period or periods set by the Committee (the “ Restriction Period ”) commencing on the date of such Award, as set forth in the Restricted Stock Award Agreement and such agreement shall set forth a vesting schedule and any event that would accelerate vesting of the shares of Restricted Stock. Within these limits, based on service, attainment of Performance Goals pursuant to Section 8.2(a)(ii) hereof and/or such other factors or criteria as the Committee may determine in its sole discretion, the Committee may condition the grant or provide for the lapse of such restrictions in installments in whole or in part, or may accelerate the vesting of all or any part of any Restricted Stock Award and/or waive the deferral limitations for all or any part of any Restricted Stock Award.

(ii) If the grant of shares of Restricted Stock or the lapse of restrictions is based on the attainment of Performance Goals, the Committee shall establish the Performance Goals and the applicable vesting percentage of the Restricted Stock applicable to each Participant or class of Participants in writing prior to the beginning of the applicable fiscal year or at such later date as otherwise determined by the Committee and while the outcome of the Performance Goals are substantially uncertain. Such Performance Goals may incorporate provisions for disregarding (or adjusting for) changes in accounting methods, corporate transactions (including, without limitation, dispositions and acquisitions) and other similar type events or circumstances.

(b) Rights as a Stockholder . To the extent granted by the Committee in its sole discretion, the Participant shall have, with respect to the shares of Restricted Stock, all of the rights of a holder of shares of Common Stock of the Company, including, without limitation, the right to receive dividends, the right to vote such shares and, subject to and conditioned upon the full vesting of shares of Restricted Stock, the right to tender such shares. If such rights to dividends are grant, the Committee may, in its sole discretion, determine at the time of grant that the payment of dividends shall be deferred until, and conditioned upon, the expiration of the applicable Restriction Period.

(c) Termination . Unless otherwise determined by the Committee at the time of grant or, if no rights of the Participant are reduced, thereafter, or as set forth in the applicable Award Agreement, subject to the applicable provisions of the Award Agreement and the Plan, upon a Participant’s Termination for any reason during the relevant Restriction Period, all Restricted Stock still subject to restriction will be forfeited in accordance with the terms and conditions established by the Committee at the time of grant or thereafter, or as set forth in the applicable Award Agreement.

(d) Lapse of Restrictions . If and when the Restriction Period expires without a prior forfeiture of the Restricted Stock, the certificates for such shares shall be delivered to the Participant, unless the Committee elects to use another system, such as book entries by the transfer agent. All legends shall be removed from said certificates at the time of delivery to the Participant, except as otherwise required by applicable law or other limitations imposed by the Committee.

 

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ARTICLE IX

OTHER STOCK-BASED AND CASH-BASED AWARDS

9.1 Other Stock-Based Awards . The Committee is authorized to grant to Eligible Individuals Other Stock-Based Awards that are payable in, valued in whole or in part by reference to, or otherwise based on or related to shares of Common Stock, including but not limited to, shares of Common Stock awarded purely as a bonus and not subject to restrictions or conditions, shares of Common Stock in payment of the amounts due under an incentive or performance plan sponsored or maintained by the Company or an Affiliate, stock equivalent units, restricted stock units, and Awards valued by reference to book value of shares of Common Stock. Other Stock-Based Awards may be granted either alone or in addition to or in tandem with other Awards granted under the Plan.

Subject to the provisions of the Plan, the Committee shall have authority to determine the Eligible Individuals, to whom, and the time or times at which, such Awards shall be made, the number of shares of Common Stock to be awarded pursuant to such Awards, and all other conditions of the Awards. The Committee may also provide for the grant of Common Stock under such Awards upon the completion of a specified Performance Period.

The Committee may condition the grant or vesting of Other Stock-Based Awards upon the attainment of specified Performance Goals as the Committee may determine in its sole discretion. If the grant of an Other Stock-Based Award or the lapse of restrictions is based on the attainment of Performance Goals, the Committee shall establish the Performance Goals and the applicable vesting percentage for the Other Stock-Based Awards applicable to each Participant or class of Participants in writing prior to the beginning of the applicable fiscal year or at such later date as otherwise determined by the Committee and while the outcome of the Performance Goals are substantially uncertain. Such Performance Goals may incorporate provisions for disregarding (or adjusting for) changes in accounting methods, corporate transactions (including, without limitation, dispositions and acquisitions) and other similar type events or circumstances.

9.2 Terms and Conditions . Other Stock-Based Awards made pursuant to this Article IX shall be subject to the following terms and conditions:

(a) Non-Transferability . Subject to the applicable provisions of the Award Agreement and the Plan, shares of Common Stock subject to Awards made under this Article IX may not be Transferred prior to the date on which the shares are issued, or, if later, the date on which any applicable restriction, performance or deferral period lapses.

 

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(b) Dividends . Unless otherwise determined by the Committee at the time of Award, subject to the provisions of the Award Agreement and the Plan, the recipient of an Award under this Article IX shall not be entitled to receive, currently or on a deferred basis, dividends or dividend equivalents in respect of the number of shares of Common Stock covered by the Award.

(c) Vesting . Any Award under this Article IX and any Common Stock covered by any such Award shall vest or be forfeited to the extent so provided in the Award Agreement, as determined by the Committee, in its sole discretion.

(d) Price . Common Stock issued on a bonus basis under this Article IX may be issued for no cash consideration. Common Stock purchased pursuant to a purchase right awarded under this Article IX shall be priced, as determined by the Committee in its sole discretion.

9.3 Other Cash-Based Awards . The Committee may from time to time grant Other Cash-Based Awards to Eligible Individuals in such amounts, on such terms and conditions, and for such consideration, including no consideration or such minimum consideration as may be required by applicable law, as it shall determine in its sole discretion. Other Cash-Based Awards may be granted subject to the satisfaction of vesting conditions or may be awarded purely as a bonus and not subject to restrictions or conditions, and if subject to vesting conditions, the Committee may accelerate the vesting of such Awards at any time in its sole discretion. The grant of an Other Cash-Based Award shall not require a segregation of any of the Company’s assets for satisfaction of the Company’s payment obligation thereunder.

ARTICLE X

TERMINATION OR AMENDMENT OF PLAN

10.1 Termination or Amendment . Notwithstanding any other provision of the Plan, the Board may at any time, and from time to time, amend, in whole or in part, any or all of the provisions of the Plan (including any amendment deemed necessary to ensure that the Company may comply with any regulatory requirement referred to in Article XIII hereof or Section 409A of the Code), or suspend or terminate it entirely, retroactively or otherwise; provided, however, that, unless otherwise required by law or specifically provided herein, the rights of a Participant with respect to Awards granted prior to such amendment, suspension or termination, may not be impaired without the consent of such Participant and, provided further, that without the approval of the holders of the Company’s Common Stock entitled to vote in accordance with applicable law, no amendment may be made that would (i) increase the aggregate number of shares of Common Stock that may be issued under the Plan (except by operation of Section 4.2 hereof) or (ii) require stockholder approval in order for the Plan to continue to comply with the applicable provisions of Section 422 of the Code to the extent applicable to Incentive Stock Options. The Committee may amend the terms of any Award theretofore granted, prospectively or retroactively, but, subject to Article IV hereof or as otherwise specifically provided herein, no such amendment or other action by the Committee shall impair the rights of any holder without

 

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the holder’s consent. Notwithstanding anything herein to the contrary, the Board may amend the Plan or any Award Agreement at any time without a Participant’s consent to comply with applicable law including Section 409A of the Code.

ARTICLE XI

COMPANY CALL RIGHTS; RIGHTS OF FIRST REFUSAL

11.1 Company Call Rights .

(a) In the event of a Participant’s Termination for Cause (or a voluntary Termination after the occurrence of an event that would be grounds for a Termination for Cause), the Company may at any time during the period commencing on the six (6)-month anniversary of such Termination and ending on the two (2)-year anniversary of such Termination repurchase from the Participant any shares of Common Stock previously acquired by the Participant through the exercise, grant or payment of an Award under the Plan at a repurchase price equal to the lesser of (i) the original purchase price or exercise price, as applicable (as appropriately adjusted to reflect stock splits, stock dividends, combinations of equity and other recapitalizations affecting the capital stock of the Company), if any, and (ii) Fair Market Value as of the date of the delivery of the notice described in Section 11.1(c) .

(b) In the event of a Participant’s Termination for any reason other than as described in Section 11.1(a) , the Company may at any time after six (6) months following the date on which a Participant incurs such Termination or acquires shares of Common Stock pursuant to an Award hereunder following such Termination: (i) repurchase from the Participant each outstanding vested Stock Option or Stock Appreciation Right based on the difference between the exercise price of a share of Common Stock relating to such Stock Option or Stock Appreciation Right and the Fair Market Value of a share of Common Stock on the date of repurchase, and (ii) repurchase from the Participant any shares of Common Stock previously acquired by the Participant pursuant to an Award under the Plan at a repurchase price equal to Fair Market Value as of the date of repurchase.

(c) If the Company elects to exercise the rights under this Section 11.1 , the Company shall do so by delivering to the Participant a notice of such election, specifying the number of shares to be purchased and the closing date and time of such purchase. Such closing shall take place within thirty (30) days following such notice at the Company’s principal executive offices. At such closing, the Company shall pay the Participant the repurchase price as specified in this Section 11.1 in cash, by cancellation of indebtedness of the Participant, with a promissory note bearing interest at the prime rate, as published by the Wall Street Journal , or any combination of the foregoing. The Company will be entitled to receive customary representations and warranties from the Participant regarding the Common Stock being repurchased including, but not limited to, the representation that the Participant has good and marketable title to the Common Stock to be repurchased free and clear of all liens, claims and other encumbrances.

(d) All repurchases shall be subject to applicable restrictions contained in the Delaware General Corporation Law and in the Company’s and its Subsidiaries’ debt financing agreements. If any such restrictions prohibit the repurchase of Common Stock for cash, the

 

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Company shall have the right to deliver, as payment of the repurchase price, a subordinated note or notes payable in up to five equal annual installments beginning on the first anniversary of the repurchase closing and bearing an annual interest rate compounded annually equal to the applicable federal rate then in effect (provided that such notes shall accelerate and be payable in full once the Company is permitted to repurchase the Common Stock or repay such notes under the debt financing agreements or, if earlier, upon a Sale of the Company. Any such notes issued by the Company shall be subject to any restrictive covenants in debt financing agreements to which the Company is subject at the time of the repurchase closing. If any such restrictions prohibit the repurchase of Common Stock for such subordinated notes, then the time periods provided herein for repurchases shall be suspended, and the Company may make such repurchases as soon as it is permitted to do so under such restrictions.

11.2 Effect of Initial Public Offering . Notwithstanding the foregoing, the Company shall cease to have rights pursuant to this Article XI following the completion of an Initial Public Offering.

11.3 Coordination with Stockholders Agreement .   The provisions of this Article XI (i) shall be coordinated with the Stockholders Agreement and any other applicable stockholders agreement to which a Participant is required to become a party as determined by the Committee in its sole discretion consistent with the provisions of Section 13.7 hereof, and (ii) may be modified, superseded or rendered inapplicable by such stockholders agreement(s) or other agreement or in an individual Award Agreement as determined by the Committee in its sole discretion.

ARTICLE XII

UNFUNDED STATUS OF PLAN

The Plan is intended to constitute an “unfunded” plan for incentive and deferred compensation. With respect to any payment as to which a Participant has a fixed and vested interest but which are not yet made to a Participant by the Company, nothing contained herein shall give any such Participant any right that is greater than those of a general unsecured creditor of the Company.

ARTICLE XIII

GENERAL PROVISIONS

13.1 Legend . The Committee may require each person receiving shares of Common Stock pursuant to a Stock Option or other Award under the Plan to represent to and agree with the Company in writing that the Participant is acquiring the shares without a view to distribution thereof. In addition to any legend required by the Plan, the certificates, if any, for such shares may include any legend that the Committee deems appropriate to reflect any restrictions on Transfer. All certificates for shares of Common Stock delivered under the Plan shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations and other requirements of the Securities and Exchange Commission, any stock exchange upon which the Common Stock is then listed or any national securities exchange system upon whose system the Common Stock is then quoted, any applicable federal or state securities law, and any applicable corporate law, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.

 

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13.2 Other Plans . Nothing contained in the Plan shall prevent the Board from adopting other or additional compensation arrangements, subject to stockholder approval if such approval is required, and such arrangements may be either generally applicable or applicable only in specific cases.

13.3 No Right to Employment/Directorship/Consultancy . Neither the Plan nor the grant of any Option or other Award hereunder shall give any Participant or other employee, Consultant or Non-Employee Director any right with respect to continuance of employment, consultancy or directorship by the Company or any Affiliate, nor shall there be a limitation in any way on the right of the Company or any Affiliate by which an employee is employed or a Consultant or Non-Employee Director is retained to terminate such employment, consultancy or directorship at any time.

13.4 Withholding of Taxes . The Company shall have the right to deduct from any payment to be made pursuant to the Plan, or to otherwise require, prior to the issuance or delivery of shares of Common Stock or the payment of any cash hereunder, payment by the Participant of, any federal, state or local taxes required by law to be withheld. Upon the vesting of Restricted Stock (or other Award that is taxable upon vesting), or upon making an election under Section 83(b) of the Code, a Participant shall pay all required withholding to the Company. Any statutorily required withholding obligation with regard to any Participant may be satisfied, subject to the consent of the Committee, by reducing the number of shares of Common Stock otherwise deliverable or by delivering shares of Common Stock already owned. Any fraction of a share of Common Stock required to satisfy such tax obligations shall be disregarded and the amount due shall be paid instead in cash by the Participant.

13.5 No Assignment of Benefits . No Award or other benefit payable under the Plan shall, except as otherwise specifically provided by law or permitted by the Committee, be Transferable in any manner, and any attempt to Transfer any such benefit shall be void, and any such benefit shall not in any manner be liable for or subject to the debts, contracts, liabilities, engagements or torts of any person who shall be entitled to such benefit, nor shall it be subject to attachment or legal process for or against such person.

13.6 Listing and Other Conditions .

(a) Unless otherwise determined by the Committee, as long as the Common Stock is listed on a national securities exchange or system sponsored by a national securities association, the issuance of shares of Common Stock pursuant to an Award shall be conditioned upon such shares being listed on such exchange or system. The Company shall have no obligation to issue such shares unless and until such shares are so listed, and the right to exercise any Option or other Award with respect to such shares shall be suspended until such listing has been effected.

(b) If at any time counsel to the Company shall be of the opinion that any sale or delivery of shares of Common Stock pursuant to an Option or other Award is or may in the

 

25


circumstances be unlawful or result in the imposition of excise taxes on the Company under the statutes, rules or regulations of any applicable jurisdiction, the Company shall have no obligation to make such sale or delivery, or to make any application or to effect or to maintain any qualification or registration under the Securities Act or otherwise, with respect to shares of Common Stock or Awards, and the right to exercise any Option or other Award shall be suspended until, in the opinion of said counsel, such sale or delivery shall be lawful or will not result in the imposition of excise taxes on the Company.

(c) Upon termination of any period of suspension under this Section 13.6 , any Award affected by such suspension which shall not then have expired or terminated shall be reinstated as to all shares available before such suspension and as to shares which would otherwise have become available during the period of such suspension, but no such suspension shall extend the term of any Award.

(d) A Participant shall be required to supply the Company with certificates, representations and information that the Company requests and otherwise cooperate with the Company in obtaining any listing, registration, qualification, exemption, consent or approval the Company deems necessary or appropriate.

13.7 Stockholders Agreement and Other Requirements . Notwithstanding anything herein to the contrary, as a condition to the receipt of shares of Common Stock pursuant to an Award under the Plan, the Participant shall execute and deliver a joinder to the Stockholders Agreement and the Registration Rights Agreement, and, to the extent required by the Committee in its sole discretion, such other documentation that shall set forth certain restrictions on transferability of the shares of Common Stock acquired upon exercise or purchase, and such other terms as the Board or Committee shall determine in good faith. Such Stockholders Agreement, Registration Rights Agreement and other documentation shall apply to the Common Stock acquired under the Plan and covered by such Stockholders Agreement, Registration Rights Agreement and other documentation. The Company may require, as a condition of exercise, the Participant to become a party to any other existing agreement related to the issuance or holding of shares of Common Stock.

13.8 Governing Law . The Plan and actions taken in connection herewith shall be governed and construed in accordance with the laws of the State of Delaware, without giving effect to principles of conflict of laws.

13.9 Jurisdiction; Waiver of Jury Trial . Any suit, action or proceeding with respect to the Plan or any Award Agreement, or any judgment entered by any court of competent jurisdiction in respect thereof, shall be resolved only in the courts of the State of Delaware or the United States District Court for the District of Delaware and the appellate courts having jurisdiction of appeals in such courts. In that context, and without limiting the generality of the foregoing, the Company and each Participant shall irrevocably and unconditionally (a) submit to the personal jurisdiction of all state and federal courts sitting in the State of Delaware, including to the jurisdiction of all courts to which an appeal may be taken from such courts, in any action, suit or proceeding arising out of or relating to the Plan or any Award Agreement, (b) agree that all claims in respect of any such action, suit or proceeding must be brought, heard and determined exclusively in the Court of Chancery of the State of Delaware (provided that, in the

 

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event subject matter jurisdiction is declined by or unavailable in the Court of Chancery, then such action, suit or proceeding will be heard and determined exclusively in any other state or federal court sitting in the State of Delaware), (c) agree not to attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such courts, (d) agree not to bring any action, suit or proceeding against any other Party arising out of or relating to the Plan or any Award Agreement in any other court, (e) waives any defense of inconvenient forum to the maintenance of any action, suit or proceeding so brought, (f) WAIVE ALL RIGHTS TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE PLAN OR ANY AWARD AGREEMENT and (g) agree that service of any process, summons, notice or document in accordance with any Award Agreement will be effective service of process for any action, suit or proceeding brought against it by the other party in connection with this Section 13.9 ; provided, however, that nothing contained herein will affect the right to serve legal process in any other manner permitted by applicable Law.

13.10 Construction . Wherever any words are used in the Plan in the masculine gender they shall be construed as though they were also used in the feminine gender in all cases where they would so apply, and wherever words are used herein in the singular form they shall be construed as though they were also used in the plural form in all cases where they would so apply.

13.11 Other Benefits . No Award granted or paid out under the Plan shall be deemed compensation for purposes of computing benefits under any retirement plan of the Company or its Affiliates nor affect any benefit under any other benefit plan now or subsequently in effect under which the availability or amount of benefits is related to the level of compensation.

13.12 No Right to Same Benefits . The provisions of Awards need not be the same with respect to each Participant, and such Awards to individual Participants need not be the same in subsequent years.

13.13 Death/Disability . The Committee may in its sole discretion require the transferee of a Participant to supply it with written notice of the Participant’s death or Disability and to supply it with a copy of the will (in the case of the Participant’s death) or such other evidence as the Committee deems necessary to establish the validity of the transfer of an Award. The Committee may also require that the agreement of the transferee to be bound by all of the terms and conditions of the Plan.

13.14 Section 409A of the Code . The Plan is intended to comply with the applicable requirements of Section 409A of the Code and shall be limited, construed and interpreted in accordance with such intent. To the extent that any Award is subject to Section 409A of the Code, it shall be paid in a manner that will comply with Section 409A of the Code, including proposed, temporary or final regulations or any other guidance issued by the Secretary of the Treasury and the Internal Revenue Service with respect thereto. Notwithstanding anything herein to the contrary, any provision in the Plan that is inconsistent with Section 409A of the Code shall be deemed to be amended to comply with Section 409A of the Code and to the extent such provision cannot be amended to comply therewith, such provision shall be null and void. The Company shall have no liability to a Participant, or any other party, if an Award that is

 

27


intended to be exempt from, or compliant with, Section 409A of the Code is not so exempt or compliant or for any action taken by the Committee or the Company and, in the event that any amount or benefit under the Plan becomes subject to penalties under Section 409A of the Code, responsibility for payment of such penalties shall rest solely with the affected Participants and not with the Company. Notwithstanding any contrary provision in the Plan or Award Agreement, any payment of “nonqualified deferred compensation” (within the meaning of Section 409A of the Code) that is otherwise required to be made under the Plan to a “specified employee” (as defined under Section 409A of the Code) as a result of such employee’s “separation from service” (as defined under Section 409A of the Code) shall be delayed for the first six (6) months following such separation from service (or, if earlier, the date of death of the specified employee) and shall instead be paid (in the manner set forth in the Award Agreement) upon expiration of such delay period.

13.15 Successor and Assigns . The Plan shall be binding on all successors and permitted assigns of a Participant, including, without limitation, the estate of such Participant and the executor, administrator or trustee of such estate.

13.16 Severability of Provisions . If any provision of the Plan shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions hereof, and the Plan shall be construed and enforced as if such provisions had not been included.

13.17 Payments to Minors, Etc . Any benefit payable to or for the benefit of a minor, an incompetent person or other person incapable of receipt thereof shall be deemed paid when paid to such person’s guardian or to the party providing or reasonably appearing to provide for the care of such person, and such payment shall fully discharge the Committee, the Board, the Company, its Affiliates and their employees, agents and representatives with respect thereto.

13.18 Lock-Up Agreements . As a condition to the grant of an Award, if requested by the Company and the lead underwriter of any public offering of the Common Stock (the “ Lead Underwriter ”) , a Participant shall irrevocably agree not to sell, contract to sell, grant any option to purchase, transfer the economic risk of ownership in, make any short sale of, pledge or otherwise transfer or dispose of, any interest in any Common Stock or any securities convertible into, derivative of, or exchangeable or exercisable for, or any other rights to purchase or acquire Common Stock (except Common Stock included in such public offering or acquired on the public market after such offering) during such period of time following the effective date of a registration statement of the Company filed under the Securities Act that the Lead Underwriter shall specify (the “ Lock-Up Period ”). The Participant shall further agree to sign such documents as may be requested by the Lead Underwriter to effect the foregoing and agree that the Company may impose stop-transfer instructions with respect to Common Stock acquired pursuant to an Award until the end of such Lock-Up Period.

13.19 Headings and Captions . The headings and captions herein are provided for reference and convenience only, shall not be considered part of the Plan, and shall not be employed in the construction of the Plan.

 

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ARTICLE XIV

EFFECTIVE DATE OF PLAN

The Plan shall become effective on January 31, 2014, which is the date of its adoption by the Board, subject to the approval of the Plan by the stockholders of the Company in accordance with the requirements of the laws of the State of Delaware.

ARTICLE XV

TERM OF PLAN

No Award shall be granted pursuant to the Plan on or after the tenth (10th) anniversary of the earlier of the date that the Plan is adopted or the date of stockholder approval, but Awards granted prior to such tenth (10th) anniversary may extend beyond that date.

 

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Exhibit 10.13

[Form Adopted on December 17, 2015 for Directors]

NON-QUALIFIED STOCK OPTION AWARD AGREEMENT

PURSUANT TO THE

J.A. COSMETICS HOLDINGS, INC. 2014 EQUITY INCENTIVE PLAN

*  *  *  *  *

Participant: [                    ]

Grant Date: [            ], 20[    ]

Per Share Exercise Price: $[        ]

Number of Option Shares: [                ]

*  *  *  *  *

THIS NON-QUALIFIED STOCK OPTION AWARD AGREEMENT (this “ Agreement ”), dated as of the Grant Date specified above, is entered into by and between J.A. Cosmetics Holdings, Inc., a Delaware corporation (the “ Company ”), and the Participant specified above, pursuant to the J.A. Cosmetics Holdings, Inc. 2014 Equity Incentive Plan, as in effect and as amended from time to time (the “ Plan ”), which is administered by the Committee; and

WHEREAS, it has been determined under the Plan that it would be in the best interests of the Company to grant the Stock Option provided for herein to the Participant.

NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth and for other good and valuable consideration, the parties hereto hereby mutually covenant and agree as follows:

1. Incorporation By Reference; Plan Document Receipt . This Agreement is subject in all respects to the terms and provisions of the Plan (including, without limitation, any amendments thereto adopted at any time and from time to time), all of which terms and provisions are made a part of and incorporated in this Agreement as if they were each expressly set forth herein. Any capitalized term not defined in this Agreement shall have the same meaning as is ascribed thereto in the Plan. The Participant hereby acknowledges receipt of a true copy of the Plan and that the Participant has read the Plan carefully and fully understands its content. In the event of any conflict between the terms of this Agreement and the terms of the Plan, the terms of the Plan shall control. No part of the Stock Option granted hereby is intended to qualify as an “incentive stock option” under Section 422 of the Code.

2. Grant of Option . The Company hereby grants to the Participant, as of the Grant Date specified above, a Stock Option (the “ Option ”) to acquire from the Company at the Per Share Exercise Price specified above, the aggregate number of shares of Common Stock specified above (the “ Option Shares ”). Except as otherwise provided by the Plan, the Participant agrees and understands that nothing contained in this Agreement provides, or is intended to provide, the Participant with any protection against potential future dilution of the Participant’s interest in the Company for any reason. The Participant shall have no rights as a stockholder


with respect to any shares of Common Stock covered by the Option unless and until the Participant has become the holder of record of such shares, and no adjustments shall be made for dividends in cash or other property, distributions or other rights in respect of any such shares, except as otherwise specifically provided for in the Plan or this Agreement.

3. Vesting and Exercise; Option Term .

(a) Vesting and Exercise . The Option shall become vested and exercisable in accordance with the provisions of Exhibit A hereto.

(b) Expiration . Unless earlier terminated in accordance with the terms and provisions of the Plan and/or this Agreement, all portions of the Option (whether vested or not vested) shall expire and shall no longer be exercisable after the expiration of ten (10) years from the Grant Date.

(c) Early Exercise . Notwithstanding any other provision herein to the contrary, Participant may elect at any time before Participant’s Termination to exercise the Option as to any part or all of the Common Stock subject to the Option prior to the full vesting and exercisability of the Option (an “ Early Exercise ”). In the event of such an exercise, the Option Shares shall remain subject to the otherwise applicable vesting conditions under the Option. Any Option Shares so purchased may be made subject to a repurchase option in favor of the Company or to any other restriction that the Board or the Committee determines to be appropriate. Participant shall be entitled to exercise Participant’s Options in accordance with this Section 3(c) only if, within thirty (30) days following such exercise, Participant makes an election under Section 83(b) of the Code in accordance with the requirements thereunder with respect to any Option Shares acquired in connection with the early exercise of the Option pursuant to this Section 3(c). In the event that Participant does not timely make such election, Participant’s Option Shares shall be immediately forfeited.

(d) Repurchase Upon Termination . In the event of Participant’s Termination (for any reason) prior to full vesting, any unvested Option Shares held by Participant pursuant to Section 3(c) shall be forfeited, and the Company shall, subject to the Restrictions, purchase the unvested Option Shares of Participant at a price equal to the lesser of the purchase price paid for such Option Shares and the Fair Market Value of such Option Shares on the date of forfeiture.

(e) Closing . If the payment by the Company for unvested Option shares following a Participant’s Termination is not permitted by virtue of (i) any restrictions on repurchase of the Company’s common stock or payments by the Company under applicable law or contained in any loan agreements, indentures, promissory notes, leases, guaranties, certificate of designations, certificate of incorporation or other financing agreements to which the Company or its Subsidiaries is a party, and (ii) following a Public Offering, any restrictions on the purchase or sale of the Company’s securities contained in any securities trading policy of the Company (clauses (i) and (ii), collectively, the “ Restrictions ”), such rights and obligations shall be tolled without interest until such time as performance by the Company would be permitted under the Restrictions. Subject to the preceding sentence, the closing of any such repurchase shall occur within 30 days following a Participant’s exercise or Termination, as the case may be. The Company may condition payment of any such amounts upon receipt from the Participant of a release agreement acceptable to the Company.

 

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4. Termination . Subject to the terms of this Agreement, which shall supersede any provisions of the Plan to the contrary, the Option, to the extent vested at the time of the Participant’s Termination, shall remain exercisable as follows:

(a) General . Except as otherwise provided in Sections 4(b) and 4(c) hereof, in the event of the Participant’s Termination for any reason, the vested portion of the Option shall remain exercisable until the earlier of (i) ninety (90) days from the date of such Termination, and (ii) the expiration of the stated term of the Option pursuant to Section 3(b) hereof.

(b) Termination due to Death or Disability . In the event of the Participant’s Termination by reason of death or Disability, the vested portion of the Option shall remain exercisable until the earlier of (i) one (1) year from the date of such Termination, and (ii) the expiration of the stated term of the Option pursuant to Section 3(b) hereof.

(c) Termination for Cause . In the event of the Participant’s Termination for Cause or in the event of the Participant’s voluntary Termination after the occurrence of an event that would be grounds for a Termination for Cause, the Participant’s entire Option (whether or not vested) shall terminate and expire upon such Termination.

(d) Treatment of Unvested Options upon Termination . Any portion of the Option that is not vested as of the date of the Participant’s Termination for any reason shall terminate and expire as of the date of such Termination.

5. Method of Exercise and Payment . Subject to Section 11 hereof, to the extent that the Option has become vested and exercisable with respect to a number of shares of Common Stock as provided herein, the Option may thereafter be exercised by the Participant, in whole or in part, at any time or from time to time prior to the expiration of the Option as provided herein and in accordance with Sections 6.4(c) and 6.4(d) of the Plan, including, without limitation, by the filing of any written form of exercise notice as may be required by the Committee and payment in full of the Per Share Exercise Price specified above multiplied by the number of shares of Common Stock underlying the portion of the Option exercised. If the shares underlying the portion of the Option exercised are not freely tradable by the Participant on a public securities exchange at the time of exercise, the Participant shall be entitled at his election to require the Company to withhold a number of Option Shares (determined based on the Fair Market Value of the Option Shares on the payment date as determined by the Committee) that would otherwise be issued upon exercise to satisfy the aggregate Per Share Exercise Price and applicable withholding taxes in respect of such exercise (based on minimum applicable statutory withholding rates, as determined on the date that the amount of tax to be withheld is determined).

6. Non-Transferability . The Option, and any rights and interests with respect thereto, including this Agreement, issued under this Agreement and the Plan shall not be sold, exchanged, transferred, assigned or otherwise disposed of in any way by the Participant (or any beneficiary of the Participant), other than by testamentary disposition by the Participant or the laws of descent and distribution. Notwithstanding the foregoing, the Committee may, in its sole

 

3


discretion, permit the Option to be Transferred to a Family Member for no value, provided that such Transfer shall only be valid upon execution of a written instrument in form and substance acceptable to the Committee in its sole discretion evidencing such Transfer and the transferee’s acceptance thereof signed by the Participant and the transferee, and provided , further , that the Option may not be subsequently Transferred other than by will or by the laws of descent and distribution or to another Family Member (as permitted by the Committee in its sole discretion) in accordance with the terms of the Plan and this Agreement, and shall remain subject to the terms of the Plan and this Agreement.   Any attempt to sell, exchange, transfer, assign, pledge, encumber or otherwise dispose of or hypothecate in any way the Option, or the levy of any execution, attachment or similar legal process upon the Option, contrary to the terms and provisions of this Agreement and/or the Plan shall be null and void and without legal force or effect.

7. Stockholders Agreement and Other Requirements . As a condition to the issuance of shares of Common Stock upon exercise of the Option, to the extent required by the Committee, the Participant shall execute and deliver a joinder to the Stockholders Agreement (the “ Stockholders Agreement ”) and the Registration Rights Agreement (the “ Registration Rights Agreement ”), each entered into among the Company and its stockholders as of January 31, 2014 (in each case with such amendments or modifications approved in accordance with the terms of such agreement), and, to the extent required by the Board or Committee in their sole discretion, any transfer restriction policy applicable to employees of the Company that is adopted in the context of insider trading or similar laws. Such Stockholders Agreement, Registration Rights Agreement and other documentation shall apply to the shares of Common Stock acquired under the Plan and covered by such Stockholders Agreement, Registration Rights Agreement and other documentation. The Company may require, as a condition of exercise, the Participant to become a party to any other existing agreement related to the issuance or holding of shares of Common Stock; provided, however, that unless otherwise required by applicable law, no such agreement shall impair the rights of the Participant without the consent of the Participant.

8. Company Call Rights . Subject to the provisions of any document to which the Participant is required to become a party pursuant to Section 7 hereof, the Option shall be subject to the Company call rights set forth in Article XI of the Plan. To ensure that the Common Stock issuable upon exercise of the Option is not Transferred in contravention of the terms of the Plan and this Agreement, and to ensure compliance with other provisions of the Plan and this Agreement, the Company may deposit the certificates (if any) evidencing the Common Stock to be issued upon the exercise of the Option with an escrow agent designated by the Company.

9. Securities Representations . Upon the exercise of the Option prior to the registration of the Common Stock to be issued hereunder pursuant to the Securities Act or other applicable securities laws, the Participant shall be deemed to acknowledge and make the following representations and warranties and as otherwise may be requested by the Company for compliance with applicable laws, and any issuances of Common Stock by the Company hereunder shall be made in reliance upon the express representations and warranties of the Participant:

(a) The Participant is acquiring and will hold the Common Stock to be issued hereunder for investment for the Participant’s account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act or other applicable securities laws.

 

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(b) The Participant has been advised that the shares of Common Stock to be issued hereunder have not been registered under the Securities Act or other applicable securities laws, on the ground that no distribution or public offering of such Common Stock is to be effected (it being understood, however, that such Common Stock is being issued and sold in reliance on an exemption from registration under the Securities Act), and that such Common Stock must be held indefinitely, unless it is subsequently registered under the applicable securities laws or the Participant obtains an opinion of counsel (in the form and substance satisfactory to the Company and its counsel) that registration is not required. In connection with the foregoing, the Company is relying in part on the Participant’s representations set forth in this Section 9 . The Participant further acknowledges and understands that the Company is under no obligation hereunder to register the Common Stock to be issued hereunder.

(c) The Participant is aware of the adoption of Rule 144 by the United States Securities and Exchange Commission under the Securities Act, which permits limited public resales of securities acquired in a non-public offering, subject to the satisfaction of certain conditions. The Participant acknowledges that the Participant is familiar with the conditions for resale set forth in Rule 144, and acknowledges and understands that the conditions for resale set forth in Rule 144 may not have been satisfied and that the Company has no plans to satisfy these conditions in the foreseeable future.

(d) The Participant will not Transfer the Common Stock deliverable upon exercise of the Option in violation of the Plan, this Agreement, the Securities Act (or the rules and regulations promulgated thereunder) or under any other applicable securities laws. The Participant agrees that the Participant will not dispose of the Common Stock to be issued hereunder unless and until the Participant has complied with all requirements of the Plan and this Agreement applicable to the disposition of such Common Stock.

(e) The Participant has been furnished with, and has had access to, such information as the Participant considers necessary or appropriate for deciding whether to invest in the Common Stock to be issued hereunder, and the Participant has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the issuance of such Common Stock.

(f) The Participant is aware that an investment in the Company is a speculative investment that has limited liquidity and is subject to the risk of complete loss. The Participant is able, without impairing the Participant’s financial condition, to hold the Common Stock to be issued hereunder for an indefinite period and to suffer a complete loss of the Participant’s investment in such Common Stock.

10. Governing Law . All questions concerning the construction, validity and interpretation of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the choice of law principles thereof.

 

5


11. Withholding of Tax . The Company shall have the power and the right to deduct or withhold, or require the Participant to remit to the Company, an amount sufficient to satisfy any federal, state, local and foreign taxes of any kind (including, but not limited to, the Participant’s FICA and SDI obligations) which the Company, in its sole discretion, deems necessary to be withheld or remitted to comply with the Code and/or any other applicable law, rule or regulation with respect to the Option and, if the Participant fails to do so, the Company may otherwise refuse to issue or transfer any Common Stock otherwise required to be issued pursuant to this Agreement. Any statutorily required minimum withholding obligation with regard to the Participant may be satisfied by reducing the amount of cash or Common Stock otherwise deliverable upon exercise of the Option.

12. Entire Agreement; Amendment . This Agreement, together with the Plan, the Stockholders Agreement and the Registration Rights Agreement, contain the entire agreement between the parties hereto with respect to the subject matter contained herein, and supersedes all prior agreements or prior understandings, whether written or oral, between the parties relating to such subject matter. The Committee shall have the right, in its sole discretion, to modify or amend this Agreement from time to time in accordance with and as provided in the Plan; provided , however , that, unless otherwise required by law, no amendment or modification shall impair the rights of the Participant without the consent of the Participant. This Agreement may also be modified or amended by a writing signed by both the Company and the Participant. The Company shall give written notice to the Participant of any such modification or amendment of this Agreement as soon as practicable after the adoption thereof.

13. Notices . Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, or received by certified mail, return receipt requested, or sent by reputable overnight courier service (charges prepaid) to the Company at the address set forth below to the Participant at such address as indicated by the Company’s records or at such address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party. Notices will be deemed to have been given hereunder (i) when delivered personally to the recipient, (ii) one (1) business day after being sent to the recipient by reputable overnight courier service (charges prepaid), (iii) upon machine-generated acknowledgment of receipt after transmittal by facsimile if so acknowledged to have been received before 5:00 p.m. on a business day at the location of receipt and otherwise on the next following business day, provided that such notice, demand or other communication is also deposited within 24 hours thereafter with a reputable overnight courier service (charges prepaid) for delivery to the same Person, (iv) upon transmittal by e-mail if transmitted before 5:00 p.m. (on a business day) in the time zone of the address (which address is determined in the preceding sentence) of the recipient and otherwise on the next following business day, or (iv) five (5) days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. The Company’s address is:

J.A. Cosmetics Holdings, Inc.

570 10 th Street, 3 rd Floor

Oakland, California 94607

Attention: General Counsel

Fax: ###

Email: ###

 

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with copies (which shall not constitute notice) to:

Kirkland & Ellis LLP

333 South Hope Street, 29th Floor

Los Angeles, California 90071

Attention:   ###
Facsimile:   ###
Email:   ###

14. No Right to Employment or Service . Any questions as to whether and when there has been Termination shall be determined in the sole discretion of the Committee. Nothing in this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries or its Affiliates to terminate the Participant’s employment or service at any time, for any reason and with or without Cause.

15. Transfer of Personal Data .   The Participant authorizes, agrees and unambiguously consents to the transmission by the Company (or any Subsidiary) of any personal data information related to the Option awarded under this Agreement solely for legitimate business purposes (including, without limitation, the administration of the Plan). This authorization and consent is freely given by the Participant. The Company shall take all reasonable steps necessary or appropriate to protect the confidentiality of such personal data information and comply with all laws applicable thereto.

16. Compliance with Laws . The issuance of the Option (and the Option Shares upon exercise of the Option) pursuant to this Agreement shall be subject to, and shall comply with, any applicable requirements of any foreign and U.S. federal and state securities laws, rules and regulations and any other law or regulation applicable thereto. The Company shall not be obligated to issue the Option or any of the Option Shares pursuant to this Agreement if any such issuance would violate any such requirements. As a condition to the issuance of the Option Shares upon exercise of the Option, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate to evidence compliance with any applicable law or regulation.

17. Section 409A . Notwithstanding anything herein or in the Plan to the contrary, the Option is intended to be exempt from the applicable requirements of Section 409A of the Code and shall be limited, construed and interpreted in accordance with such intent.

18. Binding Agreement; Assignment . This Agreement, including as provided in Section 6 hereof, shall inure to the benefit of, be binding upon, and be enforceable by the Company and its successors and assigns. The Participant shall not assign (except as otherwise expressly provided herein) any part of this Agreement without the prior express written consent of the Company.

19. Headings . The titles and headings of the various sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of this Agreement.

 

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20. Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument.

21. Further Assurances . Each party hereto shall do and perform (or shall cause to be done and performed) all such further acts and shall execute and deliver all such other agreements, certificates, instruments and documents as either party hereto reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the Plan and the consummation of the transactions contemplated thereunder.

22. Severability . The invalidity or unenforceability of any provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of any provision of this Agreement in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law. Upon such determination that any provision hereunder, or the application of any such provision, is invalid, illegal, void or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the greatest extent possible. To the extent that the parties hereto cannot agree on a modification to this Agreement pursuant to the preceding sentence, it is the intention of the parties that the invalid, illegal, void or unenforceable provision of this Agreement may be modified or amended by the court to render it enforceable to the maximum extent permitted under applicable law.

23. Acquired Rights . The Participant acknowledges and agrees that: (a) the Company may terminate or amend the Plan at any time, subject to the provisions of the Plan; (b) the award of the Option made under this Agreement is completely independent of any other award or grant and is made at the sole discretion of the Company; (c) no past grants or awards (including, without limitation, the Option awarded hereunder) give the Participant any right to any grants or awards in the future whatsoever; and (d) any benefits granted under this Agreement are not part of the Participant’s ordinary salary, and shall not be considered as part of such salary in the event of severance, redundancy or resignation.

*        *        *         *        *        *

 

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IN WITNESS WHEREOF , the parties hereto have executed this Agreement as of the date first written above.

 

J.A. COSMETICS HOLDINGS, INC.
By:  

 

Name:  

 

Title:  

 

PARTICIPANT

 

[                    ]

Signature Page to Non-Qualified Stock Option Award Agreement


EXHIBIT A

VESTING AND EXERCISE

1. General .

(a) All of the Option Shares subject to the Option shall vest and become exercisable as follows, provided that the Participant has not incurred a Termination prior to the applicable “Vesting Date” as defined below:

 

Vesting Date

   Vested Percentage of Option Shares  

[            ], 2016

     20

[            ], 2017

     40

[            ], 2018

     60

[            ], 2019

     80

[            ], 2020

     100

There shall be no proportionate or partial vesting in the periods prior to each vesting date set forth above (each, a “ Vesting Date ”) and all vesting shall occur only on the appropriate Vesting Date, subject to the Participant’s continued service with the Company or any of its Subsidiaries on each applicable Vesting Date, subject to Section 1(b) of this Exhibit A . Upon expiration of the Option, the Option shall be cancelled and no longer exercisable.

(b) Accelerated Vesting . The unvested portion of the Option shall become fully and immediately vested and exercisable upon a Sale of the Company (as such term is defined in the Stockholders Agreement), so long as the Participant has not incurred a Termination prior thereto. If Participant’s directorship is terminated due to Participant’s death or Disability, then the portion of the Option which would have vested within twelve (12) months following the Termination date but for such Termination shall become fully and immediately vested and exercisable.

2. Miscellaneous Provisions Applicable to Vesting .

(a) Escrow Holdbacks following a Sale of the Company . In connection with a Sale of the Company, if any portion of the transaction consideration to be received by equityholders of the Company is subject to any transaction escrow arrangement or indemnity holdback, a pro rata portion of the proceeds to be received by the Participant in respect of the Option or the shares of Common Stock to be issued upon exercise of the Option may be made subject to such transaction escrow arrangement or indemnity holdback on the same basis as the transaction consideration to be received by such equityholders is made subject to such transaction escrow arrangement or indemnity holdback (taking into account any applicable requirements under Section 409A of the Code).

(b) Termination of Unvested Option . Any portion of the Option that does not become vested and exercisable in accordance with the provisions of this Exhibit A shall be automatically forfeited and cancelled for no value without any consideration being paid therefor and otherwise without any further action of the Company whatsoever.

(c) Committee Discretion to Accelerate Vesting . Notwithstanding the foregoing, the Committee may, in its sole discretion, provide for accelerated vesting of any portion of the Option at any time and for any reason.

 

A-1


[Form Adopted on December 17, 2015 for Senior Executives]

NON-QUALIFIED STOCK OPTION AWARD AGREEMENT

PURSUANT TO THE

J.A. COSMETICS HOLDINGS, INC. 2014 EQUITY INCENTIVE PLAN

*  *  *  *  *

Participant: [                    ]

Grant Date: [            ], 20[    ]

Per Share Exercise Price: $[        ]

Number of Option Shares: [                ]

*  *  *  *  *

THIS NON-QUALIFIED STOCK OPTION AWARD AGREEMENT (this “ Agreement ”), dated as of the Grant Date specified above, is entered into by and between J.A. Cosmetics Holdings, Inc., a Delaware corporation (the “ Company ”), and the Participant specified above, pursuant to the J.A. Cosmetics Holdings, Inc. 2014 Equity Incentive Plan, as in effect and as amended from time to time (the “ Plan ”), which is administered by the Committee; and

WHEREAS, it has been determined under the Plan that it would be in the best interests of the Company to grant the Stock Option provided for herein to the Participant.

NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth and for other good and valuable consideration, the parties hereto hereby mutually covenant and agree as follows:

1. Incorporation By Reference; Plan Document Receipt . This Agreement is subject in all respects to the terms and provisions of the Plan (including, without limitation, any amendments thereto adopted at any time and from time to time), all of which terms and provisions are made a part of and incorporated in this Agreement as if they were each expressly set forth herein. Any capitalized term not defined in this Agreement shall have the same meaning as is ascribed thereto in the Plan. The Participant hereby acknowledges receipt of a true copy of the Plan and that the Participant has read the Plan carefully and fully understands its content. In the event of any conflict between the terms of this Agreement and the terms of the Plan, the terms of the Plan shall control. No part of the Stock Option granted hereby is intended to qualify as an “incentive stock option” under Section 422 of the Code.

2. Grant of Option . The Company hereby grants to the Participant, as of the Grant Date specified above, a Stock Option (the “ Option ”) to acquire from the Company at the Per Share Exercise Price specified above, the aggregate number of shares of Common Stock specified above (the “ Option Shares ”). Except as otherwise provided by the Plan, the Participant agrees and understands that nothing contained in this Agreement provides, or is intended to provide, the Participant with any protection against potential future dilution of the Participant’s interest in the Company for any reason. The Participant shall have no rights as a stockholder


with respect to any shares of Common Stock covered by the Option unless and until the Participant has become the holder of record of such shares, and no adjustments shall be made for dividends in cash or other property, distributions or other rights in respect of any such shares, except as otherwise specifically provided for in the Plan or this Agreement.

3. Vesting and Exercise; Option Term .

(a) Vesting and Exercise . The Option shall become vested and exercisable in accordance with the provisions of Exhibit A hereto.

(b) Expiration . Unless earlier terminated in accordance with the terms and provisions of the Plan and/or this Agreement, all portions of the Option (whether vested or not vested) shall expire and shall no longer be exercisable after the expiration of ten (10) years from the Grant Date.

(c) Early Exercise . Notwithstanding any other provision herein to the contrary, Participant may elect at any time before Participant’s Termination to exercise the Option as to any part or all of the Common Stock subject to the Option prior to the full vesting and exercisability of the Option (an “ Early Exercise ”). In the event of such an exercise, the Option Shares shall remain subject to the otherwise applicable vesting conditions under the Option. Any Option Shares so purchased may be made subject to a repurchase option in favor of the Company or to any other restriction that the Board or the Committee determines to be appropriate. Participant shall be entitled to exercise Participant’s Options in accordance with this Section 3(c) only if, within thirty (30) days following such exercise, Participant makes an election under Section 83(b) of the Code in accordance with the requirements thereunder with respect to any Option Shares acquired in connection with the early exercise of the Option pursuant to this Section 3(c). In the event that Participant does not timely make such election, Participant’s Option Shares shall be immediately forfeited.

(d) Repurchase Right . With respect to any unvested Option Shares purchased as an Early Exercise from the exercise of the Performance Vesting Tranche of the Option (“ Performance Vesting Option Shares ”), Participant shall be entitled to a right to require the Company to repurchase the Performance Vesting Option Shares from Participant at a price equal to the lesser of the purchase price paid for the Performance Vesting Option Shares and the Fair Market Value of such Performance Vesting Option Shares on such date of repurchase; provided that the exercise of such repurchase right shall be conditioned upon (i) any restrictions on repurchase of the Company’s common stock or payments by the Company under applicable law or contained in any loan agreements, indentures, promissory notes, leases, guaranties, certificate of designations, certificate of incorporation or other financing agreements to which the Company or its Subsidiaries is a party, and (ii) following a Public Offering, any restrictions on the purchase or sale of the Company’s securities contained in any securities trading policy of the Company (clauses (i) and (ii), collectively, the “ Restrictions ”).

(e) Repurchase Upon Termination . In the event of Participant’s Termination (for any reason) prior to full vesting, any unvested Option Shares held by Participant pursuant to Section 3(c) shall be forfeited, and the Company shall, subject to the Restrictions, purchase the unvested Option Shares of Participant at a price equal to the lesser of the purchase price paid for such Option Shares and the Fair Market Value of such Option Shares on the date of forfeiture.

(f) Closing . If the exercise of Participant’s repurchase right or payment by the Company for unvested Option shares following a Participant’s Termination is not permitted by virtue of the Restrictions, such rights and obligations shall be tolled without interest until such time as performance by the Company would be permitted under the Restrictions. Subject to the preceding sentence, the closing of any such repurchase shall occur within 30 days following a Participant’s exercise or Termination, as the case may be. The Company may condition payment of any such amounts upon receipt from the Participant of a release agreement acceptable to the Company.

 

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4. Termination . Subject to the terms of this Agreement, which shall supersede any provisions of the Plan to the contrary, the Option, to the extent vested at the time of the Participant’s Termination, shall remain exercisable as follows:

(a) General . Except as otherwise provided in Sections 4(b) and 4(c) hereof, in the event of the Participant’s Termination for any reason, the vested portion of the Option shall remain exercisable until the earlier of (i) ninety (90) days from the date of such Termination, and (ii) the expiration of the stated term of the Option pursuant to Section 3(b) hereof.

(b) Termination due to Death or Disability or by the Company without Cause or by the Participant with Good Reason . In the event of the Participant’s Termination by reason of death or Disability, by the Company without Cause or by the Participant with Good Reason (as such terms are defined in the Employment Agreement among the Participant, the Company and J.A. Cosmetics US, Inc., (the “ Employment Agreement ”)), the vested portion of the Option shall remain exercisable until the earlier of (i) one (1) year from the date of such Termination, and (ii) the expiration of the stated term of the Option pursuant to Section 3(b) hereof.

(c) Termination for Cause . In the event of the Participant’s Termination for Cause or in the event of the Participant’s voluntary Termination after the occurrence of an event that would be grounds for a Termination for Cause, the Participant’s entire Option (whether or not vested) shall terminate and expire upon such Termination.

(d) Treatment of Unvested Options upon Termination . Subject to Section 2(c) of Exhibit A , any portion of the Option that is not vested as of the date of the Participant’s Termination for any reason shall terminate and expire as of the date of such Termination.

5. Method of Exercise and Payment . Subject to Section 12 hereof, to the extent that the Option has become vested and exercisable with respect to a number of shares of Common Stock as provided herein, the Option may thereafter be exercised by the Participant, in whole or in part, at any time or from time to time prior to the expiration of the Option as provided herein and in accordance with Sections 6.4(c) and 6.4(d) of the Plan, including, without limitation, by the filing of any written form of exercise notice as may be required by the

 

3


Committee and payment in full of the Per Share Exercise Price specified above multiplied by the number of shares of Common Stock underlying the portion of the Option exercised. If the shares underlying the portion of the Option exercised are not freely tradable by the Participant on a public securities exchange at the time of exercise, the Participant shall be entitled at his election to require the Company to withhold a number of Option Shares (determined based on the Fair Market Value of the Option Shares on the payment date as determined by the Committee) that would otherwise be issued upon exercise to satisfy the aggregate Per Share Exercise Price and applicable withholding taxes in respect of such exercise (based on minimum applicable statutory withholding rates, as determined on the date that the amount of tax to be withheld is determined).

6. Non-Transferability . The Option, and any rights and interests with respect thereto, including this Agreement, issued under this Agreement and the Plan shall not be sold, exchanged, transferred, assigned or otherwise disposed of in any way by the Participant (or any beneficiary of the Participant), other than by testamentary disposition by the Participant or the laws of descent and distribution. Notwithstanding the foregoing, the Committee may, in its sole discretion, permit the Option to be Transferred to a Family Member for no value, provided that such Transfer shall only be valid upon execution of a written instrument in form and substance acceptable to the Committee in its sole discretion evidencing such Transfer and the transferee’s acceptance thereof signed by the Participant and the transferee, and provided , further , that the Option may not be subsequently Transferred other than by will or by the laws of descent and distribution or to another Family Member (as permitted by the Committee in its sole discretion) in accordance with the terms of the Plan and this Agreement, and shall remain subject to the terms of the Plan and this Agreement.   Any attempt to sell, exchange, transfer, assign, pledge, encumber or otherwise dispose of or hypothecate in any way the Option, or the levy of any execution, attachment or similar legal process upon the Option, contrary to the terms and provisions of this Agreement and/or the Plan shall be null and void and without legal force or effect.

7. Stockholders Agreement and Other Requirements . As a condition to the issuance of shares of Common Stock upon exercise of the Option, to the extent required by the Committee, the Participant shall execute and deliver a joinder to the Stockholders Agreement (the “ Stockholders Agreement ”) and the Registration Rights Agreement (the “ Registration Rights Agreement ”), each entered into among the Company and its stockholders as of January 31, 2014 (in each case with such amendments or modifications approved in accordance with the terms of such agreement), and, to the extent required by the Board or Committee in their sole discretion, any transfer restriction policy applicable to employees of the Company that is adopted in the context of insider trading or similar laws. Such Stockholders Agreement, Registration Rights Agreement and other documentation shall apply to the shares of Common Stock acquired under the Plan and covered by such Stockholders Agreement, Registration Rights Agreement and other documentation. The Company may require, as a condition of exercise, the Participant to become a party to any other existing agreement related to the issuance or holding of shares of Common Stock; provided, however, that unless otherwise required by applicable law, no such agreement shall impair the rights of the Participant without the consent of the Participant.

8. Company Call Rights . Subject to the provisions of any document to which the Participant is required to become a party pursuant to Section 7 hereof, the Option shall be subject to the Company call rights set forth in Article XI of the Plan. To ensure that the Common Stock

 

4


issuable upon exercise of the Option is not Transferred in contravention of the terms of the Plan and this Agreement, and to ensure compliance with other provisions of the Plan and this Agreement, the Company may deposit the certificates (if any) evidencing the Common Stock to be issued upon the exercise of the Option with an escrow agent designated by the Company.

9. Restrictive Covenants .

(a) Non-Compete . The Participant agrees that during the Participant’s employment with the Company and its Subsidiaries and for one (1) year following the Termination thereof (the “ Restricted Period ”), the Participant shall not, anywhere in the areas where the Company or any of its Subsidiaries conducts business during such employment (the “ Restricted Territory ”), directly or indirectly, own, manage, operate, join, control or participate in the ownership, management, operation or control of, or be an officer or an employee of any business or organization that, directly or indirectly, develops, processes, packages, markets, promotes or sells color cosmetics or related services in the Restricted Territories (each, a “ Restricted Business ”). The foregoing shall not restrict the Participant from (a) owning up to 5% of any class of securities of any person engaged in a Restricted Business if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Exchange Act, as long as such securities are held solely as a passive investment and not with a view to influencing, controlling or directing the affairs of such person), or (b) following the Participant’s termination of employment, being an officer, director, employee, shareholder, consultant, contractor, partner, joint venturer, agent, equity owner or acting in another capacity of or for (i) a business that principally sells retail goods (such as Wal Mart) for which sales of products manufactured by a Restricted Business generate less than 10 percent of its revenue or (ii) a business entity that has multiple lines of business, some of which are not a Restricted Business, so long as the Participant’s services for such entity are restricted so that he will provide no services or other assistance in support of, and will not otherwise be involved with, any Restricted Business conducted by such entity (except that the Participant shall be permitted to serve in a management capacity with responsibility for multiple product lines so long as such responsibility does not cover product lines for which more than 10 percent of the collective revenues are generated by a Restricted Business).

(b) Non-Solicitation . The Participant agrees that during the Restricted Period, the Participant will not, directly or indirectly, for himself or on behalf of or in conjunction with any other person, (i) hire or attempt to hire any person that is an employee of the Company or any of its Subsidiaries within six (6) months prior to the date of Termination; provided, however, this Section 9(b) (including clause (ii) below) shall not be breached by a solicitation to the general public or through general advertising, and the Participant may solicit for employment any person who at the date of Termination had not been an employee of the Company or its Subsidiaries at any time within six (6) months preceding such date or whose employment with the Company or its Subsidiaries had terminated more than six (6) months prior to the Participant’s solicitation of such person or (ii) solicit, advise or encourage any person, firm, government agency or corporation to withdraw, curtail or cancel its business with the Company or its Subsidiaries.

(c) Non-Disparagement . During the Participant’s employment with the Company and its Subsidiaries and thereafter, the Participant agrees that he will not, at any time,

 

5


make, directly or indirectly, any oral or written statements that are disparaging of the Company or its Subsidiaries, any of their products or services, or any of their present or former officers, directors, stockholders or employees (or any of their respective Affiliates), and the Company shall instruct the Board and its executives not to disparage the Participant orally or in writing at any time; provided that either party may confer in confidence with its legal representatives and make truthful statements as required by law.

(d) Confidential Information . The Participant acknowledges and agrees that the customers, business connections, customer lists, procedures, operations, techniques and other aspects of and information about the business of the Company and its Subsidiaries (the “ Confidential Information ”) are established at great expense and protected as confidential information and provide the Company and its Subsidiaries with a substantial competitive advantage in conducting its business. The Participant further acknowledges and agrees that by virtue of his employment with the Company and its Subsidiaries, he has had access to and will have access to, and has been entrusted with and will be entrusted with Confidential Information, and that the Company and its Subsidiaries would suffer great loss and injury if the Participant would disclose this information or use it in a manner not specifically authorized by the Company. Therefore, the Participant agrees that during his employment with the Company and its Subsidiaries and at all times thereafter, he will not, directly or indirectly, either individually or as an employee, agent, partner, shareholder, owner trustee, beneficiary, co-venturer distributor, consultant or in any other capacity, use or disclose or cause to be used or disclosed any Confidential Information, unless and to the extent (i) that any such information becomes generally known to and available for use by the public other than as a result of the Participant’s acts or omissions, (ii) authorized in writing by the Board or compelled by legal process (provided that the Participant provides the Company with advance notice adequate to afford the Company reasonable opportunity to limit or prevent such disclosure), or (iii) use or disclosure is to an employee of the Company or a person to whom disclosure is reasonably necessary or appropriate in connection with the performance by the Participant of his duties as an employee or director of the Company and its Subsidiaries. The Participant shall deliver to the Company upon any Termination, or at any other time the Company may request, all memoranda, notes, plans, records, reports, computer tapes, printouts and software and other documents and data (and copies thereof) relating to the Confidential Information or Work Product (as defined below) which he may then possess or have under his control, provided that the Participant shall be entitled to retain his telephone, address and other contact directories subject to compliance with Sections 9(a) through 9(c) . The Participant acknowledges and agrees that all inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not patentable) that relate to the actual or anticipated business of the Company and its Subsidiaries and that are conceived, developed or made by the Participant while employed by the Company and its Subsidiaries and during work hours or by the use of the facilities or Confidential Information of the Company and its Subsidiaries (“ Work Product ”) belong to the Company and its Subsidiaries.

(e) Reasonableness of Covenants . In signing this Agreement, the Participant agrees and acknowledges that the potential harm to the Company and its Subsidiaries of the non-enforcement of this Section 9 outweighs any harm to the Participant of its enforcement by injunction or otherwise. The Participant hereby acknowledges that he or she has carefully read this Agreement with its legal counsel and has given careful consideration to the restraints

 

6


imposed upon the Participant, and understands and acknowledges the significance and consequences of this Agreement and is in full accord as to their necessity for the reasonable and proper protection of the Confidential Information. The Participant expressly acknowledges and agrees that each and every restriction imposed by this Agreement is reasonable with respect to subject matter, time period, geographical area and scope and such restrictions are necessary to protect the Company’s, its Subsidiaries’ and its Affiliates’ interest in, and value of, the Company, its Subsidiaries and its Affiliates (including, without limitation, the goodwill inherent therein). The Participant hereby represents and warrants to the Company that upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding obligation of the Participant, enforceable in accordance with its terms. The Participant understands and agrees that the restrictions and covenants contained in this Section 9 are in addition to, and not in lieu of, any non-competition, non-solicitation or other similar obligations contained in any other agreements between the Participant and the Company, its Subsidiaries or its Affiliates.

(f) Reformation . If it is determined by a court of competent jurisdiction in any state that any restriction in this Section 9 is excessive in duration or scope or is unreasonable or unenforceable under applicable law, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the maximum extent permitted by the laws of that state.

(g) Tolling . In the event of any violation of the provisions of this Section 9 , the Participant acknowledges and agrees that the post-termination restrictions contained in this Section 9 shall be extended by a period of time equal to the period of such violation, it being the intention of the parties hereto that the running of the applicable post-termination restriction period shall be tolled during any period of such violation.

(h) Survival . The obligations contained in this Section 9 hereof shall survive the termination of the Participant’s employment or other service with the Company and its Subsidiaries and the date on which the Participant no longer holds, directly or indirectly, any equity securities in the Company, and shall be fully enforceable thereafter in accordance with the terms hereof.

(i) Remedies . The Participant acknowledges and agrees that the Company’s remedies at law for a breach or threatened breach of any of the provisions of this Section 9 would be inadequate and, in recognition of this fact, the Participant agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond or other security, shall be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available, without the necessity of showing actual monetary damages.

10. Securities Representations . Upon the exercise of the Option prior to the registration of the Common Stock to be issued hereunder pursuant to the Securities Act or other applicable securities laws, the Participant shall be deemed to acknowledge and make the following representations and warranties and as otherwise may be requested by the Company for compliance with applicable laws, and any issuances of Common Stock by the Company hereunder shall be made in reliance upon the express representations and warranties of the Participant:

(a) The Participant is acquiring and will hold the Common Stock to be issued hereunder for investment for the Participant’s account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act or other applicable securities laws.

 

7


(b) The Participant has been advised that the shares of Common Stock to be issued hereunder have not been registered under the Securities Act or other applicable securities laws, on the ground that no distribution or public offering of such Common Stock is to be effected (it being understood, however, that such Common Stock is being issued and sold in reliance on an exemption from registration under the Securities Act), and that such Common Stock must be held indefinitely, unless it is subsequently registered under the applicable securities laws or the Participant obtains an opinion of counsel (in the form and substance satisfactory to the Company and its counsel) that registration is not required. In connection with the foregoing, the Company is relying in part on the Participant’s representations set forth in this Section 9 . The Participant further acknowledges and understands that the Company is under no obligation hereunder to register the Common Stock to be issued hereunder.

(c) The Participant is aware of the adoption of Rule 144 by the United States Securities and Exchange Commission under the Securities Act, which permits limited public resales of securities acquired in a non-public offering, subject to the satisfaction of certain conditions. The Participant acknowledges that the Participant is familiar with the conditions for resale set forth in Rule 144, and acknowledges and understands that the conditions for resale set forth in Rule 144 may not have been satisfied and that the Company has no plans to satisfy these conditions in the foreseeable future.

(d) The Participant will not Transfer the Common Stock deliverable upon exercise of the Option in violation of the Plan, this Agreement, the Securities Act (or the rules and regulations promulgated thereunder) or under any other applicable securities laws. The Participant agrees that the Participant will not dispose of the Common Stock to be issued hereunder unless and until the Participant has complied with all requirements of the Plan and this Agreement applicable to the disposition of such Common Stock.

(e) The Participant has been furnished with, and has had access to, such information as the Participant considers necessary or appropriate for deciding whether to invest in the Common Stock to be issued hereunder, and the Participant has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the issuance of such Common Stock.

(f) The Participant is aware that an investment in the Company is a speculative investment that has limited liquidity and is subject to the risk of complete loss. The Participant is able, without impairing the Participant’s financial condition, to hold the Common Stock to be issued hereunder for an indefinite period and to suffer a complete loss of the Participant’s investment in such Common Stock.

 

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11. Governing Law . All questions concerning the construction, validity and interpretation of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the choice of law principles thereof.

12. Withholding of Tax . The Company shall have the power and the right to deduct or withhold, or require the Participant to remit to the Company, an amount sufficient to satisfy any federal, state, local and foreign taxes of any kind (including, but not limited to, the Participant’s FICA and SDI obligations) which the Company, in its sole discretion, deems necessary to be withheld or remitted to comply with the Code and/or any other applicable law, rule or regulation with respect to the Option and, if the Participant fails to do so, the Company may otherwise refuse to issue or transfer any Common Stock otherwise required to be issued pursuant to this Agreement. Any statutorily required minimum withholding obligation with regard to the Participant may be satisfied by reducing the amount of cash or Common Stock otherwise deliverable upon exercise of the Option.

13. Entire Agreement; Amendment . This Agreement, together with the Employment Agreement, the Plan, the Stockholders Agreement and the Registration Rights Agreement, contain the entire agreement between the parties hereto with respect to the subject matter contained herein, and supersedes all prior agreements or prior understandings, whether written or oral, between the parties relating to such subject matter. The Committee shall have the right, in its sole discretion, to modify or amend this Agreement from time to time in accordance with and as provided in the Plan; provided , however , that, unless otherwise required by law, no amendment or modification shall impair the rights of the Participant without the consent of the Participant. This Agreement may also be modified or amended by a writing signed by both the Company and the Participant. The Company shall give written notice to the Participant of any such modification or amendment of this Agreement as soon as practicable after the adoption thereof.

14. Notices . Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, or received by certified mail, return receipt requested, or sent by reputable overnight courier service (charges prepaid) to the Company at the address set forth below to the Participant at such address as indicated by the Company’s records or at such address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party. Notices will be deemed to have been given hereunder (i) when delivered personally to the recipient, (ii) one (1) business day after being sent to the recipient by reputable overnight courier service (charges prepaid), (iii) upon machine-generated acknowledgment of receipt after transmittal by facsimile if so acknowledged to have been received before 5:00 p.m. on a business day at the location of receipt and otherwise on the next following business day, provided that such notice, demand or other communication is also deposited within 24 hours thereafter with a reputable overnight courier service (charges prepaid) for delivery to the same Person, (iv) upon transmittal by e-mail if transmitted before 5:00 p.m. (on a business day) in the time zone of the address (which address is determined in the preceding sentence) of the recipient and otherwise on the next following business day, or (iv) five (5) days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. The Company’s address is:

J.A. Cosmetics Holdings, Inc.

570 10 th Street, 3 rd Floor

Oakland, California 94607

Attention: General Counsel

Fax: ###

Email: ###

 

9


with copies (which shall not constitute notice) to:

Kirkland & Ellis LLP

333 South Hope Street, 29th Floor

Los Angeles, California 90071

Attention:        ###

Facsimile:       ###

Email:             ###

15. No Right to Employment or Service . Any questions as to whether and when there has been Termination shall be determined in the sole discretion of the Committee. Nothing in this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries or its Affiliates to terminate the Participant’s employment or service at any time, for any reason and with or without Cause.

16. Transfer of Personal Data .   The Participant authorizes, agrees and unambiguously consents to the transmission by the Company (or any Subsidiary) of any personal data information related to the Option awarded under this Agreement solely for legitimate business purposes (including, without limitation, the administration of the Plan). This authorization and consent is freely given by the Participant. The Company shall take all reasonable steps necessary or appropriate to protect the confidentiality of such personal data information and comply with all laws applicable thereto.

17. Compliance with Laws . The issuance of the Option (and the Option Shares upon exercise of the Option) pursuant to this Agreement shall be subject to, and shall comply with, any applicable requirements of any foreign and U.S. federal and state securities laws, rules and regulations and any other law or regulation applicable thereto. The Company shall not be obligated to issue the Option or any of the Option Shares pursuant to this Agreement if any such issuance would violate any such requirements. As a condition to the issuance of the Option Shares upon exercise of the Option, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate to evidence compliance with any applicable law or regulation.

18. Section 409A . Notwithstanding anything herein or in the Plan to the contrary, the Option is intended to be exempt from the applicable requirements of Section 409A of the Code and shall be limited, construed and interpreted in accordance with such intent.

19. Binding Agreement; Assignment . This Agreement, including as provided in Section 6 hereof, shall inure to the benefit of, be binding upon, and be enforceable by the

 

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Company and its successors and assigns. The Participant shall not assign (except as otherwise expressly provided herein) any part of this Agreement without the prior express written consent of the Company.

20. Headings . The titles and headings of the various sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of this Agreement.

21. Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument.

22. Further Assurances . Each party hereto shall do and perform (or shall cause to be done and performed) all such further acts and shall execute and deliver all such other agreements, certificates, instruments and documents as either party hereto reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the Plan and the consummation of the transactions contemplated thereunder.

23. Severability . The invalidity or unenforceability of any provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of any provision of this Agreement in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law. Upon such determination that any provision hereunder, or the application of any such provision, is invalid, illegal, void or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the greatest extent possible. To the extent that the parties hereto cannot agree on a modification to this Agreement pursuant to the preceding sentence, it is the intention of the parties that the invalid, illegal, void or unenforceable provision of this Agreement may be modified or amended by the court to render it enforceable to the maximum extent permitted under applicable law.

24. Acquired Rights . The Participant acknowledges and agrees that: (a) the Company may terminate or amend the Plan at any time, subject to the provisions of the Plan; (b) the award of the Option made under this Agreement is completely independent of any other award or grant and is made at the sole discretion of the Company; (c) no past grants or awards (including, without limitation, the Option awarded hereunder) give the Participant any right to any grants or awards in the future whatsoever; and (d) any benefits granted under this Agreement are not part of the Participant’s ordinary salary, and shall not be considered as part of such salary in the event of severance, redundancy or resignation.

*        *        *         *        *        *

 

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IN WITNESS WHEREOF , the parties hereto have executed this Agreement as of the date first written above.

 

J.A. COSMETICS HOLDINGS, INC.
By:  

 

Name:  

 

Title:  

 

PARTICIPANT

 

[                    ]

Signature Page to Non-Qualified Stock Option Award Agreement


EXHIBIT A

VESTING AND EXERCISE

1. Time Vesting .

(a) General . [                    ] of the Option Shares subject to the Option shall vest and become exercisable as follows, provided that the Participant has not incurred a Termination prior to the applicable “Vesting Date” as defined below (the “ Time-Vesting Tranche ”):

 

Vesting Date 1

   Vested Percentage of Time-Vesting Tranche  

[            ], 2016

     20

[            ], 2017

     40

[            ], 2018

     60

[            ], 2019

     80

[            ], 2020

     100

There shall be no proportionate or partial vesting in the periods prior to each vesting date set forth above (each, a “ Vesting Date ”) and all vesting shall occur only on the appropriate Vesting Date, subject to the Participant’s continued service with the Company or any of its Subsidiaries or Affiliates on each applicable Vesting Date, subject to Section 1(b) of this Exhibit A . Upon expiration of the Option, the Time-Vesting Tranche of the Option shall be cancelled and no longer exercisable.

(b) Accelerated Vesting . The unvested portion of the Time-Vesting Tranche of the Option shall become fully and immediately vested and exercisable upon a Sale of the Company (as such term is defined in the Stockholders Agreement), so long as the Participant has not incurred a Termination prior thereto. If Participant’s employment is terminated due to Participant’s death or Disability, by the Company without Cause or by the Participant for Good Reason, then the portion of the Time-Vesting Tranche which would have vested within twelve (12) months following the Termination date but for such Termination shall become fully and immediately vested and exercisable.

2. Performance Vesting .

(a) [                    ] of the Option Shares subject to the Option shall vest and become exercisable subject to meeting performance thresholds as follows; provided that the Participant has not incurred a Termination prior to meeting the applicable “Performance Threshold” as defined below (the “ Performance-Vesting Tranche ”):

 

Return Multiple (defined below)

  

1.0x

  

3.0x

  

4.3x

Aggregate Vested Portion of Performance-Vesting Tranche    0    [                    ]

Option Shares

   [                    ]

Option Shares

 

1   Subsequent anniversaries of the Measurement Date.

 

A-1


There shall be no proportionate or partial vesting prior to meeting any Performance Threshold set forth above, and all vesting shall occur only upon meeting the appropriate Performance Threshold, subject to the Participant’s continued service with the Company or any of its Subsidiaries or Affiliates upon meeting each applicable Performance Threshold, subject to Section 2(c) of this Exhibit A . Upon expiration of the Option, the Performance-Vesting Tranche of the Option shall be cancelled and no longer exercisable.

(b) Sale of the Company . The unvested portion of the Performance-Vesting Tranche of the Option shall be cancelled automatically, with no further action required by any Person and no consideration paid therefor, upon the occurrence of a Sale of the Company.

(c) Continued Vesting . In the event of a Termination of the Participant due to the Participant’s death or Disability, the Participant shall remain eligible to vest in the Performance-Vesting Tranche which would have vested within six (6) months following the date of Termination but for such Termination.

3. Miscellaneous Provisions Applicable to Vesting .

(a) Escrow Holdbacks following a Sale of the Company . In connection with a Sale of the Company, if any portion of the transaction consideration to be received by equityholders of the Company is subject to any transaction escrow arrangement or indemnity holdback, a pro rata portion of the proceeds to be received by the Participant in respect of the Option or the shares of Common Stock to be issued upon exercise of the Option may be made subject to such transaction escrow arrangement or indemnity holdback on the same basis as the transaction consideration to be received by such equityholders is made subject to such transaction escrow arrangement or indemnity holdback (taking into account any applicable requirements under Section 409A of the Code).

(b) Termination of Unvested Option . Any portion of the Option that does not become vested and exercisable in accordance with the provisions of this Exhibit A shall be automatically forfeited and cancelled for no value without any consideration being paid therefor and otherwise without any further action of the Company whatsoever.

(c) Committee Authority . The Committee shall in good faith make all determinations necessary or appropriate to determine whether the Performance-Vesting Tranche of the Option has become vested. All computations shall be made on a pro forma basis taking into account the vesting and payment of any entitlements under outstanding incentive equity awards of the Company, such that, if the applicable performance goals are achieved, but, after the vesting and payment of any entitlements under outstanding incentive equity awards of the Company resulting from such achievement, such performance goals would no longer be achieved, then such vesting shall not take effect. The Committee’s determinations shall be final, binding and conclusive upon all parties, absent bad faith or manifest error.

 

A-2


(d) Committee Discretion to Accelerate Vesting . Notwithstanding the foregoing, the Committee may, in its sole discretion, provide for accelerated vesting of any portion of the Option at any time and for any reason.

(e) Definitions .

(i) “ Measurement Date ” means [                    ]. 2

(ii) “ Original Equityholders ” shall mean the holders of equity interests of the Company as of January 31, 2014, together with their Permitted Transferees (as defined in the Stockholders Agreement).

(iii) “ Performance Threshold ” means the receipt by the Original Equityholders of a Return Multiple equal to 3.0 or 4.3, as the case may be, at any time following the Measurement Date; it being understood and agreed that if a particular Performance Threshold is met at any time and the Return Multiple subsequently decreases, there shall be no additional vesting in respect of the Performance-Vesting Tranche as a result of such Performance Threshold subsequently being met again.

(iv) “ Return Multiple ” shall mean, as of the date of measurement, the quotient obtained by dividing (x) the aggregate amount of distributions, dividends and sale proceeds received, following the Measurement Date, by the Original Equityholders in respect of the equity securities of the Company held by them (whether in connection with a Sale of the Company or otherwise, and whether in cash or in publicly traded securities issued as consideration in a Sale of the Company or otherwise), by (y) the aggregate amount of capital contributions made by the Original Equityholders to the Company (including those capital contributions made on or prior to the Measurement Date). For purposes of calculating the amount described in clause (x) of the preceding sentence, (1) any amounts held in indemnification escrow or holdback arrangements in a Sale of the Company shall be taken into account as if paid at the closing thereof, but not any other contingent amounts that may be payable subsequent to such closing, and (2) commencing on the date that is thirty (30) trading days after a Public Offering, the Original Equityholders shall be deemed to have received the average of the closing prices of a share over any period of ninety (90) consecutive trading days with respect to all of the shares of Common Stock (or any successor Company securities) then held by the Original Equityholders (plus any dividends, distributions and sale proceeds in accordance with the previous sentence). For the avoidance of doubt, (a) the Return Multiple shall be calculated after giving effect to any vesting of stock options or bonuses such that the amount received by the Original Equityholders for the purpose of calculating the Return Multiple is net of the effects of such arrangements, and (b) only cash or marketable securities shall be taken into account in determining the amounts described in clause (x) of the first sentence of this paragraph (iv); provided, however, that if dividends, distributions or sale proceeds are not in the form of cash or marketable securities, the Committee shall take such returns into account when making its determination of whether the Performance-Vesting Tranche of the Option has become vested as it deems appropriate to achieve an equitable result.

 

2   For new hires, this will be the date of employment.

 

A-3


[Form Adopted on December 17, 2015 for Other Employees]

NON-QUALIFIED STOCK OPTION AWARD AGREEMENT

PURSUANT TO THE

J.A. COSMETICS HOLDINGS, INC. 2014 EQUITY INCENTIVE PLAN

*  *  *  *  *

Participant: [                    ]

Grant Date: [                    ], 20[    ]

Per Share Exercise Price: $[        ]

Number of Option Shares: [                    ]

*  *  *  *  *

THIS NON-QUALIFIED STOCK OPTION AWARD AGREEMENT (this “ Agreement ”), dated as of the Grant Date specified above, is entered into by and between J.A. Cosmetics Holdings, Inc., a Delaware corporation (the “ Company ”), and the Participant specified above, pursuant to the J.A. Cosmetics Holdings, Inc. 2014 Equity Incentive Plan, as in effect and as amended from time to time (the “ Plan ”), which is administered by the Committee; and

WHEREAS, it has been determined under the Plan that it would be in the best interests of the Company to grant the Stock Option provided for herein to the Participant.

NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth and for other good and valuable consideration, the parties hereto hereby mutually covenant and agree as follows:

1. Incorporation By Reference; Plan Document Receipt . This Agreement is subject in all respects to the terms and provisions of the Plan (including, without limitation, any amendments thereto adopted at any time and from time to time), all of which terms and provisions are made a part of and incorporated in this Agreement as if they were each expressly set forth herein. Any capitalized term not defined in this Agreement shall have the same meaning as is ascribed thereto in the Plan. The Participant hereby acknowledges receipt of a true copy of the Plan and that the Participant has read the Plan carefully and fully understands its content. In the event of any conflict between the terms of this Agreement and the terms of the Plan, the terms of the Plan shall control. No part of the Stock Option granted hereby is intended to qualify as an “incentive stock option” under Section 422 of the Code.

2. Grant of Option . The Company hereby grants to the Participant, as of the Grant Date specified above, a Stock Option (the “ Option ”) to acquire from the Company at the Per Share Exercise Price specified above, the aggregate number of shares of Common Stock specified above (the “ Option Shares ”). Except as otherwise provided by the Plan, the Participant agrees and understands that nothing contained in this Agreement provides, or is intended to provide, the Participant with any protection against potential future dilution of the Participant’s interest in the Company for any reason. The Participant shall have no rights as a stockholder


with respect to any shares of Common Stock covered by the Option unless and until the Participant has become the holder of record of such shares, and no adjustments shall be made for dividends in cash or other property, distributions or other rights in respect of any such shares, except as otherwise specifically provided for in the Plan or this Agreement.

3. Vesting and Exercise; Option Term .

(a) Vesting and Exercise . The Option shall become vested and exercisable in accordance with the provisions of Exhibit A hereto.

(b) Expiration . Unless earlier terminated in accordance with the terms and provisions of the Plan and/or this Agreement, all portions of the Option (whether vested or not vested) shall expire and shall no longer be exercisable after the expiration of ten (10) years from the Grant Date.

4. Termination . Subject to the terms of this Agreement, which shall supersede any provisions of the Plan to the contrary, the Option, to the extent vested at the time of the Participant’s Termination, shall remain exercisable as follows:

(a) General . Except as otherwise provided in Sections 4(b) and 4(c) hereof, in the event of the Participant’s Termination for any reason, the vested portion of the Option shall remain exercisable until the earlier of (i) ninety (90) days from the date of such Termination, and (ii) the expiration of the stated term of the Option pursuant to Section 3(b) hereof.

(b) Termination due to Death or Disability . In the event of the Participant’s Termination by reason of death or Disability, the vested portion of the Option shall remain exercisable until the earlier of (i) one (1) year from the date of such Termination, and (ii) the expiration of the stated term of the Option pursuant to Section 3(b) hereof.

(c) Termination for Cause . In the event of the Participant’s Termination for Cause or in the event of the Participant’s voluntary Termination after the occurrence of an event that would be grounds for a Termination for Cause, the Participant’s entire Option (whether or not vested) shall terminate and expire upon such Termination.

(d) Treatment of Unvested Options upon Termination . Subject to Section 2(c) of Exhibit A , any portion of the Option that is not vested as of the date of the Participant’s Termination for any reason shall terminate and expire as of the date of such Termination.

5. Method of Exercise and Payment . Subject to Section 12 hereof, to the extent that the Option has become vested and exercisable with respect to a number of shares of Common Stock as provided herein, the Option may thereafter be exercised by the Participant, in whole or in part, at any time or from time to time prior to the expiration of the Option as provided herein and in accordance with Sections 6.4(c) and 6.4(d) of the Plan, including, without limitation, by the filing of any written form of exercise notice as may be required by the Committee and payment in full of the Per Share Exercise Price specified above multiplied by the number of shares of Common Stock underlying the portion of the Option exercised. If the shares

 

2


underlying the portion of the Option exercised are not freely tradable by the Participant on a public securities exchange at the time of exercise, the Participant shall be entitled at his election to require the Company to withhold a number of Option Shares (determined based on the Fair Market Value of the Option Shares on the payment date as determined by the Committee) that would otherwise be issued upon exercise to satisfy the aggregate Per Share Exercise Price and applicable withholding taxes in respect of such exercise (based on minimum applicable statutory withholding rates, as determined on the date that the amount of tax to be withheld is determined).

6. Non-Transferability . The Option, and any rights and interests with respect thereto, including this Agreement, issued under this Agreement and the Plan shall not be sold, exchanged, transferred, assigned or otherwise disposed of in any way by the Participant (or any beneficiary of the Participant), other than by testamentary disposition by the Participant or the laws of descent and distribution. Notwithstanding the foregoing, the Committee may, in its sole discretion, permit the Option to be Transferred to a Family Member for no value, provided that such Transfer shall only be valid upon execution of a written instrument in form and substance acceptable to the Committee in its sole discretion evidencing such Transfer and the transferee’s acceptance thereof signed by the Participant and the transferee, and provided , further , that the Option may not be subsequently Transferred other than by will or by the laws of descent and distribution or to another Family Member (as permitted by the Committee in its sole discretion) in accordance with the terms of the Plan and this Agreement, and shall remain subject to the terms of the Plan and this Agreement.   Any attempt to sell, exchange, transfer, assign, pledge, encumber or otherwise dispose of or hypothecate in any way the Option, or the levy of any execution, attachment or similar legal process upon the Option, contrary to the terms and provisions of this Agreement and/or the Plan shall be null and void and without legal force or effect.

7. Stockholders Agreement and Other Requirements . As a condition to the issuance of shares of Common Stock upon exercise of the Option, to the extent required by the Committee, the Participant shall execute and deliver a joinder to the Stockholders Agreement (the “ Stockholders Agreement ”) and the Registration Rights Agreement (the “ Registration Rights Agreement ”), each entered into among the Company and its stockholders as of January 31, 2014 (in each case with such amendments or modifications approved in accordance with the terms of such agreement), and, to the extent required by the Board or Committee in their sole discretion, any transfer restriction policy applicable to employees of the Company that is adopted in the context of insider trading or similar laws. Such Stockholders Agreement, Registration Rights Agreement and other documentation shall apply to the shares of Common Stock acquired under the Plan and covered by such Stockholders Agreement, Registration Rights Agreement and other documentation. The Company may require, as a condition of exercise, the Participant to become a party to any other existing agreement related to the issuance or holding of shares of Common Stock; provided, however, that unless otherwise required by applicable law, no such agreement shall impair the rights of the Participant without the consent of the Participant.

8. Company Call Rights . Subject to the provisions of any document to which the Participant is required to become a party pursuant to Section 7 hereof, the Option shall be subject to the Company call rights set forth in Article XI of the Plan. To ensure that the Common Stock issuable upon exercise of the Option is not Transferred in contravention of the terms of the Plan and this Agreement, and to ensure compliance with other provisions of the Plan and this Agreement, the Company may deposit the certificates (if any) evidencing the Common Stock to be issued upon the exercise of the Option with an escrow agent designated by the Company.

 

3


9. Restrictive Covenants .

(a) Non-Compete . The Participant agrees that during the Participant’s employment with the Company and its Subsidiaries and for one (1) year following the Termination thereof (the “ Restricted Period ”), the Participant shall not, anywhere in the areas where the Company or any of its Subsidiaries conducts business during such employment (the “ Restricted Territory ”), directly or indirectly, own, manage, operate, join, control or participate in the ownership, management, operation or control of, or be an officer or an employee of any business or organization that, directly or indirectly, develops, processes, packages, markets, promotes or sells color cosmetics or related services in the Restricted Territories (each, a “ Restricted Business ”). The foregoing shall not restrict the Participant from (a) owning up to 5% of any class of securities of any person engaged in a Restricted Business if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Exchange Act, as long as such securities are held solely as a passive investment and not with a view to influencing, controlling or directing the affairs of such person), or (b) following the Participant’s termination of employment, being an officer, director, employee, shareholder, consultant, contractor, partner, joint venturer, agent, equity owner or acting in another capacity of or for (i) a business that principally sells retail goods (such as Wal Mart) for which sales of products manufactured by a Restricted Business generate less than 10 percent of its revenue or (ii) a business entity that has multiple lines of business, some of which are not a Restricted Business, so long as the Participant’s services for such entity are restricted so that he will provide no services or other assistance in support of, and will not otherwise be involved with, any Restricted Business conducted by such entity (except that the Participant shall be permitted to serve in a management capacity with responsibility for multiple product lines so long as such responsibility does not cover product lines for which more than 10 percent of the collective revenues are generated by a Restricted Business).

(b) Non-Solicitation . The Participant agrees that during the Restricted Period, the Participant will not, directly or indirectly, for himself or on behalf of or in conjunction with any other person, (i) hire or attempt to hire any person that is an employee of the Company or any of its Subsidiaries within six (6) months prior to the date of Termination; provided, however, this Section 9(b) (including clause (ii) below) shall not be breached by a solicitation to the general public or through general advertising, and the Participant may solicit for employment any person who at the date of Termination had not been an employee of the Company or its Subsidiaries at any time within six (6) months preceding such date or whose employment with the Company or its Subsidiaries had terminated more than six (6) months prior to the Participant’s solicitation of such person or (ii) solicit, advise or encourage any person, firm, government agency or corporation to withdraw, curtail or cancel its business with the Company or its Subsidiaries.

(c) Non-Disparagement . During the Participant’s employment with the Company and its Subsidiaries and thereafter, the Participant agrees that he will not, at any time, make, directly or indirectly, any oral or written statements that are disparaging of the Company or its Subsidiaries, any of their products or services, or any of their present or former officers,

 

4


directors, stockholders or employees (or any of their respective Affiliates), and the Company shall instruct the Board and its executives not to disparage the Participant orally or in writing at any time; provided that either party may confer in confidence with its legal representatives and make truthful statements as required by law.

(d) Confidential Information . The Participant acknowledges and agrees that the customers, business connections, customer lists, procedures, operations, techniques and other aspects of and information about the business of the Company and its Subsidiaries (the “ Confidential Information ”) are established at great expense and protected as confidential information and provide the Company and its Subsidiaries with a substantial competitive advantage in conducting its business. The Participant further acknowledges and agrees that by virtue of his employment with the Company and its Subsidiaries, he has had access to and will have access to, and has been entrusted with and will be entrusted with Confidential Information, and that the Company and its Subsidiaries would suffer great loss and injury if the Participant would disclose this information or use it in a manner not specifically authorized by the Company. Therefore, the Participant agrees that during his employment with the Company and its Subsidiaries and at all times thereafter, he will not, directly or indirectly, either individually or as an employee, agent, partner, shareholder, owner trustee, beneficiary, co-venturer distributor, consultant or in any other capacity, use or disclose or cause to be used or disclosed any Confidential Information, unless and to the extent (i) that any such information becomes generally known to and available for use by the public other than as a result of the Participant’s acts or omissions, (ii) authorized in writing by the Board or compelled by legal process (provided that the Participant provides the Company with advance notice adequate to afford the Company reasonable opportunity to limit or prevent such disclosure), or (iii) use or disclosure is to an employee of the Company or a person to whom disclosure is reasonably necessary or appropriate in connection with the performance by the Participant of his duties as an employee or director of the Company and its Subsidiaries. The Participant shall deliver to the Company upon any Termination, or at any other time the Company may request, all memoranda, notes, plans, records, reports, computer tapes, printouts and software and other documents and data (and copies thereof) relating to the Confidential Information or Work Product (as defined below) which he may then possess or have under his control, provided that the Participant shall be entitled to retain his telephone, address and other contact directories subject to compliance with Sections 9(a) through 9(c) . The Participant acknowledges and agrees that all inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not patentable) that relate to the actual or anticipated business of the Company and its Subsidiaries and that are conceived, developed or made by the Participant while employed by the Company and its Subsidiaries and during work hours or by the use of the facilities or Confidential Information of the Company and its Subsidiaries (“ Work Product ”) belong to the Company and its Subsidiaries.

(e) Reasonableness of Covenants . In signing this Agreement, the Participant agrees and acknowledges that the potential harm to the Company and its Subsidiaries of the non-enforcement of this Section 9 outweighs any harm to the Participant of its enforcement by injunction or otherwise. The Participant hereby acknowledges that he or she has carefully read this Agreement with its legal counsel and has given careful consideration to the restraints imposed upon the Participant, and understands and acknowledges the significance and consequences of this Agreement and is in full accord as to their necessity for the reasonable and

 

5


proper protection of the Confidential Information. The Participant expressly acknowledges and agrees that each and every restriction imposed by this Agreement is reasonable with respect to subject matter, time period, geographical area and scope and such restrictions are necessary to protect the Company’s, its Subsidiaries’ and its Affiliates’ interest in, and value of, the Company, its Subsidiaries and its Affiliates (including, without limitation, the goodwill inherent therein). The Participant hereby represents and warrants to the Company that upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding obligation of the Participant, enforceable in accordance with its terms. The Participant understands and agrees that the restrictions and covenants contained in this Section 9 are in addition to, and not in lieu of, any non-competition, non-solicitation or other similar obligations contained in any other agreements between the Participant and the Company, its Subsidiaries or its Affiliates.

(f) Reformation . If it is determined by a court of competent jurisdiction in any state that any restriction in this Section 9 is excessive in duration or scope or is unreasonable or unenforceable under applicable law, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the maximum extent permitted by the laws of that state.

(g) Tolling . In the event of any violation of the provisions of this Section 9 , the Participant acknowledges and agrees that the post-termination restrictions contained in this Section 9 shall be extended by a period of time equal to the period of such violation, it being the intention of the parties hereto that the running of the applicable post-termination restriction period shall be tolled during any period of such violation.

(h) Survival . The obligations contained in this Section 9 hereof shall survive the termination of the Participant’s employment or other service with the Company and its Subsidiaries and the date on which the Participant no longer holds, directly or indirectly, any equity securities in the Company, and shall be fully enforceable thereafter in accordance with the terms hereof.

(i) Remedies . The Participant acknowledges and agrees that the Company’s remedies at law for a breach or threatened breach of any of the provisions of this Section 9 would be inadequate and, in recognition of this fact, the Participant agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond or other security, shall be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available, without the necessity of showing actual monetary damages.

10. Securities Representations . Upon the exercise of the Option prior to the registration of the Common Stock to be issued hereunder pursuant to the Securities Act or other applicable securities laws, the Participant shall be deemed to acknowledge and make the following representations and warranties and as otherwise may be requested by the Company for compliance with applicable laws, and any issuances of Common Stock by the Company hereunder shall be made in reliance upon the express representations and warranties of the Participant:

(a) The Participant is acquiring and will hold the Common Stock to be issued hereunder for investment for the Participant’s account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act or other applicable securities laws.

 

6


(b) The Participant has been advised that the shares of Common Stock to be issued hereunder have not been registered under the Securities Act or other applicable securities laws, on the ground that no distribution or public offering of such Common Stock is to be effected (it being understood, however, that such Common Stock is being issued and sold in reliance on an exemption from registration under the Securities Act), and that such Common Stock must be held indefinitely, unless it is subsequently registered under the applicable securities laws or the Participant obtains an opinion of counsel (in the form and substance satisfactory to the Company and its counsel) that registration is not required. In connection with the foregoing, the Company is relying in part on the Participant’s representations set forth in this Section 9 . The Participant further acknowledges and understands that the Company is under no obligation hereunder to register the Common Stock to be issued hereunder.

(c) The Participant is aware of the adoption of Rule 144 by the United States Securities and Exchange Commission under the Securities Act, which permits limited public resales of securities acquired in a non-public offering, subject to the satisfaction of certain conditions. The Participant acknowledges that the Participant is familiar with the conditions for resale set forth in Rule 144, and acknowledges and understands that the conditions for resale set forth in Rule 144 may not have been satisfied and that the Company has no plans to satisfy these conditions in the foreseeable future.

(d) The Participant will not Transfer the Common Stock deliverable upon exercise of the Option in violation of the Plan, this Agreement, the Securities Act (or the rules and regulations promulgated thereunder) or under any other applicable securities laws. The Participant agrees that the Participant will not dispose of the Common Stock to be issued hereunder unless and until the Participant has complied with all requirements of the Plan and this Agreement applicable to the disposition of such Common Stock.

(e) The Participant has been furnished with, and has had access to, such information as the Participant considers necessary or appropriate for deciding whether to invest in the Common Stock to be issued hereunder, and the Participant has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the issuance of such Common Stock.

(f) The Participant is aware that an investment in the Company is a speculative investment that has limited liquidity and is subject to the risk of complete loss. The Participant is able, without impairing the Participant’s financial condition, to hold the Common Stock to be issued hereunder for an indefinite period and to suffer a complete loss of the Participant’s investment in such Common Stock.

11. Governing Law . All questions concerning the construction, validity and interpretation of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the choice of law principles thereof.

 

7


12. Withholding of Tax . The Company shall have the power and the right to deduct or withhold, or require the Participant to remit to the Company, an amount sufficient to satisfy any federal, state, local and foreign taxes of any kind (including, but not limited to, the Participant’s FICA and SDI obligations) which the Company, in its sole discretion, deems necessary to be withheld or remitted to comply with the Code and/or any other applicable law, rule or regulation with respect to the Option and, if the Participant fails to do so, the Company may otherwise refuse to issue or transfer any Common Stock otherwise required to be issued pursuant to this Agreement. Any statutorily required minimum withholding obligation with regard to the Participant may be satisfied by reducing the amount of cash or Common Stock otherwise deliverable upon exercise of the Option.

13. Entire Agreement; Amendment . This Agreement, together with the Plan, the Stockholders Agreement and the Registration Rights Agreement, contain the entire agreement between the parties hereto with respect to the subject matter contained herein, and supersedes all prior agreements or prior understandings, whether written or oral, between the parties relating to such subject matter. The Committee shall have the right, in its sole discretion, to modify or amend this Agreement from time to time in accordance with and as provided in the Plan; provided , however , that, unless otherwise required by law, no amendment or modification shall impair the rights of the Participant without the consent of the Participant. This Agreement may also be modified or amended by a writing signed by both the Company and the Participant. The Company shall give written notice to the Participant of any such modification or amendment of this Agreement as soon as practicable after the adoption thereof.

14. Notices . Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, or received by certified mail, return receipt requested, or sent by reputable overnight courier service (charges prepaid) to the Company at the address set forth below to the Participant at such address as indicated by the Company’s records or at such address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party. Notices will be deemed to have been given hereunder (i) when delivered personally to the recipient, (ii) one (1) business day after being sent to the recipient by reputable overnight courier service (charges prepaid), (iii) upon machine-generated acknowledgment of receipt after transmittal by facsimile if so acknowledged to have been received before 5:00 p.m. on a business day at the location of receipt and otherwise on the next following business day, provided that such notice, demand or other communication is also deposited within 24 hours thereafter with a reputable overnight courier service (charges prepaid) for delivery to the same Person, (iv) upon transmittal by e-mail if transmitted before 5:00 p.m. (on a business day) in the time zone of the address (which address is determined in the preceding sentence) of the recipient and otherwise on the next following business day, or (iv) five (5) days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. The Company’s address is:

J.A. Cosmetics Holdings, Inc.

570 10 th Street, 3 rd Floor

Oakland, California 94607

Attention: General Counsel

Fax: ###

Email: ###

 

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with copies (which shall not constitute notice) to:

Kirkland & Ellis LLP

333 South Hope Street, 29th Floor

Los Angeles, California 90071

Attention:        ###

Facsimile:       ###

Email:             ###

15. No Right to Employment or Service . Any questions as to whether and when there has been Termination shall be determined in the sole discretion of the Committee. Nothing in this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries or its Affiliates to terminate the Participant’s employment or service at any time, for any reason and with or without Cause.

16. Transfer of Personal Data .   The Participant authorizes, agrees and unambiguously consents to the transmission by the Company (or any Subsidiary) of any personal data information related to the Option awarded under this Agreement solely for legitimate business purposes (including, without limitation, the administration of the Plan). This authorization and consent is freely given by the Participant. The Company shall take all reasonable steps necessary or appropriate to protect the confidentiality of such personal data information and comply with all laws applicable thereto.

17. Compliance with Laws . The issuance of the Option (and the Option Shares upon exercise of the Option) pursuant to this Agreement shall be subject to, and shall comply with, any applicable requirements of any foreign and U.S. federal and state securities laws, rules and regulations and any other law or regulation applicable thereto. The Company shall not be obligated to issue the Option or any of the Option Shares pursuant to this Agreement if any such issuance would violate any such requirements. As a condition to the issuance of the Option Shares upon exercise of the Option, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate to evidence compliance with any applicable law or regulation.

18. Section 409A . Notwithstanding anything herein or in the Plan to the contrary, the Option is intended to be exempt from the applicable requirements of Section 409A of the Code and shall be limited, construed and interpreted in accordance with such intent.

19. Binding Agreement; Assignment . This Agreement, including as provided in Section 6 hereof, shall inure to the benefit of, be binding upon, and be enforceable by the Company and its successors and assigns. The Participant shall not assign (except as otherwise expressly provided herein) any part of this Agreement without the prior express written consent of the Company.

20. Headings . The titles and headings of the various sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of this Agreement.

 

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21. Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument.

22. Further Assurances . Each party hereto shall do and perform (or shall cause to be done and performed) all such further acts and shall execute and deliver all such other agreements, certificates, instruments and documents as either party hereto reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the Plan and the consummation of the transactions contemplated thereunder.

23. Severability . The invalidity or unenforceability of any provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of any provision of this Agreement in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law. Upon such determination that any provision hereunder, or the application of any such provision, is invalid, illegal, void or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the greatest extent possible. To the extent that the parties hereto cannot agree on a modification to this Agreement pursuant to the preceding sentence, it is the intention of the parties that the invalid, illegal, void or unenforceable provision of this Agreement may be modified or amended by the court to render it enforceable to the maximum extent permitted under applicable law.

24. Acquired Rights . The Participant acknowledges and agrees that: (a) the Company may terminate or amend the Plan at any time, subject to the provisions of the Plan; (b) the award of the Option made under this Agreement is completely independent of any other award or grant and is made at the sole discretion of the Company; (c) no past grants or awards (including, without limitation, the Option awarded hereunder) give the Participant any right to any grants or awards in the future whatsoever; and (d) any benefits granted under this Agreement are not part of the Participant’s ordinary salary, and shall not be considered as part of such salary in the event of severance, redundancy or resignation.

*        *        *         *        *        *

 

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IN WITNESS WHEREOF , the parties hereto have executed this Agreement as of the date first written above.

 

J.A. COSMETICS HOLDINGS, INC.
By:  

 

Name:  

 

Title:  

 

PARTICIPANT

 

[                    ]

Signature Page to Non-Qualified Stock Option Award Agreement


EXHIBIT A

VESTING AND EXERCISE

1. Time Vesting .

(a) General . [                    ] of the Option Shares subject to the Option shall vest and become exercisable as follows, provided that the Participant has not incurred a Termination prior to the applicable “Vesting Date” as defined below (the “ Time-Vesting Tranche ”):

 

Vesting Date 1

   Vested Percentage of Time-Vesting Tranche  

[            ], 2016

     20

[            ], 2017

     40

[            ], 2018

     60

[            ], 2019

     80

[            ], 2020

     100

There shall be no proportionate or partial vesting in the periods prior to each vesting date set forth above (each, a “ Vesting Date ”) and all vesting shall occur only on the appropriate Vesting Date, subject to the Participant’s continued service with the Company or any of its Subsidiaries or Affiliates on each applicable Vesting Date, subject to Section 1(b) of this Exhibit A . Upon expiration of the Option, the Time-Vesting Tranche of the Option shall be cancelled and no longer exercisable.

(b) Accelerated Vesting . The unvested portion of the Time-Vesting Tranche of the Option shall become fully and immediately vested and exercisable upon a Sale of the Company (as such term is defined in the Stockholders Agreement), so long as the Participant has not incurred a Termination prior thereto. If Participant’s employment is terminated due to Participant’s death or Disability, then the portion of the Time-Vesting Tranche which would have vested within twelve (12) months following the Termination date but for such Termination shall become fully and immediately vested and exercisable.

2. Performance Vesting .

(a) [                    ] of the Option Shares subject to the Option shall vest and become exercisable subject to meeting performance thresholds as follows; provided that the Participant has not incurred a Termination prior to meeting the applicable “Performance Threshold” as defined below (the “ Performance-Vesting Tranche ”):

 

Return Multiple (defined below)

  

1.0x

  

3.0x

  

4.3x

Aggregate Vested Portion of Performance-Vesting Tranche    0    [                ]

Option Shares

   [                ]

Option Shares

 

1   Subsequent anniversaries of the Measurement Date.

 

A-1


There shall be no proportionate or partial vesting prior to meeting any Performance Threshold set forth above, and all vesting shall occur only upon meeting the appropriate Performance Threshold, subject to the Participant’s continued service with the Company or any of its Subsidiaries or Affiliates upon meeting each applicable Performance Threshold, subject to Section 2(c) of this Exhibit A . Upon expiration of the Option, the Performance-Vesting Tranche of the Option shall be cancelled and no longer exercisable.

(b) Sale of the Company . The unvested portion of the Performance-Vesting Tranche of the Option shall be cancelled automatically, with no further action required by any Person and no consideration paid therefor, upon the occurrence of a Sale of the Company.

(c) Continued Vesting . In the event of a Termination of the Participant due to the Participant’s death or Disability, the Participant shall remain eligible to vest in the Performance-Vesting Tranche which would have vested within six (6) months following the date of Termination but for such Termination.

3. Miscellaneous Provisions Applicable to Vesting .

(a) Escrow Holdbacks following a Sale of the Company . In connection with a Sale of the Company, if any portion of the transaction consideration to be received by equityholders of the Company is subject to any transaction escrow arrangement or indemnity holdback, a pro rata portion of the proceeds to be received by the Participant in respect of the Option or the shares of Common Stock to be issued upon exercise of the Option may be made subject to such transaction escrow arrangement or indemnity holdback on the same basis as the transaction consideration to be received by such equityholders is made subject to such transaction escrow arrangement or indemnity holdback (taking into account any applicable requirements under Section 409A of the Code).

(b) Termination of Unvested Option . Any portion of the Option that does not become vested and exercisable in accordance with the provisions of this Exhibit A shall be automatically forfeited and cancelled for no value without any consideration being paid therefor and otherwise without any further action of the Company whatsoever.

(c) Committee Authority . The Committee shall in good faith make all determinations necessary or appropriate to determine whether the Performance-Vesting Tranche of the Option has become vested. All computations shall be made on a pro forma basis taking into account the vesting and payment of any entitlements under outstanding incentive equity awards of the Company, such that, if the applicable performance goals are achieved, but, after the vesting and payment of any entitlements under outstanding incentive equity awards of the Company resulting from such achievement, such performance goals would no longer be achieved, then such vesting shall not take effect. The Committee’s determinations shall be final, binding and conclusive upon all parties, absent bad faith or manifest error.

(d) Committee Discretion to Accelerate Vesting . Notwithstanding the foregoing, the Committee may, in its sole discretion, provide for accelerated vesting of any portion of the Option at any time and for any reason.

 

A-2


(e) Definitions .

(i) “ Measurement Date ” means [                    ]. 2

(ii) “ Original Equityholders ” shall mean the holders of equity interests of the Company as of January 31, 2014, together with their Permitted Transferees (as defined in the Stockholders Agreement).

(iii) “ Performance Threshold ” means the receipt by the Original Equityholders of a Return Multiple equal to 3.0 or 4.3, as the case may be, at any time following the Measurement Date; it being understood and agreed that if a particular Performance Threshold is met at any time and the Return Multiple subsequently decreases, there shall be no additional vesting in respect of the Performance-Vesting Tranche as a result of such Performance Threshold subsequently being met again.

(iv) “ Return Multiple ” shall mean, as of the date of measurement, the quotient obtained by dividing (x) the aggregate amount of distributions, dividends and sale proceeds received, following the Measurement Date, by the Original Equityholders in respect of the equity securities of the Company held by them (whether in connection with a Sale of the Company or otherwise, and whether in cash or in publicly traded securities issued as consideration in a Sale of the Company or otherwise), by (y) the aggregate amount of capital contributions made by the Original Equityholders to the Company (including those capital contributions made on or prior to the Measurement Date). For purposes of calculating the amount described in clause (x) of the preceding sentence, (1) any amounts held in indemnification escrow or holdback arrangements in a Sale of the Company shall be taken into account as if paid at the closing thereof, but not any other contingent amounts that may be payable subsequent to such closing, and (2) commencing on the date that is thirty (30) trading days after a Public Offering, the Original Equityholders shall be deemed to have received the average of the closing prices of a share over any period of ninety (90) consecutive trading days with respect to all of the shares of Common Stock (or any successor Company securities) then held by the Original Equityholders (plus any dividends, distributions and sale proceeds in accordance with the previous sentence). For the avoidance of doubt, (a) the Return Multiple shall be calculated after giving effect to any vesting of stock options or bonuses such that the amount received by the Original Equityholders for the purpose of calculating the Return Multiple is net of the effects of such arrangements, and (b) only cash or marketable securities shall be taken into account in determining the amounts described in clause (x) of the first sentence of this paragraph (iv); provided, however, that if dividends, distributions or sale proceeds are not in the form of cash or marketable securities, the Committee shall take such returns into account when making its determination of whether the Performance-Vesting Tranche of the Option has become vested as it deems appropriate to achieve an equitable result.

 

2   For new hires, this will be the date of employment.

 

A-3


[Form Used Through December 16, 2015 for Outside Directors]

NON-QUALIFIED STOCK OPTION AWARD AGREEMENT

PURSUANT TO THE

J.A. COSMETICS HOLDINGS, INC. 2014 EQUITY INCENTIVE PLAN

*  *  *  *  *

Participant: [                    ]

Grant Date: [            ], 2014

Per Share Exercise Price: $[        ]

Number of Option Shares: [                ]

*  *  *  *  *

THIS NON-QUALIFIED STOCK OPTION AWARD AGREEMENT (this “ Agreement ”), dated as of the Grant Date specified above, is entered into by and between J.A. Cosmetics Holdings, Inc., a Delaware corporation (the “ Company ”), and the Participant specified above, pursuant to the J.A. Cosmetics Holdings, Inc. 2014 Equity Incentive Plan, as in effect and as amended from time to time (the “ Plan ”), which is administered by the Committee; and

WHEREAS, it has been determined under the Plan that it would be in the best interests of the Company to grant the Stock Option provided for herein to the Participant.

NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth and for other good and valuable consideration, the parties hereto hereby mutually covenant and agree as follows:

1. Incorporation By Reference; Plan Document Receipt . This Agreement is subject in all respects to the terms and provisions of the Plan (including, without limitation, any amendments thereto adopted at any time and from time to time), all of which terms and provisions are made a part of and incorporated in this Agreement as if they were each expressly set forth herein. Any capitalized term not defined in this Agreement shall have the same meaning as is ascribed thereto in the Plan. The Participant hereby acknowledges receipt of a true copy of the Plan and that the Participant has read the Plan carefully and fully understands its content. In the event of any conflict between the terms of this Agreement and the terms of the Plan, the terms of the Plan shall control. No part of the Stock Option granted hereby is intended to qualify as an “incentive stock option” under Section 422 of the Code.

2. Grant of Option . The Company hereby grants to the Participant, as of the Grant Date specified above, a Stock Option (the “ Option ”) to acquire from the Company at the Per Share Exercise Price specified above, the aggregate number of shares of Common Stock specified above (the “ Option Shares ”). Except as otherwise provided by the Plan, the Participant agrees and understands that nothing contained in this Agreement provides, or is intended to provide, the Participant with any protection against potential future dilution of the Participant’s


interest in the Company for any reason. The Participant shall have no rights as a stockholder with respect to any shares of Common Stock covered by the Option unless and until the Participant has become the holder of record of such shares, and no adjustments shall be made for dividends in cash or other property, distributions or other rights in respect of any such shares, except as otherwise specifically provided for in the Plan or this Agreement.

3. Vesting and Exercise; Option Term .

(a) Vesting and Exercise . The Option shall become vested and exercisable in accordance with the provisions of Exhibit A hereto.

(b) Expiration . Unless earlier terminated in accordance with the terms and provisions of the Plan and/or this Agreement, all portions of the Option (whether vested or not vested) shall expire and shall no longer be exercisable after the expiration of ten (10) years from the Grant Date.

4. Termination . Subject to the terms of this Agreement, which shall supersede any provisions of the Plan to the contrary, the Option, to the extent vested at the time of the Participant’s Termination, shall remain exercisable as follows:

(a) General . Except as otherwise provided in Sections 4(b) and 4(c) hereof, in the event of the Participant’s Termination for any reason, the vested portion of the Option shall remain exercisable until the earlier of (i) ninety (90) days from the date of such Termination, and (ii) the expiration of the stated term of the Option pursuant to Section 3(b) hereof.

(b) Termination due to Death or Disability . In the event of the Participant’s Termination by reason of death or Disability, the vested portion of the Option shall remain exercisable until the earlier of (i) one (1) year from the date of such Termination, and (ii) the expiration of the stated term of the Option pursuant to Section 3(b) hereof.

(c) Termination for Cause . In the event of the Participant’s Termination for Cause or in the event of the Participant’s voluntary Termination after the occurrence of an event that would be grounds for a Termination for Cause, the Participant’s entire Option (whether or not vested) shall terminate and expire upon such Termination.

(d) Treatment of Unvested Options upon Termination . Any portion of the Option that is not vested as of the date of the Participant’s Termination for any reason shall terminate and expire as of the date of such Termination.

5. Method of Exercise and Payment . Subject to Section 11 hereof, to the extent that the Option has become vested and exercisable with respect to a number of shares of Common Stock as provided herein, the Option may thereafter be exercised by the Participant, in whole or in part, at any time or from time to time prior to the expiration of the Option as provided herein and in accordance with Sections 6.4(c) and 6.4(d) of the Plan, including, without limitation, by the filing of any written form of exercise notice as may be required by the Committee and payment in full of the Per Share Exercise Price specified above multiplied by the number of shares of Common Stock underlying the portion of the Option exercised. If the shares underlying the portion of the Option exercised are not freely tradable by the Participant on a

 

2


public securities exchange at the time of exercise, the Participant shall be entitled at his election to require the Company to withhold a number of Option Shares (determined based on the Fair Market Value of the Option Shares on the payment date as determined by the Committee) that would otherwise be issued upon exercise to satisfy the aggregate Per Share Exercise Price and applicable withholding taxes in respect of such exercise (based on minimum applicable statutory withholding rates, as determined on the date that the amount of tax to be withheld is determined).

6. Non-Transferability . The Option, and any rights and interests with respect thereto, including this Agreement, issued under this Agreement and the Plan shall not be sold, exchanged, transferred, assigned or otherwise disposed of in any way by the Participant (or any beneficiary of the Participant), other than by testamentary disposition by the Participant or the laws of descent and distribution. Notwithstanding the foregoing, the Committee may, in its sole discretion, permit the Option to be Transferred to a Family Member for no value, provided that such Transfer shall only be valid upon execution of a written instrument in form and substance acceptable to the Committee in its sole discretion evidencing such Transfer and the transferee’s acceptance thereof signed by the Participant and the transferee, and provided , further , that the Option may not be subsequently Transferred other than by will or by the laws of descent and distribution or to another Family Member (as permitted by the Committee in its sole discretion) in accordance with the terms of the Plan and this Agreement, and shall remain subject to the terms of the Plan and this Agreement.   Any attempt to sell, exchange, transfer, assign, pledge, encumber or otherwise dispose of or hypothecate in any way the Option, or the levy of any execution, attachment or similar legal process upon the Option, contrary to the terms and provisions of this Agreement and/or the Plan shall be null and void and without legal force or effect.

7. Stockholders Agreement and Other Requirements . As a condition to the issuance of shares of Common Stock upon exercise of the Option, to the extent required by the Committee, the Participant shall execute and deliver a joinder to the Stockholders Agreement (the “ Stockholders Agreement ”) and the Registration Rights Agreement (the “ Registration Rights Agreement ”), each entered into among the Company and its stockholders as of January 31, 2014 (in each case with such amendments or modifications approved in accordance with the terms of such agreement), and, to the extent required by the Board or Committee in their sole discretion, any transfer restriction policy applicable to employees of the Company that is adopted in the context of insider trading or similar laws. Such Stockholders Agreement, Registration Rights Agreement and other documentation shall apply to the shares of Common Stock acquired under the Plan and covered by such Stockholders Agreement, Registration Rights Agreement and other documentation. The Company may require, as a condition of exercise, the Participant to become a party to any other existing agreement related to the issuance or holding of shares of Common Stock; provided, however, that unless otherwise required by applicable law, no such agreement shall impair the rights of the Participant without the consent of the Participant.

8. Company Call Rights . Subject to the provisions of any document to which the Participant is required to become a party pursuant to Section 7 hereof, the Option shall be subject to the Company call rights set forth in Article XI of the Plan. To ensure that the Common Stock issuable upon exercise of the Option is not Transferred in contravention of the terms of the Plan and this Agreement, and to ensure compliance with other provisions of the Plan and this Agreement, the Company may deposit the certificates (if any) evidencing the Common Stock to be issued upon the exercise of the Option with an escrow agent designated by the Company.

 

3


9. Securities Representations . Upon the exercise of the Option prior to the registration of the Common Stock to be issued hereunder pursuant to the Securities Act or other applicable securities laws, the Participant shall be deemed to acknowledge and make the following representations and warranties and as otherwise may be requested by the Company for compliance with applicable laws, and any issuances of Common Stock by the Company hereunder shall be made in reliance upon the express representations and warranties of the Participant:

(a) The Participant is acquiring and will hold the Common Stock to be issued hereunder for investment for the Participant’s account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act or other applicable securities laws.

(b) The Participant has been advised that the shares of Common Stock to be issued hereunder have not been registered under the Securities Act or other applicable securities laws, on the ground that no distribution or public offering of such Common Stock is to be effected (it being understood, however, that such Common Stock is being issued and sold in reliance on an exemption from registration under the Securities Act), and that such Common Stock must be held indefinitely, unless it is subsequently registered under the applicable securities laws or the Participant obtains an opinion of counsel (in the form and substance satisfactory to the Company and its counsel) that registration is not required. In connection with the foregoing, the Company is relying in part on the Participant’s representations set forth in this Section 9 . The Participant further acknowledges and understands that the Company is under no obligation hereunder to register the Common Stock to be issued hereunder.

(c) The Participant is aware of the adoption of Rule 144 by the United States Securities and Exchange Commission under the Securities Act, which permits limited public resales of securities acquired in a non-public offering, subject to the satisfaction of certain conditions. The Participant acknowledges that the Participant is familiar with the conditions for resale set forth in Rule 144, and acknowledges and understands that the conditions for resale set forth in Rule 144 may not have been satisfied and that the Company has no plans to satisfy these conditions in the foreseeable future.

(d) The Participant will not Transfer the Common Stock deliverable upon exercise of the Option in violation of the Plan, this Agreement, the Securities Act (or the rules and regulations promulgated thereunder) or under any other applicable securities laws. The Participant agrees that the Participant will not dispose of the Common Stock to be issued hereunder unless and until the Participant has complied with all requirements of the Plan and this Agreement applicable to the disposition of such Common Stock.

(e) The Participant has been furnished with, and has had access to, such information as the Participant considers necessary or appropriate for deciding whether to invest in the Common Stock to be issued hereunder, and the Participant has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the issuance of such Common Stock.

(f) The Participant is aware that an investment in the Company is a speculative investment that has limited liquidity and is subject to the risk of complete loss. The Participant is able, without impairing the Participant’s financial condition, to hold the Common Stock to be issued hereunder for an indefinite period and to suffer a complete loss of the Participant’s investment in such Common Stock.

 

4


10. Governing Law . All questions concerning the construction, validity and interpretation of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the choice of law principles thereof.

11. Withholding of Tax . The Company shall have the power and the right to deduct or withhold, or require the Participant to remit to the Company, an amount sufficient to satisfy any federal, state, local and foreign taxes of any kind (including, but not limited to, the Participant’s FICA and SDI obligations) which the Company, in its sole discretion, deems necessary to be withheld or remitted to comply with the Code and/or any other applicable law, rule or regulation with respect to the Option and, if the Participant fails to do so, the Company may otherwise refuse to issue or transfer any Common Stock otherwise required to be issued pursuant to this Agreement. Any statutorily required minimum withholding obligation with regard to the Participant may be satisfied by reducing the amount of cash or Common Stock otherwise deliverable upon exercise of the Option.

12. Entire Agreement; Amendment . This Agreement, together with the Plan, the Stockholders Agreement and the Registration Rights Agreement, contain the entire agreement between the parties hereto with respect to the subject matter contained herein, and supersedes all prior agreements or prior understandings, whether written or oral, between the parties relating to such subject matter. The Committee shall have the right, in its sole discretion, to modify or amend this Agreement from time to time in accordance with and as provided in the Plan; provided , however , that, unless otherwise required by law, no amendment or modification shall impair the rights of the Participant without the consent of the Participant. This Agreement may also be modified or amended by a writing signed by both the Company and the Participant. The Company shall give written notice to the Participant of any such modification or amendment of this Agreement as soon as practicable after the adoption thereof.

13. Notices . Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, or received by certified mail, return receipt requested, or sent by reputable overnight courier service (charges prepaid) to the Company at the address set forth below to the Participant at such address as indicated by the Company’s records or at such address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party. Notices will be deemed to have been given hereunder (i) when delivered personally to the recipient, (ii) one (1) business day after being sent to the recipient by reputable overnight courier service (charges prepaid), (iii) upon machine-generated acknowledgment of receipt after transmittal by facsimile if so acknowledged to have been received before 5:00 p.m. on a business day at the location of receipt and otherwise on the next following business day, provided that such notice, demand or other communication is also deposited within 24 hours thereafter with a reputable

 

5


overnight courier service (charges prepaid) for delivery to the same Person, (iv) upon transmittal by e-mail if transmitted before 5:00 p.m. (on a business day) in the time zone of the address (which address is determined in the preceding sentence) of the recipient and otherwise on the next following business day, or (iv) five (5) days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. The Company’s address is:

J.A. Cosmetics Holdings, Inc.

10 West 33 rd Street, Suite 802

New York, New York 10001

Attention: General Counsel

Fax:

Email: ###

with copies (which shall not constitute notice) to:

Kirkland & Ellis LLP

333 South Hope Street, 29th Floor

Los Angeles, California 90071

Attention:        ###

                         ###

Facsimile:       ###

Email:             ###

                         ###

14. No Right to Employment or Service . Any questions as to whether and when there has been Termination shall be determined in the sole discretion of the Committee. Nothing in this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries or its Affiliates to terminate the Participant’s employment or service at any time, for any reason and with or without Cause.

15. Transfer of Personal Data .   The Participant authorizes, agrees and unambiguously consents to the transmission by the Company (or any Subsidiary) of any personal data information related to the Option awarded under this Agreement solely for legitimate business purposes (including, without limitation, the administration of the Plan). This authorization and consent is freely given by the Participant. The Company shall take all reasonable steps necessary or appropriate to protect the confidentiality of such personal data information and comply with all laws applicable thereto.

16. Compliance with Laws . The issuance of the Option (and the Option Shares upon exercise of the Option) pursuant to this Agreement shall be subject to, and shall comply with, any applicable requirements of any foreign and U.S. federal and state securities laws, rules and regulations and any other law or regulation applicable thereto. The Company shall not be obligated to issue the Option or any of the Option Shares pursuant to this Agreement if any such issuance would violate any such requirements. As a condition to the issuance of the Option Shares upon exercise of the Option, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate to evidence compliance with any applicable law or regulation.

 

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17. Section 409A . Notwithstanding anything herein or in the Plan to the contrary, the Option is intended to be exempt from the applicable requirements of Section 409A of the Code and shall be limited, construed and interpreted in accordance with such intent.

18. Binding Agreement; Assignment . This Agreement, including as provided in Section 6 hereof, shall inure to the benefit of, be binding upon, and be enforceable by the Company and its successors and assigns. The Participant shall not assign (except as otherwise expressly provided herein) any part of this Agreement without the prior express written consent of the Company.

19. Headings . The titles and headings of the various sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of this Agreement.

20. Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument.

21. Further Assurances . Each party hereto shall do and perform (or shall cause to be done and performed) all such further acts and shall execute and deliver all such other agreements, certificates, instruments and documents as either party hereto reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the Plan and the consummation of the transactions contemplated thereunder.

22. Severability . The invalidity or unenforceability of any provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of any provision of this Agreement in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law. Upon such determination that any provision hereunder, or the application of any such provision, is invalid, illegal, void or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the greatest extent possible. To the extent that the parties hereto cannot agree on a modification to this Agreement pursuant to the preceding sentence, it is the intention of the parties that the invalid, illegal, void or unenforceable provision of this Agreement may be modified or amended by the court to render it enforceable to the maximum extent permitted under applicable law.

23. Acquired Rights . The Participant acknowledges and agrees that: (a) the Company may terminate or amend the Plan at any time, subject to the provisions of the Plan; (b) the award of the Option made under this Agreement is completely independent of any other award or grant and is made at the sole discretion of the Company; (c) no past grants or awards (including, without limitation, the Option awarded hereunder) give the Participant any right to any grants or awards in the future whatsoever; and (d) any benefits granted under this Agreement are not part of the Participant’s ordinary salary, and shall not be considered as part of such salary in the event of severance, redundancy or resignation.

 

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IN WITNESS WHEREOF , the parties hereto have executed this Agreement as of the date first written above.

 

J.A. COSMETICS HOLDINGS, INC.
By:  

 

Name:  

 

Title:  

 

PARTICIPANT

 

[                    ]

Signature Page to Non-Qualified Stock Option Award Agreement


EXHIBIT A

VESTING AND EXERCISE

1. General .

(a) All of the Option Shares subject to the Option shall vest and become exercisable as follows, provided that the Participant has not incurred a Termination prior to the applicable “Vesting Date” as defined below:

 

Vesting Date

   Vested Percentage of Option Shares  

[            ], 2015

     20

[            ], 2016

     40

[            ], 2017

     60

[            ], 2018

     80

[            ], 2019

     100

There shall be no proportionate or partial vesting in the periods prior to each vesting date set forth above (each, a “ Vesting Date ”) and all vesting shall occur only on the appropriate Vesting Date, subject to the Participant’s continued service with the Company or any of its Subsidiaries on each applicable Vesting Date, subject to Section 1(b) of this Exhibit A . Upon expiration of the Option, the Option shall be cancelled and no longer exercisable.

(b) Accelerated Vesting . The unvested portion of the Option shall become fully and immediately vested and exercisable upon the first to occur of a Sale of the Company or a Public Offering (as each such term is defined in the Stockholders Agreement), so long as the Participant has not incurred a Termination prior thereto. If Participant’s directorship is terminated due to Participant’s death or Disability, then the portion of the Option which would have vested within twelve (12) months following the Termination date but for such Termination shall become fully and immediately vested and exercisable.

2. Miscellaneous Provisions Applicable to Vesting .

(a) Escrow Holdbacks following a Sale of the Company . In connection with a Sale of the Company, if any portion of the transaction consideration to be received by equityholders of the Company is subject to any transaction escrow arrangement or indemnity holdback, a pro rata portion of the proceeds to be received by the Participant in respect of the Option or the shares of Common Stock to be issued upon exercise of the Option may be made subject to such transaction escrow arrangement or indemnity holdback on the same basis as the transaction consideration to be received by such equityholders is made subject to such transaction escrow arrangement or indemnity holdback (taking into account any applicable requirements under Section 409A of the Code).

(b) Termination of Unvested Option . Any portion of the Option that does not become vested and exercisable in accordance with the provisions of this Exhibit A shall be automatically forfeited and cancelled for no value without any consideration being paid therefor and otherwise without any further action of the Company whatsoever.

(c) Committee Discretion to Accelerate Vesting . Notwithstanding the foregoing, the Committee may, in its sole discretion, provide for accelerated vesting of any portion of the Option at any time and for any reason.

 

A-1


[Form Used Through December 16, 2015 for Senior Executives]

NON-QUALIFIED STOCK OPTION AWARD AGREEMENT

PURSUANT TO THE

J.A. COSMETICS HOLDINGS, INC. 2014 EQUITY INCENTIVE PLAN

*  *  *  *  *

Participant: [                    ]

Grant Date: [            ], 2014

Per Share Exercise Price: $[        ]

Number of Option Shares: [                ] (including the amount vesting solely upon an Early Liquidity Event)

*  *  *  *  *

THIS NON-QUALIFIED STOCK OPTION AWARD AGREEMENT (this “ Agreement ”), dated as of the Grant Date specified above, is entered into by and between J.A. Cosmetics Holdings, Inc., a Delaware corporation (the “ Company ”), and the Participant specified above, pursuant to the J.A. Cosmetics Holdings, Inc. 2014 Equity Incentive Plan, as in effect and as amended from time to time (the “ Plan ”), which is administered by the Committee; and

WHEREAS, it has been determined under the Plan that it would be in the best interests of the Company to grant the Stock Option provided for herein to the Participant.

NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth and for other good and valuable consideration, the parties hereto hereby mutually covenant and agree as follows:

1. Incorporation By Reference; Plan Document Receipt . This Agreement is subject in all respects to the terms and provisions of the Plan (including, without limitation, any amendments thereto adopted at any time and from time to time), all of which terms and provisions are made a part of and incorporated in this Agreement as if they were each expressly set forth herein. Any capitalized term not defined in this Agreement shall have the same meaning as is ascribed thereto in the Plan. The Participant hereby acknowledges receipt of a true copy of the Plan and that the Participant has read the Plan carefully and fully understands its content. In the event of any conflict between the terms of this Agreement and the terms of the Plan, the terms of the Plan shall control. No part of the Stock Option granted hereby is intended to qualify as an “incentive stock option” under Section 422 of the Code.

2. Grant of Option . The Company hereby grants to the Participant, as of the Grant Date specified above, a Stock Option (the “ Option ”) to acquire from the Company at the Per Share Exercise Price specified above, the aggregate number of shares of Common Stock specified above (the “ Option Shares ”). Except as otherwise provided by the Plan, the Participant agrees and understands that nothing contained in this Agreement provides, or is intended to provide, the Participant with any protection against potential future dilution of the Participant’s


interest in the Company for any reason. The Participant shall have no rights as a stockholder with respect to any shares of Common Stock covered by the Option unless and until the Participant has become the holder of record of such shares, and no adjustments shall be made for dividends in cash or other property, distributions or other rights in respect of any such shares, except as otherwise specifically provided for in the Plan or this Agreement.

3. Vesting and Exercise; Option Term .

(a) Vesting and Exercise . The Option shall become vested and exercisable in accordance with the provisions of Exhibit A hereto.

(b) Expiration . Unless earlier terminated in accordance with the terms and provisions of the Plan and/or this Agreement, all portions of the Option (whether vested or not vested) shall expire and shall no longer be exercisable after the expiration of ten (10) years from the Grant Date.

4. Termination . Subject to the terms of this Agreement, which shall supersede any provisions of the Plan to the contrary, the Option, to the extent vested at the time of the Participant’s Termination, shall remain exercisable as follows:

(a) General . Except as otherwise provided in Sections 4(b) and 4(c) hereof, in the event of the Participant’s Termination for any reason, the vested portion of the Option shall remain exercisable until the earlier of (i) ninety (90) days from the date of such Termination, and (ii) the expiration of the stated term of the Option pursuant to Section 3(b) hereof.

(b) Termination due to Death or Disability or by the Company without Cause or by the Participant with Good Reason . In the event of the Participant’s Termination by reason of death or Disability, by the Company without Cause or by the Participant with Good Reason (as such terms are defined in the Employment Agreement among the Participant, the Company and J.A. Cosmetics US, Inc., (the “ Employment Agreement ”)), the vested portion of the Option shall remain exercisable until the earlier of (i) one (1) year from the date of such Termination, and (ii) the expiration of the stated term of the Option pursuant to Section 3(b) hereof.

(c) Termination for Cause . In the event of the Participant’s Termination for Cause or in the event of the Participant’s voluntary Termination after the occurrence of an event that would be grounds for a Termination for Cause, the Participant’s entire Option (whether or not vested) shall terminate and expire upon such Termination.

(d) Treatment of Unvested Options upon Termination . Subject to Section 2(c) of Exhibit A , any portion of the Option that is not vested as of the date of the Participant’s Termination for any reason shall terminate and expire as of the date of such Termination.

5. Method of Exercise and Payment . Subject to Section 12 hereof, to the extent that the Option has become vested and exercisable with respect to a number of shares of Common Stock as provided herein, the Option may thereafter be exercised by the Participant, in

 

2


whole or in part, at any time or from time to time prior to the expiration of the Option as provided herein and in accordance with Sections 6.4(c) and 6.4(d) of the Plan, including, without limitation, by the filing of any written form of exercise notice as may be required by the Committee and payment in full of the Per Share Exercise Price specified above multiplied by the number of shares of Common Stock underlying the portion of the Option exercised. If the shares underlying the portion of the Option exercised are not freely tradable by the Participant on a public securities exchange at the time of exercise, the Participant shall be entitled at his election to require the Company to withhold a number of Option Shares (determined based on the Fair Market Value of the Option Shares on the payment date as determined by the Committee) that would otherwise be issued upon exercise to satisfy the aggregate Per Share Exercise Price and applicable withholding taxes in respect of such exercise (based on minimum applicable statutory withholding rates, as determined on the date that the amount of tax to be withheld is determined).

6. Non-Transferability . The Option, and any rights and interests with respect thereto, including this Agreement, issued under this Agreement and the Plan shall not be sold, exchanged, transferred, assigned or otherwise disposed of in any way by the Participant (or any beneficiary of the Participant), other than by testamentary disposition by the Participant or the laws of descent and distribution. Notwithstanding the foregoing, the Committee may, in its sole discretion, permit the Option to be Transferred to a Family Member for no value, provided that such Transfer shall only be valid upon execution of a written instrument in form and substance acceptable to the Committee in its sole discretion evidencing such Transfer and the transferee’s acceptance thereof signed by the Participant and the transferee, and provided , further , that the Option may not be subsequently Transferred other than by will or by the laws of descent and distribution or to another Family Member (as permitted by the Committee in its sole discretion) in accordance with the terms of the Plan and this Agreement, and shall remain subject to the terms of the Plan and this Agreement.   Any attempt to sell, exchange, transfer, assign, pledge, encumber or otherwise dispose of or hypothecate in any way the Option, or the levy of any execution, attachment or similar legal process upon the Option, contrary to the terms and provisions of this Agreement and/or the Plan shall be null and void and without legal force or effect.

7. Stockholders Agreement and Other Requirements . As a condition to the issuance of shares of Common Stock upon exercise of the Option, to the extent required by the Committee, the Participant shall execute and deliver a joinder to the Stockholders Agreement (the “ Stockholders Agreement ”) and the Registration Rights Agreement (the “ Registration Rights Agreement ”), each entered into among the Company and its stockholders as of January 31, 2014 (in each case with such amendments or modifications approved in accordance with the terms of such agreement), and, to the extent required by the Board or Committee in their sole discretion, any transfer restriction policy applicable to employees of the Company that is adopted in the context of insider trading or similar laws. Such Stockholders Agreement, Registration Rights Agreement and other documentation shall apply to the shares of Common Stock acquired under the Plan and covered by such Stockholders Agreement, Registration Rights Agreement and other documentation. The Company may require, as a condition of exercise, the Participant to become a party to any other existing agreement related to the issuance or holding of shares of Common Stock; provided, however, that unless otherwise required by applicable law, no such agreement shall impair the rights of the Participant without the consent of the Participant.

 

3


8. Company Call Rights . Subject to the provisions of any document to which the Participant is required to become a party pursuant to Section 7 hereof, the Option shall be subject to the Company call rights set forth in Article XI of the Plan. To ensure that the Common Stock issuable upon exercise of the Option is not Transferred in contravention of the terms of the Plan and this Agreement, and to ensure compliance with other provisions of the Plan and this Agreement, the Company may deposit the certificates (if any) evidencing the Common Stock to be issued upon the exercise of the Option with an escrow agent designated by the Company.

9. Restrictive Covenants .

(a) Non-Compete . The Participant agrees that during the Participant’s employment with the Company and its Subsidiaries and for one (1) year following the Termination thereof (the “ Restricted Period ”), the Participant shall not, anywhere in the areas where the Company or any of its Subsidiaries conducts business during such employment (the “ Restricted Territory ”), directly or indirectly, own, manage, operate, join, control or participate in the ownership, management, operation or control of, or be an officer or an employee of any business or organization that, directly or indirectly, develops, processes, packages, markets, promotes or sells color cosmetics or related services in the Restricted Territories (each, a “ Restricted Business ”). The foregoing shall not restrict the Participant from (a) owning up to 5% of any class of securities of any person engaged in a Restricted Business if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Exchange Act, as long as such securities are held solely as a passive investment and not with a view to influencing, controlling or directing the affairs of such person), or (b) following the Participant’s termination of employment, being an officer, director, employee, shareholder, consultant, contractor, partner, joint venturer, agent, equity owner or acting in another capacity of or for (i) a business that principally sells retail goods (such as Wal Mart) for which sales of products manufactured by a Restricted Business generate less than 10 percent of its revenue or (ii) a business entity that has multiple lines of business, some of which are not a Restricted Business, so long as the Participant’s services for such entity are restricted so that he will provide no services or other assistance in support of, and will not otherwise be involved with, any Restricted Business conducted by such entity (except that the Participant shall be permitted to serve in a management capacity with responsibility for multiple product lines so long as such responsibility does not cover product lines for which more than 10 percent of the collective revenues are generated by a Restricted Business).

(b) Non-Solicitation . The Participant agrees that during the Restricted Period, the Participant will not, directly or indirectly, for himself or on behalf of or in conjunction with any other person, (i) hire or attempt to hire any person that is an employee of the Company or any of its Subsidiaries within six (6) months prior to the date of Termination; provided, however, this Section 9(b) (including clause (ii) below) shall not be breached by a solicitation to the general public or through general advertising, and the Participant may solicit for employment any person who at the date of Termination had not been an employee of the Company or its Subsidiaries at any time within six (6) months preceding such date or whose employment with the Company or its Subsidiaries had terminated more than six (6) months prior to the Participant’s solicitation of such person or (ii) solicit, advise or encourage any person, firm, government agency or corporation to withdraw, curtail or cancel its business with the Company or its Subsidiaries.

 

4


(c) Non-Disparagement . During the Participant’s employment with the Company and its Subsidiaries and thereafter, the Participant agrees that he will not, at any time, make, directly or indirectly, any oral or written statements that are disparaging of the Company or its Subsidiaries, any of their products or services, or any of their present or former officers, directors, stockholders or employees (or any of their respective Affiliates), and the Company shall instruct the Board and its executives not to disparage the Participant orally or in writing at any time; provided that either party may confer in confidence with its legal representatives and make truthful statements as required by law.

(d) Confidential Information . The Participant acknowledges and agrees that the customers, business connections, customer lists, procedures, operations, techniques and other aspects of and information about the business of the Company and its Subsidiaries (the “ Confidential Information ”) are established at great expense and protected as confidential information and provide the Company and its Subsidiaries with a substantial competitive advantage in conducting its business. The Participant further acknowledges and agrees that by virtue of his employment with the Company and its Subsidiaries, he has had access to and will have access to, and has been entrusted with and will be entrusted with Confidential Information, and that the Company and its Subsidiaries would suffer great loss and injury if the Participant would disclose this information or use it in a manner not specifically authorized by the Company. Therefore, the Participant agrees that during his employment with the Company and its Subsidiaries and at all times thereafter, he will not, directly or indirectly, either individually or as an employee, agent, partner, shareholder, owner trustee, beneficiary, co-venturer distributor, consultant or in any other capacity, use or disclose or cause to be used or disclosed any Confidential Information, unless and to the extent (i) that any such information becomes generally known to and available for use by the public other than as a result of the Participant’s acts or omissions, (ii) authorized in writing by the Board or compelled by legal process (provided that the Participant provides the Company with advance notice adequate to afford the Company reasonable opportunity to limit or prevent such disclosure), or (iii) use or disclosure is to an employee of the Company or a person to whom disclosure is reasonably necessary or appropriate in connection with the performance by the Participant of his duties as an employee or director of the Company and its Subsidiaries. The Participant shall deliver to the Company upon any Termination, or at any other time the Company may request, all memoranda, notes, plans, records, reports, computer tapes, printouts and software and other documents and data (and copies thereof) relating to the Confidential Information or Work Product (as defined below) which he may then possess or have under his control, provided that the Participant shall be entitled to retain his telephone, address and other contact directories subject to compliance with Sections 9(a) through 9(c) . The Participant acknowledges and agrees that all inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not patentable) that relate to the actual or anticipated business of the Company and its Subsidiaries and that are conceived, developed or made by the Participant while employed by the Company and its Subsidiaries and during work hours or by the use of the facilities or Confidential Information of the Company and its Subsidiaries (“ Work Product ”) belong to the Company and its Subsidiaries.

(e) Reasonableness of Covenants . In signing this Agreement, the Participant agrees and acknowledges that the potential harm to the Company and its Subsidiaries of the non-enforcement of this Section 9 outweighs any harm to the Participant of its enforcement by

 

5


injunction or otherwise. The Participant hereby acknowledges that he or she has carefully read this Agreement with its legal counsel and has given careful consideration to the restraints imposed upon the Participant, and understands and acknowledges the significance and consequences of this Agreement and is in full accord as to their necessity for the reasonable and proper protection of the Confidential Information. The Participant expressly acknowledges and agrees that each and every restriction imposed by this Agreement is reasonable with respect to subject matter, time period, geographical area and scope and such restrictions are necessary to protect the Company’s, its Subsidiaries’ and its Affiliates’ interest in, and value of, the Company, its Subsidiaries and its Affiliates (including, without limitation, the goodwill inherent therein). The Participant hereby represents and warrants to the Company that upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding obligation of the Participant, enforceable in accordance with its terms. The Participant understands and agrees that the restrictions and covenants contained in this Section 9 are in addition to, and not in lieu of, any non-competition, non-solicitation or other similar obligations contained in any other agreements between the Participant and the Company, its Subsidiaries or its Affiliates.

(f) Reformation . If it is determined by a court of competent jurisdiction in any state that any restriction in this Section 9 is excessive in duration or scope or is unreasonable or unenforceable under applicable law, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the maximum extent permitted by the laws of that state.

(g) Tolling . In the event of any violation of the provisions of this Section 9 , the Participant acknowledges and agrees that the post-termination restrictions contained in this Section 9 shall be extended by a period of time equal to the period of such violation, it being the intention of the parties hereto that the running of the applicable post-termination restriction period shall be tolled during any period of such violation.

(h) Survival . The obligations contained in this Section 9 hereof shall survive the termination of the Participant’s employment or other service with the Company and its Subsidiaries and the date on which the Participant no longer holds, directly or indirectly, any equity securities in the Company, and shall be fully enforceable thereafter in accordance with the terms hereof.

(i) Remedies . The Participant acknowledges and agrees that the Company’s remedies at law for a breach or threatened breach of any of the provisions of this Section 9 would be inadequate and, in recognition of this fact, the Participant agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond or other security, shall be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available, without the necessity of showing actual monetary damages.

10. Securities Representations . Upon the exercise of the Option prior to the registration of the Common Stock to be issued hereunder pursuant to the Securities Act or other applicable securities laws, the Participant shall be deemed to acknowledge and make the

 

6


following representations and warranties and as otherwise may be requested by the Company for compliance with applicable laws, and any issuances of Common Stock by the Company hereunder shall be made in reliance upon the express representations and warranties of the Participant:

(a) The Participant is acquiring and will hold the Common Stock to be issued hereunder for investment for the Participant’s account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act or other applicable securities laws.

(b) The Participant has been advised that the shares of Common Stock to be issued hereunder have not been registered under the Securities Act or other applicable securities laws, on the ground that no distribution or public offering of such Common Stock is to be effected (it being understood, however, that such Common Stock is being issued and sold in reliance on an exemption from registration under the Securities Act), and that such Common Stock must be held indefinitely, unless it is subsequently registered under the applicable securities laws or the Participant obtains an opinion of counsel (in the form and substance satisfactory to the Company and its counsel) that registration is not required. In connection with the foregoing, the Company is relying in part on the Participant’s representations set forth in this Section 9 . The Participant further acknowledges and understands that the Company is under no obligation hereunder to register the Common Stock to be issued hereunder.

(c) The Participant is aware of the adoption of Rule 144 by the United States Securities and Exchange Commission under the Securities Act, which permits limited public resales of securities acquired in a non-public offering, subject to the satisfaction of certain conditions. The Participant acknowledges that the Participant is familiar with the conditions for resale set forth in Rule 144, and acknowledges and understands that the conditions for resale set forth in Rule 144 may not have been satisfied and that the Company has no plans to satisfy these conditions in the foreseeable future.

(d) The Participant will not Transfer the Common Stock deliverable upon exercise of the Option in violation of the Plan, this Agreement, the Securities Act (or the rules and regulations promulgated thereunder) or under any other applicable securities laws. The Participant agrees that the Participant will not dispose of the Common Stock to be issued hereunder unless and until the Participant has complied with all requirements of the Plan and this Agreement applicable to the disposition of such Common Stock.

(e) The Participant has been furnished with, and has had access to, such information as the Participant considers necessary or appropriate for deciding whether to invest in the Common Stock to be issued hereunder, and the Participant has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the issuance of such Common Stock.

(f) The Participant is aware that an investment in the Company is a speculative investment that has limited liquidity and is subject to the risk of complete loss. The Participant is able, without impairing the Participant’s financial condition, to hold the Common Stock to be issued hereunder for an indefinite period and to suffer a complete loss of the Participant’s investment in such Common Stock.

 

7


11. Governing Law . All questions concerning the construction, validity and interpretation of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the choice of law principles thereof.

12. Withholding of Tax . The Company shall have the power and the right to deduct or withhold, or require the Participant to remit to the Company, an amount sufficient to satisfy any federal, state, local and foreign taxes of any kind (including, but not limited to, the Participant’s FICA and SDI obligations) which the Company, in its sole discretion, deems necessary to be withheld or remitted to comply with the Code and/or any other applicable law, rule or regulation with respect to the Option and, if the Participant fails to do so, the Company may otherwise refuse to issue or transfer any Common Stock otherwise required to be issued pursuant to this Agreement. Any statutorily required minimum withholding obligation with regard to the Participant may be satisfied by reducing the amount of cash or Common Stock otherwise deliverable upon exercise of the Option.

13. Entire Agreement; Amendment . This Agreement, together with the Employment Agreement, the Plan, the Stockholders Agreement and the Registration Rights Agreement, contain the entire agreement between the parties hereto with respect to the subject matter contained herein, and supersedes all prior agreements or prior understandings, whether written or oral, between the parties relating to such subject matter. The Committee shall have the right, in its sole discretion, to modify or amend this Agreement from time to time in accordance with and as provided in the Plan; provided , however , that, unless otherwise required by law, no amendment or modification shall impair the rights of the Participant without the consent of the Participant. This Agreement may also be modified or amended by a writing signed by both the Company and the Participant. The Company shall give written notice to the Participant of any such modification or amendment of this Agreement as soon as practicable after the adoption thereof.

14. Notices . Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, or received by certified mail, return receipt requested, or sent by reputable overnight courier service (charges prepaid) to the Company at the address set forth below to the Participant at such address as indicated by the Company’s records or at such address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party. Notices will be deemed to have been given hereunder (i) when delivered personally to the recipient, (ii) one (1) business day after being sent to the recipient by reputable overnight courier service (charges prepaid), (iii) upon machine-generated acknowledgment of receipt after transmittal by facsimile if so acknowledged to have been received before 5:00 p.m. on a business day at the location of receipt and otherwise on the next following business day, provided that such notice, demand or other communication is also deposited within 24 hours thereafter with a reputable overnight courier service (charges prepaid) for delivery to the same Person, (iv) upon transmittal by e-mail if transmitted before 5:00 p.m. (on a business day) in the time zone of the address (which address is determined in the preceding sentence) of the recipient and otherwise on the next following business day, or (iv) five (5) days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. The Company’s address is:

J.A. Cosmetics Holdings, Inc.

10 West 33 rd Street, Suite 802

New York, New York 10001

Attention: General Counsel

Fax:

Email: ###

 

8


with copies (which shall not constitute notice) to:

Kirkland & Ellis LLP

333 South Hope Street, 29th Floor

Los Angeles, California 90071

Attention:        ###

                         ###

Facsimile:       ###

Email:             ###

                         ###

15. No Right to Employment or Service . Any questions as to whether and when there has been Termination shall be determined in the sole discretion of the Committee. Nothing in this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries or its Affiliates to terminate the Participant’s employment or service at any time, for any reason and with or without Cause.

16. Transfer of Personal Data .   The Participant authorizes, agrees and unambiguously consents to the transmission by the Company (or any Subsidiary) of any personal data information related to the Option awarded under this Agreement solely for legitimate business purposes (including, without limitation, the administration of the Plan). This authorization and consent is freely given by the Participant. The Company shall take all reasonable steps necessary or appropriate to protect the confidentiality of such personal data information and comply with all laws applicable thereto.

17. Compliance with Laws . The issuance of the Option (and the Option Shares upon exercise of the Option) pursuant to this Agreement shall be subject to, and shall comply with, any applicable requirements of any foreign and U.S. federal and state securities laws, rules and regulations and any other law or regulation applicable thereto. The Company shall not be obligated to issue the Option or any of the Option Shares pursuant to this Agreement if any such issuance would violate any such requirements. As a condition to the issuance of the Option Shares upon exercise of the Option, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate to evidence compliance with any applicable law or regulation.

18. Section 409A . Notwithstanding anything herein or in the Plan to the contrary, the Option is intended to be exempt from the applicable requirements of Section 409A of the Code and shall be limited, construed and interpreted in accordance with such intent.

 

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19. Binding Agreement; Assignment . This Agreement, including as provided in Section 6 hereof, shall inure to the benefit of, be binding upon, and be enforceable by the Company and its successors and assigns. The Participant shall not assign (except as otherwise expressly provided herein) any part of this Agreement without the prior express written consent of the Company.

20. Headings . The titles and headings of the various sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of this Agreement.

21. Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument.

22. Further Assurances . Each party hereto shall do and perform (or shall cause to be done and performed) all such further acts and shall execute and deliver all such other agreements, certificates, instruments and documents as either party hereto reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the Plan and the consummation of the transactions contemplated thereunder.

23. Severability . The invalidity or unenforceability of any provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of any provision of this Agreement in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law. Upon such determination that any provision hereunder, or the application of any such provision, is invalid, illegal, void or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the greatest extent possible. To the extent that the parties hereto cannot agree on a modification to this Agreement pursuant to the preceding sentence, it is the intention of the parties that the invalid, illegal, void or unenforceable provision of this Agreement may be modified or amended by the court to render it enforceable to the maximum extent permitted under applicable law.

24. Acquired Rights . The Participant acknowledges and agrees that: (a) the Company may terminate or amend the Plan at any time, subject to the provisions of the Plan; (b) the award of the Option made under this Agreement is completely independent of any other award or grant and is made at the sole discretion of the Company; (c) no past grants or awards (including, without limitation, the Option awarded hereunder) give the Participant any right to any grants or awards in the future whatsoever; and (d) any benefits granted under this Agreement are not part of the Participant’s ordinary salary, and shall not be considered as part of such salary in the event of severance, redundancy or resignation.

*        *        *         *        *        *

 

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IN WITNESS WHEREOF , the parties hereto have executed this Agreement as of the date first written above.

 

J.A. COSMETICS HOLDINGS, INC.
By:  

 

Name:  

 

Title:  

 

PARTICIPANT

 

[                    ]

Signature Page to Non-Qualified Stock Option Award Agreement


EXHIBIT A

VESTING AND EXERCISE

1. Time Vesting .

(a) General . [                    ] of the Option Shares subject to the Option shall vest and become exercisable as follows, provided that the Participant has not incurred a Termination prior to the applicable “Vesting Date” as defined below (the “ Time-Vesting Tranche ”):

 

Vesting Date 1

   Vested Percentage of Time-Vesting Tranche  

[                     ], 2015

     20

[                     ], 2016

     40

[                     ], 2017

     60

[                     ], 2018

     80

[                     ], 2019

     100

There shall be no proportionate or partial vesting in the periods prior to each vesting date set forth above (each, a “ Vesting Date ”) and all vesting shall occur only on the appropriate Vesting Date, subject to the Participant’s continued service with the Company or any of its Subsidiaries or Affiliates on each applicable Vesting Date, subject to Section 1(b) of this Exhibit A . Upon expiration of the Option, the Time-Vesting Tranche of the Option shall be cancelled and no longer exercisable.

(b) Accelerated Vesting . The unvested portion of the Time-Vesting Tranche of the Option shall become fully and immediately vested and exercisable upon the first to occur of a Sale of the Company or a Public Offering (as such terms are defined in the Stockholders Agreement), so long as the Participant has not incurred a Termination prior thereto. If Participant’s employment is terminated due to Participant’s death or Disability, by the Company without Cause or by the Participant for Good Reason, then the portion of the Time-Vesting Tranche which would have vested within twelve (12) months following the Termination date but for such Termination shall become fully and immediately vested and exercisable; provided, however, that if the Participant’s employment is terminated by the Company without Cause or by the Participant for Good Reason within the first twelve (12) months following the Measurement Date, then the portion of the Time-Vesting Tranche which would have vested within twenty-four (24) months following the Termination date but for such Termination shall become fully and immediately vested and exercisable.

  

 

1   Subsequent anniversaries of the Measurement Date.

 

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2. Performance Vesting .

(a) [                    ] of the Option Shares subject to the Option (including the amount vesting solely upon an Early Liquidity Event) shall vest and become exercisable subject to meeting performance thresholds as follows; provided that the Participant has not incurred a Termination prior to meeting the applicable “Performance Threshold” as defined below (the “ Performance-Vesting Tranche ”):

 

Return Multiple (defined below)

  

1.0x

  

3.0x

  

4.3x

Aggregate Vested Portion of Performance-Vesting Tranche ( without an Early Liquidity Event, as defined below)    0   

[                ]

Option Shares

  

[                ]

Option Shares

Aggregate Vested Portion of Performance-Vesting Tranche ( with an Early Liquidity Event, as defined below)    0   

[                ]

Option Shares

  

[                ]

Option Shares

There shall be no proportionate or partial vesting prior to meeting any Performance Threshold set forth above, and all vesting shall occur only upon meeting the appropriate Performance Threshold, subject to the Participant’s continued service with the Company or any of its Subsidiaries or Affiliates upon meeting each applicable Performance Threshold, subject to Section 2(c) of this Exhibit A . Upon expiration of the Option, the Performance-Vesting Tranche of the Option shall be cancelled and no longer exercisable.

(b) Sale of the Company . The unvested portion of the Performance-Vesting Tranche of the Option shall be cancelled automatically, with no further action required by any Person and no consideration paid therefor, upon the occurrence of a Sale of the Company.

(c) Continued Vesting . In the event of a Termination of the Participant (i) due to the Participant’s death or Disability, (ii) by the Company without Cause or (iii) by the Participant for Good Reason, the Participant shall remain eligible to vest in the Performance-Vesting Tranche which would have vested within six (6) months following the date of Termination but for such Termination.

3. Miscellaneous Provisions Applicable to Vesting .

(a) Escrow Holdbacks following a Sale of the Company . In connection with a Sale of the Company, if any portion of the transaction consideration to be received by equityholders of the Company is subject to any transaction escrow arrangement or indemnity holdback, a pro rata portion of the proceeds to be received by the Participant in respect of the Option or the shares of Common Stock to be issued upon exercise of the Option may be made subject to such transaction escrow arrangement or indemnity holdback on the same basis as the transaction consideration to be received by such equityholders is made subject to such transaction escrow arrangement or indemnity holdback (taking into account any applicable requirements under Section 409A of the Code).

 

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(b) Termination of Unvested Option . Any portion of the Option that does not become vested and exercisable in accordance with the provisions of this Exhibit A shall be automatically forfeited and cancelled for no value without any consideration being paid therefor and otherwise without any further action of the Company whatsoever.

(c) Committee Authority . The Committee shall in good faith make all determinations necessary or appropriate to determine whether the Performance-Vesting Tranche of the Option has become vested. All computations shall be made on a pro forma basis taking into account the vesting and payment of any entitlements under outstanding incentive equity awards of the Company, such that, if the applicable performance goals are achieved, but, after the vesting and payment of any entitlements under outstanding incentive equity awards of the Company resulting from such achievement, such performance goals would no longer be achieved, then such vesting shall not take effect. The Committee’s determinations shall be final, binding and conclusive upon all parties, absent bad faith or manifest error.

(d) Committee Discretion to Accelerate Vesting . Notwithstanding the foregoing, the Committee may, in its sole discretion, provide for accelerated vesting of any portion of the Option at any time and for any reason.

(e) Definitions .

(i) “ Early Liquidity Event ” shall mean the achievement of a Return Multiple of 3.0 or greater as a result of a Sale of the Company that is consummated on or before January 31, 2016.

(ii) “ Measurement Date ” means [                    ]. 2

(iii) “ Original Equityholders ” shall mean the holders of equity interests of the Company as of January 31, 2014, together with their Permitted Transferees (as defined in the Stockholders Agreement).

(iv) “ Performance Threshold ” means the receipt by the Original Equityholders of a Return Multiple equal to 3.0 or 4.3, as the case may be, at any time following the Measurement Date; it being understood and agreed that if a particular Performance Threshold is met at any time and the Return Multiple subsequently decreases, there shall be no additional vesting in respect of the Performance-Vesting Tranche as a result of such Performance Threshold subsequently being met again.

(v) “ Return Multiple ” shall mean, as of the date of measurement, the quotient obtained by dividing (x) the aggregate amount of distributions, dividends and sale proceeds received, following the Measurement Date, by the Original Equityholders in respect of the equity securities of the Company held by them (whether in connection with a Sale of the Company or otherwise, and whether in cash or in publicly traded securities issued as consideration in a Sale of the Company or otherwise), by (y) the aggregate amount of capital contributions made by the Original Equityholders to the Company (including those capital

 

 

2   For new hires, this will be the date of employment, and for existing employees, this will be the date of grant or January 31, 2014 (as determined by the Board or Compensation Committee).

 

A-3


contributions made on or prior to the Measurement Date). For purposes of calculating the amount described in clause (x) of the preceding sentence, (1) any amounts held in indemnification escrow or holdback arrangements in a Sale of the Company shall be taken into account as if paid at the closing thereof, but not any other contingent amounts that may be payable subsequent to such closing, and (2) commencing on the date that is thirty (30) trading days after a Public Offering, the Original Equityholders shall be deemed to have received the average of the closing prices of a share over any period of ninety (90) consecutive trading days with respect to all of the shares of Common Stock (or any successor Company securities) then held by the Original Equityholders (plus any dividends, distributions and sale proceeds in accordance with the previous sentence). For the avoidance of doubt, (a) the Return Multiple shall be calculated after giving effect to any vesting of stock options or bonuses such that the amount received by the Original Equityholders for the purpose of calculating the Return Multiple is net of the effects of such arrangements, and (b) only cash or marketable securities shall be taken into account in determining the amounts described in clause (x) of the first sentence of this paragraph (iv); provided, however, that if dividends, distributions or sale proceeds are not in the form of cash or marketable securities, the Committee shall take such returns into account when making its determination of whether the Performance-Vesting Tranche of the Option has become vested as it deems appropriate to achieve an equitable result.

 

A-4


[Form Used Through December 16, 2015 for Other Employees]

NON-QUALIFIED STOCK OPTION AWARD AGREEMENT

PURSUANT TO THE

J.A. COSMETICS HOLDINGS, INC. 2014 EQUITY INCENTIVE PLAN

*  *  *  *  *

Participant: [                    ]

Grant Date: [            ], 2014

Per Share Exercise Price: $[        ]

Number of Option Shares: [                ] (including the amount vesting solely upon an Early Liquidity Event)

*  *  *  *  *

THIS NON-QUALIFIED STOCK OPTION AWARD AGREEMENT (this “ Agreement ”), dated as of the Grant Date specified above, is entered into by and between J.A. Cosmetics Holdings, Inc., a Delaware corporation (the “ Company ”), and the Participant specified above, pursuant to the J.A. Cosmetics Holdings, Inc. 2014 Equity Incentive Plan, as in effect and as amended from time to time (the “ Plan ”), which is administered by the Committee; and

WHEREAS, it has been determined under the Plan that it would be in the best interests of the Company to grant the Stock Option provided for herein to the Participant.

NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth and for other good and valuable consideration, the parties hereto hereby mutually covenant and agree as follows:

1. Incorporation By Reference; Plan Document Receipt . This Agreement is subject in all respects to the terms and provisions of the Plan (including, without limitation, any amendments thereto adopted at any time and from time to time), all of which terms and provisions are made a part of and incorporated in this Agreement as if they were each expressly set forth herein. Any capitalized term not defined in this Agreement shall have the same meaning as is ascribed thereto in the Plan. The Participant hereby acknowledges receipt of a true copy of the Plan and that the Participant has read the Plan carefully and fully understands its content. In the event of any conflict between the terms of this Agreement and the terms of the Plan, the terms of the Plan shall control. No part of the Stock Option granted hereby is intended to qualify as an “incentive stock option” under Section 422 of the Code.

2. Grant of Option . The Company hereby grants to the Participant, as of the Grant Date specified above, a Stock Option (the “ Option ”) to acquire from the Company at the Per Share Exercise Price specified above, the aggregate number of shares of Common Stock specified above (the “ Option Shares ”). Except as otherwise provided by the Plan, the Participant agrees and understands that nothing contained in this Agreement provides, or is intended to provide, the Participant with any protection against potential future dilution of the Participant’s


interest in the Company for any reason. The Participant shall have no rights as a stockholder with respect to any shares of Common Stock covered by the Option unless and until the Participant has become the holder of record of such shares, and no adjustments shall be made for dividends in cash or other property, distributions or other rights in respect of any such shares, except as otherwise specifically provided for in the Plan or this Agreement.

3. Vesting and Exercise; Option Term .

(a) Vesting and Exercise . The Option shall become vested and exercisable in accordance with the provisions of Exhibit A hereto.

(b) Expiration . Unless earlier terminated in accordance with the terms and provisions of the Plan and/or this Agreement, all portions of the Option (whether vested or not vested) shall expire and shall no longer be exercisable after the expiration of ten (10) years from the Grant Date.

4. Termination . Subject to the terms of this Agreement, which shall supersede any provisions of the Plan to the contrary, the Option, to the extent vested at the time of the Participant’s Termination, shall remain exercisable as follows:

(a) General . Except as otherwise provided in Sections 4(b) and 4(c) hereof, in the event of the Participant’s Termination for any reason, the vested portion of the Option shall remain exercisable until the earlier of (i) ninety (90) days from the date of such Termination, and (ii) the expiration of the stated term of the Option pursuant to Section 3(b) hereof.

(b) Termination due to Death or Disability . In the event of the Participant’s Termination by reason of death or Disability, the vested portion of the Option shall remain exercisable until the earlier of (i) one (1) year from the date of such Termination, and (ii) the expiration of the stated term of the Option pursuant to Section 3(b) hereof.

(c) Termination for Cause . In the event of the Participant’s Termination for Cause or in the event of the Participant’s voluntary Termination after the occurrence of an event that would be grounds for a Termination for Cause, the Participant’s entire Option (whether or not vested) shall terminate and expire upon such Termination.

(d) Treatment of Unvested Options upon Termination . Subject to Section 2(c) of Exhibit A , any portion of the Option that is not vested as of the date of the Participant’s Termination for any reason shall terminate and expire as of the date of such Termination.

5. Method of Exercise and Payment . Subject to Section 12 hereof, to the extent that the Option has become vested and exercisable with respect to a number of shares of Common Stock as provided herein, the Option may thereafter be exercised by the Participant, in whole or in part, at any time or from time to time prior to the expiration of the Option as provided herein and in accordance with Sections 6.4(c) and 6.4(d) of the Plan, including, without limitation, by the filing of any written form of exercise notice as may be required by the Committee and payment in full of the Per Share Exercise Price specified above multiplied by the

 

2


number of shares of Common Stock underlying the portion of the Option exercised. If the shares underlying the portion of the Option exercised are not freely tradable by the Participant on a public securities exchange at the time of exercise, the Participant shall be entitled at his election to require the Company to withhold a number of Option Shares (determined based on the Fair Market Value of the Option Shares on the payment date as determined by the Committee) that would otherwise be issued upon exercise to satisfy the aggregate Per Share Exercise Price and applicable withholding taxes in respect of such exercise (based on minimum applicable statutory withholding rates, as determined on the date that the amount of tax to be withheld is determined).

6. Non-Transferability . The Option, and any rights and interests with respect thereto, including this Agreement, issued under this Agreement and the Plan shall not be sold, exchanged, transferred, assigned or otherwise disposed of in any way by the Participant (or any beneficiary of the Participant), other than by testamentary disposition by the Participant or the laws of descent and distribution. Notwithstanding the foregoing, the Committee may, in its sole discretion, permit the Option to be Transferred to a Family Member for no value, provided that such Transfer shall only be valid upon execution of a written instrument in form and substance acceptable to the Committee in its sole discretion evidencing such Transfer and the transferee’s acceptance thereof signed by the Participant and the transferee, and provided , further , that the Option may not be subsequently Transferred other than by will or by the laws of descent and distribution or to another Family Member (as permitted by the Committee in its sole discretion) in accordance with the terms of the Plan and this Agreement, and shall remain subject to the terms of the Plan and this Agreement.   Any attempt to sell, exchange, transfer, assign, pledge, encumber or otherwise dispose of or hypothecate in any way the Option, or the levy of any execution, attachment or similar legal process upon the Option, contrary to the terms and provisions of this Agreement and/or the Plan shall be null and void and without legal force or effect.

7. Stockholders Agreement and Other Requirements . As a condition to the issuance of shares of Common Stock upon exercise of the Option, to the extent required by the Committee, the Participant shall execute and deliver a joinder to the Stockholders Agreement (the “ Stockholders Agreement ”) and the Registration Rights Agreement (the “ Registration Rights Agreement ”), each entered into among the Company and its stockholders as of January 31, 2014 (in each case with such amendments or modifications approved in accordance with the terms of such agreement), and, to the extent required by the Board or Committee in their sole discretion, any transfer restriction policy applicable to employees of the Company that is adopted in the context of insider trading or similar laws. Such Stockholders Agreement, Registration Rights Agreement and other documentation shall apply to the shares of Common Stock acquired under the Plan and covered by such Stockholders Agreement, Registration Rights Agreement and other documentation. The Company may require, as a condition of exercise, the Participant to become a party to any other existing agreement related to the issuance or holding of shares of Common Stock; provided, however, that unless otherwise required by applicable law, no such agreement shall impair the rights of the Participant without the consent of the Participant.

8. Company Call Rights . Subject to the provisions of any document to which the Participant is required to become a party pursuant to Section 7 hereof, the Option shall be subject to the Company call rights set forth in Article XI of the Plan. To ensure that the Common Stock issuable upon exercise of the Option is not Transferred in contravention of the terms of the Plan

 

3


and this Agreement, and to ensure compliance with other provisions of the Plan and this Agreement, the Company may deposit the certificates (if any) evidencing the Common Stock to be issued upon the exercise of the Option with an escrow agent designated by the Company.

9. Restrictive Covenants .

(a) Non-Compete . The Participant agrees that during the Participant’s employment with the Company and its Subsidiaries and for one (1) year following the Termination thereof (the “ Restricted Period ”), the Participant shall not, anywhere in the areas where the Company or any of its Subsidiaries conducts business during such employment (the “ Restricted Territory ”), directly or indirectly, own, manage, operate, join, control or participate in the ownership, management, operation or control of, or be an officer or an employee of any business or organization that, directly or indirectly, develops, processes, packages, markets, promotes or sells color cosmetics or related services in the Restricted Territories (each, a “ Restricted Business ”). The foregoing shall not restrict the Participant from (a) owning up to 5% of any class of securities of any person engaged in a Restricted Business if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Exchange Act, as long as such securities are held solely as a passive investment and not with a view to influencing, controlling or directing the affairs of such person), or (b) following the Participant’s termination of employment, being an officer, director, employee, shareholder, consultant, contractor, partner, joint venturer, agent, equity owner or acting in another capacity of or for (i) a business that principally sells retail goods (such as Wal Mart) for which sales of products manufactured by a Restricted Business generate less than 10 percent of its revenue or (ii) a business entity that has multiple lines of business, some of which are not a Restricted Business, so long as the Participant’s services for such entity are restricted so that he will provide no services or other assistance in support of, and will not otherwise be involved with, any Restricted Business conducted by such entity (except that the Participant shall be permitted to serve in a management capacity with responsibility for multiple product lines so long as such responsibility does not cover product lines for which more than 10 percent of the collective revenues are generated by a Restricted Business).

(b) Non-Solicitation . The Participant agrees that during the Restricted Period, the Participant will not, directly or indirectly, for himself or on behalf of or in conjunction with any other person, (i) hire or attempt to hire any person that is an employee of the Company or any of its Subsidiaries within six (6) months prior to the date of Termination; provided, however, this Section 9(b) (including clause (ii) below) shall not be breached by a solicitation to the general public or through general advertising, and the Participant may solicit for employment any person who at the date of Termination had not been an employee of the Company or its Subsidiaries at any time within six (6) months preceding such date or whose employment with the Company or its Subsidiaries had terminated more than six (6) months prior to the Participant’s solicitation of such person or (ii) solicit, advise or encourage any person, firm, government agency or corporation to withdraw, curtail or cancel its business with the Company or its Subsidiaries.

(c) Non-Disparagement . During the Participant’s employment with the Company and its Subsidiaries and thereafter, the Participant agrees that he will not, at any time, make, directly or indirectly, any oral or written statements that are disparaging of the Company

 

4


or its Subsidiaries, any of their products or services, or any of their present or former officers, directors, stockholders or employees (or any of their respective Affiliates), and the Company shall instruct the Board and its executives not to disparage the Participant orally or in writing at any time; provided that either party may confer in confidence with its legal representatives and make truthful statements as required by law.

(d) Confidential Information . The Participant acknowledges and agrees that the customers, business connections, customer lists, procedures, operations, techniques and other aspects of and information about the business of the Company and its Subsidiaries (the “ Confidential Information ”) are established at great expense and protected as confidential information and provide the Company and its Subsidiaries with a substantial competitive advantage in conducting its business. The Participant further acknowledges and agrees that by virtue of his employment with the Company and its Subsidiaries, he has had access to and will have access to, and has been entrusted with and will be entrusted with Confidential Information, and that the Company and its Subsidiaries would suffer great loss and injury if the Participant would disclose this information or use it in a manner not specifically authorized by the Company. Therefore, the Participant agrees that during his employment with the Company and its Subsidiaries and at all times thereafter, he will not, directly or indirectly, either individually or as an employee, agent, partner, shareholder, owner trustee, beneficiary, co-venturer distributor, consultant or in any other capacity, use or disclose or cause to be used or disclosed any Confidential Information, unless and to the extent (i) that any such information becomes generally known to and available for use by the public other than as a result of the Participant’s acts or omissions, (ii) authorized in writing by the Board or compelled by legal process (provided that the Participant provides the Company with advance notice adequate to afford the Company reasonable opportunity to limit or prevent such disclosure), or (iii) use or disclosure is to an employee of the Company or a person to whom disclosure is reasonably necessary or appropriate in connection with the performance by the Participant of his duties as an employee or director of the Company and its Subsidiaries. The Participant shall deliver to the Company upon any Termination, or at any other time the Company may request, all memoranda, notes, plans, records, reports, computer tapes, printouts and software and other documents and data (and copies thereof) relating to the Confidential Information or Work Product (as defined below) which he may then possess or have under his control, provided that the Participant shall be entitled to retain his telephone, address and other contact directories subject to compliance with Sections 9(a) through 9(c) . The Participant acknowledges and agrees that all inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not patentable) that relate to the actual or anticipated business of the Company and its Subsidiaries and that are conceived, developed or made by the Participant while employed by the Company and its Subsidiaries and during work hours or by the use of the facilities or Confidential Information of the Company and its Subsidiaries (“ Work Product ”) belong to the Company and its Subsidiaries.

(e) Reasonableness of Covenants . In signing this Agreement, the Participant agrees and acknowledges that the potential harm to the Company and its Subsidiaries of the non-enforcement of this Section 9 outweighs any harm to the Participant of its enforcement by injunction or otherwise. The Participant hereby acknowledges that he or she has carefully read this Agreement with its legal counsel and has given careful consideration to the restraints imposed upon the Participant, and understands and acknowledges the significance and

 

5


consequences of this Agreement and is in full accord as to their necessity for the reasonable and proper protection of the Confidential Information. The Participant expressly acknowledges and agrees that each and every restriction imposed by this Agreement is reasonable with respect to subject matter, time period, geographical area and scope and such restrictions are necessary to protect the Company’s, its Subsidiaries’ and its Affiliates’ interest in, and value of, the Company, its Subsidiaries and its Affiliates (including, without limitation, the goodwill inherent therein). The Participant hereby represents and warrants to the Company that upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding obligation of the Participant, enforceable in accordance with its terms. The Participant understands and agrees that the restrictions and covenants contained in this Section 9 are in addition to, and not in lieu of, any non-competition, non-solicitation or other similar obligations contained in any other agreements between the Participant and the Company, its Subsidiaries or its Affiliates.

(f) Reformation . If it is determined by a court of competent jurisdiction in any state that any restriction in this Section 9 is excessive in duration or scope or is unreasonable or unenforceable under applicable law, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the maximum extent permitted by the laws of that state.

(g) Tolling . In the event of any violation of the provisions of this Section 9 , the Participant acknowledges and agrees that the post-termination restrictions contained in this Section 9 shall be extended by a period of time equal to the period of such violation, it being the intention of the parties hereto that the running of the applicable post-termination restriction period shall be tolled during any period of such violation.

(h) Survival . The obligations contained in this Section 9 hereof shall survive the termination of the Participant’s employment or other service with the Company and its Subsidiaries and the date on which the Participant no longer holds, directly or indirectly, any equity securities in the Company, and shall be fully enforceable thereafter in accordance with the terms hereof.

(i) Remedies . The Participant acknowledges and agrees that the Company’s remedies at law for a breach or threatened breach of any of the provisions of this Section 9 would be inadequate and, in recognition of this fact, the Participant agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond or other security, shall be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available, without the necessity of showing actual monetary damages.

10. Securities Representations . Upon the exercise of the Option prior to the registration of the Common Stock to be issued hereunder pursuant to the Securities Act or other applicable securities laws, the Participant shall be deemed to acknowledge and make the following representations and warranties and as otherwise may be requested by the Company for compliance with applicable laws, and any issuances of Common Stock by the Company hereunder shall be made in reliance upon the express representations and warranties of the Participant:

(a) The Participant is acquiring and will hold the Common Stock to be issued hereunder for investment for the Participant’s account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act or other applicable securities laws.

 

6


(b) The Participant has been advised that the shares of Common Stock to be issued hereunder have not been registered under the Securities Act or other applicable securities laws, on the ground that no distribution or public offering of such Common Stock is to be effected (it being understood, however, that such Common Stock is being issued and sold in reliance on an exemption from registration under the Securities Act), and that such Common Stock must be held indefinitely, unless it is subsequently registered under the applicable securities laws or the Participant obtains an opinion of counsel (in the form and substance satisfactory to the Company and its counsel) that registration is not required. In connection with the foregoing, the Company is relying in part on the Participant’s representations set forth in this Section 9 . The Participant further acknowledges and understands that the Company is under no obligation hereunder to register the Common Stock to be issued hereunder.

(c) The Participant is aware of the adoption of Rule 144 by the United States Securities and Exchange Commission under the Securities Act, which permits limited public resales of securities acquired in a non-public offering, subject to the satisfaction of certain conditions. The Participant acknowledges that the Participant is familiar with the conditions for resale set forth in Rule 144, and acknowledges and understands that the conditions for resale set forth in Rule 144 may not have been satisfied and that the Company has no plans to satisfy these conditions in the foreseeable future.

(d) The Participant will not Transfer the Common Stock deliverable upon exercise of the Option in violation of the Plan, this Agreement, the Securities Act (or the rules and regulations promulgated thereunder) or under any other applicable securities laws. The Participant agrees that the Participant will not dispose of the Common Stock to be issued hereunder unless and until the Participant has complied with all requirements of the Plan and this Agreement applicable to the disposition of such Common Stock.

(e) The Participant has been furnished with, and has had access to, such information as the Participant considers necessary or appropriate for deciding whether to invest in the Common Stock to be issued hereunder, and the Participant has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the issuance of such Common Stock.

(f) The Participant is aware that an investment in the Company is a speculative investment that has limited liquidity and is subject to the risk of complete loss. The Participant is able, without impairing the Participant’s financial condition, to hold the Common Stock to be issued hereunder for an indefinite period and to suffer a complete loss of the Participant’s investment in such Common Stock.

 

7


11. Governing Law . All questions concerning the construction, validity and interpretation of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the choice of law principles thereof.

12. Withholding of Tax . The Company shall have the power and the right to deduct or withhold, or require the Participant to remit to the Company, an amount sufficient to satisfy any federal, state, local and foreign taxes of any kind (including, but not limited to, the Participant’s FICA and SDI obligations) which the Company, in its sole discretion, deems necessary to be withheld or remitted to comply with the Code and/or any other applicable law, rule or regulation with respect to the Option and, if the Participant fails to do so, the Company may otherwise refuse to issue or transfer any Common Stock otherwise required to be issued pursuant to this Agreement. Any statutorily required minimum withholding obligation with regard to the Participant may be satisfied by reducing the amount of cash or Common Stock otherwise deliverable upon exercise of the Option.

13. Entire Agreement; Amendment . This Agreement, together with the Plan, the Stockholders Agreement and the Registration Rights Agreement, contain the entire agreement between the parties hereto with respect to the subject matter contained herein, and supersedes all prior agreements or prior understandings, whether written or oral, between the parties relating to such subject matter. The Committee shall have the right, in its sole discretion, to modify or amend this Agreement from time to time in accordance with and as provided in the Plan; provided , however , that, unless otherwise required by law, no amendment or modification shall impair the rights of the Participant without the consent of the Participant. This Agreement may also be modified or amended by a writing signed by both the Company and the Participant. The Company shall give written notice to the Participant of any such modification or amendment of this Agreement as soon as practicable after the adoption thereof.

14. Notices . Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, or received by certified mail, return receipt requested, or sent by reputable overnight courier service (charges prepaid) to the Company at the address set forth below to the Participant at such address as indicated by the Company’s records or at such address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party. Notices will be deemed to have been given hereunder (i) when delivered personally to the recipient, (ii) one (1) business day after being sent to the recipient by reputable overnight courier service (charges prepaid), (iii) upon machine-generated acknowledgment of receipt after transmittal by facsimile if so acknowledged to have been received before 5:00 p.m. on a business day at the location of receipt and otherwise on the next following business day, provided that such notice, demand or other communication is also deposited within 24 hours thereafter with a reputable overnight courier service (charges prepaid) for delivery to the same Person, (iv) upon transmittal by e-mail if transmitted before 5:00 p.m. (on a business day) in the time zone of the address (which address is determined in the preceding sentence) of the recipient and otherwise on the next following business day, or (iv) five (5) days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. The Company’s address is:

J.A. Cosmetics Holdings, Inc.

10 West 33 rd Street, Suite 802

New York, New York 10001

Attention: General Counsel

Fax:

Email: ###

 

8


with copies (which shall not constitute notice) to:

Kirkland & Ellis LLP

333 South Hope Street, 29th Floor

Los Angeles, California 90071

Attention:        ###

                         ###

Facsimile:       ###

Email:             ###

                         ###

15. No Right to Employment or Service . Any questions as to whether and when there has been Termination shall be determined in the sole discretion of the Committee. Nothing in this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries or its Affiliates to terminate the Participant’s employment or service at any time, for any reason and with or without Cause.

16. Transfer of Personal Data .   The Participant authorizes, agrees and unambiguously consents to the transmission by the Company (or any Subsidiary) of any personal data information related to the Option awarded under this Agreement solely for legitimate business purposes (including, without limitation, the administration of the Plan). This authorization and consent is freely given by the Participant. The Company shall take all reasonable steps necessary or appropriate to protect the confidentiality of such personal data information and comply with all laws applicable thereto.

17. Compliance with Laws . The issuance of the Option (and the Option Shares upon exercise of the Option) pursuant to this Agreement shall be subject to, and shall comply with, any applicable requirements of any foreign and U.S. federal and state securities laws, rules and regulations and any other law or regulation applicable thereto. The Company shall not be obligated to issue the Option or any of the Option Shares pursuant to this Agreement if any such issuance would violate any such requirements. As a condition to the issuance of the Option Shares upon exercise of the Option, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate to evidence compliance with any applicable law or regulation.

18. Section 409A . Notwithstanding anything herein or in the Plan to the contrary, the Option is intended to be exempt from the applicable requirements of Section 409A of the Code and shall be limited, construed and interpreted in accordance with such intent.

19. Binding Agreement; Assignment . This Agreement, including as provided in Section 6 hereof, shall inure to the benefit of, be binding upon, and be enforceable by the Company and its successors and assigns. The Participant shall not assign (except as otherwise expressly provided herein) any part of this Agreement without the prior express written consent of the Company.

 

9


20. Headings . The titles and headings of the various sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of this Agreement.

21. Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument.

22. Further Assurances . Each party hereto shall do and perform (or shall cause to be done and performed) all such further acts and shall execute and deliver all such other agreements, certificates, instruments and documents as either party hereto reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the Plan and the consummation of the transactions contemplated thereunder.

23. Severability . The invalidity or unenforceability of any provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of any provision of this Agreement in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law. Upon such determination that any provision hereunder, or the application of any such provision, is invalid, illegal, void or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the greatest extent possible. To the extent that the parties hereto cannot agree on a modification to this Agreement pursuant to the preceding sentence, it is the intention of the parties that the invalid, illegal, void or unenforceable provision of this Agreement may be modified or amended by the court to render it enforceable to the maximum extent permitted under applicable law.

24. Acquired Rights . The Participant acknowledges and agrees that: (a) the Company may terminate or amend the Plan at any time, subject to the provisions of the Plan; (b) the award of the Option made under this Agreement is completely independent of any other award or grant and is made at the sole discretion of the Company; (c) no past grants or awards (including, without limitation, the Option awarded hereunder) give the Participant any right to any grants or awards in the future whatsoever; and (d) any benefits granted under this Agreement are not part of the Participant’s ordinary salary, and shall not be considered as part of such salary in the event of severance, redundancy or resignation.

*        *        *         *        *        *

 

10


IN WITNESS WHEREOF , the parties hereto have executed this Agreement as of the date first written above.

 

J.A. COSMETICS HOLDINGS, INC.
By:  

 

Name:  

 

Title:  

 

PARTICIPANT

 

[                    ]

Signature Page to Non-Qualified Stock Option Award Agreement


EXHIBIT A

VESTING AND EXERCISE

1. Time Vesting .

(a) General . [                ] of the Option Shares subject to the Option shall vest and become exercisable as follows, provided that the Participant has not incurred a Termination prior to the applicable “Vesting Date” as defined below (the “ Time-Vesting Tranche ”):

 

Vesting Date 1

   Vested Percentage of Time-Vesting Tranche  

[            ], 2015

     20

[            ], 2016

     40

[            ], 2017

     60

[            ], 2018

     80

[            ], 2019

     100

There shall be no proportionate or partial vesting in the periods prior to each vesting date set forth above (each, a “ Vesting Date ”) and all vesting shall occur only on the appropriate Vesting Date, subject to the Participant’s continued service with the Company or any of its Subsidiaries or Affiliates on each applicable Vesting Date, subject to Section 1(b) of this Exhibit A . Upon expiration of the Option, the Time-Vesting Tranche of the Option shall be cancelled and no longer exercisable.

(b) Accelerated Vesting . The unvested portion of the Time-Vesting Tranche of the Option shall become fully and immediately vested and exercisable upon the first to occur of a Sale of the Company or a Public Offering (as such terms are defined in the Stockholders Agreement), so long as the Participant has not incurred a Termination prior thereto. If Participant’s employment is terminated due to Participant’s death or Disability, then the portion of the Time-Vesting Tranche which would have vested within twelve (12) months following the Termination date but for such Termination shall become fully and immediately vested and exercisable.

 

1   Subsequent anniversaries of the Measurement Date.

 

A-1


2. Performance Vesting .

(a) [                ] of the Option Shares subject to the Option (including the amount vesting solely upon an Early Liquidity Event) shall vest and become exercisable subject to meeting performance thresholds as follows; provided that the Participant has not incurred a Termination prior to meeting the applicable “Performance Threshold” as defined below (the “ Performance-Vesting Tranche ”):

 

Return Multiple (defined below)

  

1.0x

  

3.0x

  

4.3x

Aggregate Vested Portion of Performance-Vesting Tranche ( without an Early Liquidity Event, as defined below)

   0    [                ]

Option Shares

   [                ]

Option Shares

Aggregate Vested Portion of Performance-Vesting Tranche ( with an Early Liquidity Event, as defined below)

   0    [                ]

Option Shares

   [                ]

Option Shares

There shall be no proportionate or partial vesting prior to meeting any Performance Threshold set forth above, and all vesting shall occur only upon meeting the appropriate Performance Threshold, subject to the Participant’s continued service with the Company or any of its Subsidiaries or Affiliates upon meeting each applicable Performance Threshold, subject to Section 2(c) of this Exhibit A . Upon expiration of the Option, the Performance-Vesting Tranche of the Option shall be cancelled and no longer exercisable.

(b) Sale of the Company . The unvested portion of the Performance-Vesting Tranche of the Option shall be cancelled automatically, with no further action required by any Person and no consideration paid therefor, upon the occurrence of a Sale of the Company.

(c) Continued Vesting . In the event of a Termination of the Participant due to the Participant’s death or Disability the Participant shall remain eligible to vest in the Performance-Vesting Tranche which would have vested within six (6) months following the date of Termination but for such Termination.

3. Miscellaneous Provisions Applicable to Vesting .

(a) Escrow Holdbacks following a Sale of the Company . In connection with a Sale of the Company, if any portion of the transaction consideration to be received by equityholders of the Company is subject to any transaction escrow arrangement or indemnity holdback, a pro rata portion of the proceeds to be received by the Participant in respect of the Option or the shares of Common Stock to be issued upon exercise of the Option may be made subject to such transaction escrow arrangement or indemnity holdback on the same basis as the transaction consideration to be received by such equityholders is made subject to such transaction escrow arrangement or indemnity holdback (taking into account any applicable requirements under Section 409A of the Code).

(b) Termination of Unvested Option . Any portion of the Option that does not become vested and exercisable in accordance with the provisions of this Exhibit A shall be automatically forfeited and cancelled for no value without any consideration being paid therefor and otherwise without any further action of the Company whatsoever.

 

A-2


(c) Committee Authority . The Committee shall in good faith make all determinations necessary or appropriate to determine whether the Performance-Vesting Tranche of the Option has become vested. All computations shall be made on a pro forma basis taking into account the vesting and payment of any entitlements under outstanding incentive equity awards of the Company, such that, if the applicable performance goals are achieved, but, after the vesting and payment of any entitlements under outstanding incentive equity awards of the Company resulting from such achievement, such performance goals would no longer be achieved, then such vesting shall not take effect. The Committee’s determinations shall be final, binding and conclusive upon all parties, absent bad faith or manifest error.

(d) Committee Discretion to Accelerate Vesting . Notwithstanding the foregoing, the Committee may, in its sole discretion, provide for accelerated vesting of any portion of the Option at any time and for any reason.

(e) Definitions .

(i) “ Early Liquidity Event ” shall mean the achievement of a Return Multiple of 3.0 or greater as a result of a Sale of the Company that is consummated on or before January 31, 2016.

(ii) “ Measurement Date ” means [                    ]. 2

(iii) “ Original Equityholders ” shall mean the holders of equity interests of the Company as of January 31, 2014, together with their Permitted Transferees (as defined in the Stockholders Agreement).

(iv) “ Performance Threshold ” means the receipt by the Original Equityholders of a Return Multiple equal to 3.0 or 4.3, as the case may be, at any time following the Measurement Date; it being understood and agreed that if a particular Performance Threshold is met at any time and the Return Multiple subsequently decreases, there shall be no additional vesting in respect of the Performance-Vesting Tranche as a result of such Performance Threshold subsequently being met again.

(v) “ Return Multiple ” shall mean, as of the date of measurement, the quotient obtained by dividing (x) the aggregate amount of distributions, dividends and sale proceeds received, following the Measurement Date, by the Original Equityholders in respect of the equity securities of the Company held by them (whether in connection with a Sale of the Company or otherwise, and whether in cash or in publicly traded securities issued as consideration in a Sale of the Company or otherwise), by (y) the aggregate amount of capital contributions made by the Original Equityholders to the Company (including those capital contributions made on or prior to the Measurement Date). For purposes of calculating the amount described in clause (x) of the preceding sentence, (1) any amounts held in

 

 

2   For new hires, this will be the date of employment, and for existing employees, this will be the date of grant or January 31, 2014 (as determined by the Board or Compensation Committee).

 

A-3


indemnification escrow or holdback arrangements in a Sale of the Company shall be taken into account as if paid at the closing thereof, but not any other contingent amounts that may be payable subsequent to such closing, and (2) commencing on the date that is thirty (30) trading days after a Public Offering, the Original Equityholders shall be deemed to have received the average of the closing prices of a share over any period of ninety (90) consecutive trading days with respect to all of the shares of Common Stock (or any successor Company securities) then held by the Original Equityholders (plus any dividends, distributions and sale proceeds in accordance with the previous sentence). For the avoidance of doubt, (a) the Return Multiple shall be calculated after giving effect to any vesting of stock options or bonuses such that the amount received by the Original Equityholders for the purpose of calculating the Return Multiple is net of the effects of such arrangements, and (b) only cash or marketable securities shall be taken into account in determining the amounts described in clause (x) of the first sentence of this paragraph (iv); provided, however, that if dividends, distributions or sale proceeds are not in the form of cash or marketable securities, the Committee shall take such returns into account when making its determination of whether the Performance-Vesting Tranche of the Option has become vested as it deems appropriate to achieve an equitable result.

 

A-4

Exhibit 10.14

J.A. COSMETICS HOLDINGS, INC.

2014 PHANTOM EQUITY PLAN

 

Section 1. ESTABLISHMENT AND PURPOSE.

The purpose of this Plan is to promote the long-term growth and profitability of J.A. Cosmetics Holdings, Inc., a corporation under the laws of the State of Delaware (the “ Company ”), and its Subsidiaries by (i) providing certain present and future Employees, Directors and Consultants with incentives to maximize value and otherwise contribute to the success of the Company and its Subsidiaries and (ii) enabling the Company and its Subsidiaries to attract, retain and reward the best available persons for positions of responsibility. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in Section 10 .

 

Section 2. ELIGIBILITY.

Only Employees, Directors and Consultants shall be eligible for designation as Participants by the Committee.

 

Section 3. PHANTOM SHARES SUBJECT TO PLAN.

(a) Basic Limitation . The total number of Phantom Shares which may be issued under the Plan shall not exceed 60,000 phantom shares. No Phantom Shares shall be granted under the Plan after the Plan’s termination in accordance with Section 8 .

(b) Additional Phantom Shares . If any Phantom Shares are forfeited or cancelled for any reason, then the number of Phantom Shares forfeited or cancelled shall again be available for issuance under the Plan.

 

Section 4. TERMS AND CONDITIONS OF AWARDS.

(a) Phantom Shares Award Agreements . Each Phantom Share granted under the Plan shall be evidenced by a Phantom Shares Award Agreement between the Participant and the Company. Such Phantom Shares shall be subject to all applicable terms and conditions of the Plan and may be subject to any other terms and conditions that are not inconsistent with the Plan and that the Committee deems appropriate for inclusion in the applicable Phantom Shares Award Agreement. The provisions of the various Phantom Shares Award Agreements entered into under the Plan need not be identical.

(b) Payment for Phantom Shares Awards . Phantom Shares may be issued with or without charge to a Participant under the Plan as determined by the Committee.

(c) Settlement of Phantom Shares . The amount of any payment under the Plan will be calculated in good faith by the Committee and paid, less any applicable taxes and other withholdings, by check or wire transfer of immediately available funds or through normal payroll processing within sixty (60) days of the date any payment is owed. In either case, the amount of any payments under the Plan will be paid in RMB and will be paid by J.A. Cosmetics Trading (Shanghai) Co., Ltd. All payments under the Plan are final, and no Participant will have the right to challenge or otherwise to object to the Committee’s calculation of any payment hereunder.


(d) Vesting of Phantom Shares . All Phantom Shares granted to a Participant under the Plan shall initially be unvested and shall vest only upon the satisfaction of the vesting and other conditions specified in the applicable Phantom Shares Award Agreement. Notwithstanding anything contained herein to the contrary, no Phantom Shares issued to a Participant shall vest after the date on which such Participant ceases to be in the Service of the Company and its Subsidiaries for any reason.

(e) Termination of Service . If a Participant ceases to be in the Service of the Company and its Subsidiaries at any time prior to a Sale of the Company for any reason, then all Phantom Shares then held by such Participant automatically and without any action by any Participant shall be immediately forfeited and deemed canceled and no longer outstanding without any payment therefor.

(f) No Assignment or Transfer of Phantom Shares . Phantom Shares issued under the Plan shall not be subject to redemption other than as specifically provided in Section 4(c) and may not be sold, assigned, anticipated, garnished, optioned, pledged or made subject to any creditor’s process, gifted, conveyed, transferred or otherwise disposed of, except by operation of law or pursuant to the laws of descent and distribution. Any act in violation of this Section 4(f) shall be null and void ab initio .

(g) Creditors’ Rights . The Phantom Shares represent an unfunded and unsecured obligation of the Company, subject to the terms and conditions of the applicable Phantom Shares Award Agreement. Any right to receive a payment in respect of Phantom Shares hereunder is solely a contractual right and not a security for purposes of any federal or state securities laws, and a holder of Phantom Shares shall have no rights other than those of a general unsecured creditor under applicable state law.

 

Section 5. CHANGE IN CAPITALIZATION.

(a) Adjustments . In the event of a subdivision of the outstanding Common Stock, a declaration of a dividend or distribution payable in Common Stock, a combination or consolidation of the outstanding Common Stock (by reclassification or otherwise) into a lesser number of Common Stock, a recapitalization, a spin-off or a similar occurrence, the Committee may make such equitable adjustments as it deems appropriate in one or more of (i) the number of Phantom Shares available for future awards under the Plan and (ii) the number of Phantom Shares then outstanding and subject to binding Phantom Shares Award Agreements.

(b) No Participant Rights . Without limiting the generality of Section 6(b) , a Participant shall have no rights by reason of any issuance of equity interests by the Company or any of its Subsidiaries, any subdivision or consolidation of any equity interests by the Company or any of its Subsidiaries, the payment of any dividend or distribution or any other increase or decrease in the number of equity interests of the Company or any of its Subsidiaries.

 

Section 6. LIMITATIONS ON RIGHTS.

(a) No Retention Rights . Neither the Plan nor any Phantom Shares granted hereunder shall give (or be deemed to give) any Participant the right to remain an Employee, Director or Consultant of or otherwise in the Service of the Company or any of its Subsidiaries or other Affiliates or affect the right of the Company or any of its Subsidiaries or other Affiliates to terminate a Participant’s Service to the Company or any of its Subsidiaries or other Affiliates at any time for any reason.

 

- 2 -


(b) No Equityholder or Similar Rights . No Phantom Shares granted hereunder will be represented by any form of certificate or instrument other than this Plan and the applicable Phantom Shares Award Agreement. Participant will not have in respect of any Phantom Shares (i) any dividend or distribution rights, voting rights, liquidation rights, preemptive rights or other rights common to holders of equity interests of the Company or any of its Subsidiaries or (ii) any right to receive any equity interests of the Company or any of its Subsidiaries or any equity interests convertible into equity interests of the Company or any of its Subsidiaries.

(c) Forfeiture . Notwithstanding anything to the contrary contained herein or in any Phantom Shares Award Agreement, a Participant will not be entitled to receive (and hereby shall be deemed to have forfeited) any payment under the Plan if the Committee determines that such Participant has breached his or her obligations under (i) this Plan, (ii) any confidential information and invention assignment agreement between such Participant and the Company or any of its Subsidiaries or other Affiliates, (iii) any of the Company’s or any of its Subsidiaries’ policies or standards regarding employment practices (including, without limitation, nondiscrimination, sexual harassment and alcohol and drug-use policies) as in effect from time to time and (iv) any other contract between such Participant and the Company or any of its Subsidiaries or other Affiliates in any material respect.

(d) Limitation on Payments . Notwithstanding any provision in the Plan to the contrary, the Company shall not be required to make, and shall instead defer to the extent allowed by applicable law, any payment to a Participant if the making of such payment would result in a default or event of default under, or otherwise violate or be prohibited by, any loan or credit agreement or any similar agreement to which the Company, or any of its Subsidiaries or Affiliates, is a party. Subject to Section 4(e) , payment of amounts deferred pursuant to this Section 6(d) shall be made as soon as possible thereafter consistent with the foregoing.

 

Section 7. WITHHOLDING TAXES.

A Participant shall make arrangements satisfactory to the Company for the satisfaction of any withholding tax obligations that arise in connection with any payment received in settlement of his or her Phantom Shares, and the Company and its Subsidiaries shall not be required to make any cash payment under the Plan unless such obligations are satisfied. Notwithstanding anything to the contrary contained herein, the Company and its Subsidiaries will be entitled to deduct or withhold from any amounts owing to a Participant hereunder any withholding taxes, income taxes, excise taxes, employment taxes or other similar amounts imposed with respect to amounts payable hereunder. If, for any reason, the Company and its Subsidiaries do not withhold an amount in tax required to be paid in connection with any amounts payable hereunder, a Participant shall be required to complete the tax declaration and pay all required taxes to appropriate tax authorities in accordance with applicable laws.

 

Section 8. DURATION AND AMENDMENTS.

(a) Duration of the Plan . The Plan shall become effective on the date of its adoption by the Board. The Plan shall terminate on the date that is ten (10) years after the date of its adoption by the Board and may be terminated on any earlier date pursuant to Section 8(b) . No Phantom Shares may be granted after a Sale of the Company.

(b) Right to Amend or Terminate the Plan . The Board may amend or terminate the Plan and any outstanding Phantom Shares Award Agreement at any time and for any reason; provided that no such amendment of the Plan or any Phantom Shares Award Agreement which would adversely affect Participants holding outstanding Phantom Shares shall be made without

 

- 3 -


the prior written consent of the Participants so adversely effected who have been granted a majority of the Phantom Shares which have been theretofore issued and are then outstanding under the Plan.

 

Section 9. ADMINISTRATION.

(a) Authority of the Committee . The Plan shall be administered by the Committee. Subject to the terms of the Plan, the Committee shall have the authority, exercisable in its sole and absolute discretion, to make all determinations required under the Plan, including without limitation, selecting Participants who are to receive Phantom Shares under the Plan; and determining the number, vesting requirements and other features and conditions of such Phantom Shares (consistent with the terms of this Plan and the short-term deferral exception to Section 409A of the Code). The Committee shall have the authority, exercisable in its sole and absolute discretion, to interpret and construe the terms and conditions of the Plan, prescribe, amend and rescind rules and regulations pursuant to the Plan, make all other determinations necessary or advisable for administering the Plan (including but not limited to those where it is specifically referred to), and correct any defect, supply any omission or reconcile any inconsistency in the Plan in such manner and to such extent as it shall consider advisable to effectuate the purpose of the Plan. All such determinations by the Committee shall be final and binding on all persons absent manifest error. No member of the Committee shall be liable for any action or determination made in good faith in respect of the Plan. The Committee may adopt such rules or guidelines, as it deems appropriate to implement the Plan.

(b) Indemnification . Each member of the Committee shall be indemnified and held harmless by the Company (primarily and without regard to any other rights to indemnification that may be available to any such member) against and from (i) any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by him or her in connection with or resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which he or she may be involved by reason of any action taken or failure to act under the Plan or any Phantom Shares Award Agreement, and (ii) from any and all amounts paid by him or her in settlement thereof, with the approval of the Board, or paid by him or her in satisfaction of any judgment in any such claim, action, suit, or proceeding against him or her, provided he or she shall give the Company an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled by contract, as a matter of law, or otherwise, or under any power that the Company or any of its Subsidiaries may have to indemnify them or hold them harmless.

(c) Governing Law . All questions concerning the construction, validity and interpretation of the Plan will be governed by and construed in accordance with the domestic laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

 

Section 10. DEFINITIONS.

For the purposes of this Agreement, the following terms have the meanings set forth below:

Affiliate ” of any particular Person means any other Person controlling, controlled by or under common control with such particular Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, by contract or otherwise.

 

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Board ” means the Board of Directors of the Company.

Code ” means the Internal Revenue Code of 1986, as amended.

Committee ” means the Compensation Committee of the Board.

Common Stock ” means the common stock of the Company.

Company Shares ” means the outstanding Common Stock and any other equity securities of the Company from time to time outstanding.

Consultant ” means an individual who performs bona fide services to the Company or any of its Subsidiaries other than as an Employee or Director.

“Director” means a director of the Board or any board of directors or board of managers, as applicable, of any of the Subsidiaries.

Employee ” means any individual who is a common-law employee of the Company or any of its Subsidiaries.

Governmental Entity ” means the United States of America or any other nation, any state or other political subdivision thereof, or any entity exercising executive, legislative, judicial, regulatory or administrative functions of government or any agency or department or subdivision of any governmental authority, including the United States federal government or any state or local government.

Independent Third Party ” means any Person who immediately prior to the contemplated transaction is (i) not a TPG Member and (ii) not controlling, controlled by or under common control with any such TPG Member.

Insolvency Event ” means any of the Company or any of its Subsidiaries (i) having an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) making an assignment for the benefit of creditors, (iii) applying for, seeking, consenting to, or acquiescing in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or a material portion of its assets, (iv) instituting any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or failing to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) failing to contest in good faith any appointment of a receiver, trustee, examiner, liquidator or similar official for it or a material portion of its assets or (vi) having a proceeding described in clause (iv) being instituted against it and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 30 consecutive days.

Participant ” means an individual who has been designed by the Committee to receive Phantom Shares and has entered into a Phantom Shares Award Agreement in connection therewith.

“Per Share of Phantom Shares Proceeds” means, with respect to a Vested Phantom Share, the amount equal to (i) the fair market value (as determined in good faith by the Board or the

 

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Committee) of the amounts to be received by or distributable to a holder of a share of Common Stock in connection with a Sale of the Company (after taking in account the payment of any of the Phantom Shares under the Plan) less (ii) the Grant Date Value (as set forth in the Phantom Shares Award Agreement).

Person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, any other business entity, or a Governmental Entity.

“Phantom Shares” a bookkeeping entry representing the right to potentially receive a cash payment on the terms and subject to the conditions of the Plan and the applicable Phantom Shares Award Agreement with respect to a share of “Phantom Shares” issued hereunder and thereunder.

Phantom Shares Award Agreement ” means the written agreement described in Section 3 evidencing each award of Phantom Shares.

Plan ” means this J.A. Cosmetics Holdings, Inc. 2014 Phantom Equity Plan, as the same may be further amended, modified and/or waived from time to time in accordance with the terms hereof.

Public Offering ” means any sale, in an underwritten public offering registered under the Securities Act, of the Company’s (or any successor’s) equity securities.

Sale of the Company ” means a bona fide sale of the Company Shares or assets of the Company on an arm’s length basis to any Person (other than the Company, any Subsidiary of the Company, any TPG Member, or any Affiliate of any of the foregoing) pursuant to which such Person, together with its Affiliates, acquires, directly or indirectly, (i) a majority of the Company Shares or (ii) all or substantially all of the Company’s assets determined on a consolidated basis (in either case, whether by merger, consolidation, sale or Transfer of the Company Shares, license, sale or Transfer of the Company’s consolidated assets or otherwise). Notwithstanding the foregoing, with respect to any grant of Phantom Shares that is characterized as “nonqualified deferred compensation” within the meaning of Section 409A of the Code, an event shall not be considered to be a Sale of the Company under the Plan for purposes of payment of such grant of Phantom Shares unless such event is also a “change in ownership,” a “change in effective control” or a “change in the ownership of a substantial portion of the assets” of the Company within the meaning of Section 409A of the Code.

Section 409A of the Code ” means the nonqualified deferred compensation rules under Section 409A of the Code and any applicable treasury regulations and other official guidance thereunder.

Securities Act ” means the Securities Act of 1933, as amended, and applicable rules and regulations thereunder, and any successor to such statute, rules, or regulations. Any reference herein to a specific section, rule, or regulation of the Securities Act shall be deemed to include any corresponding provisions of future law.

Service ” means service as an Employee, Director or Consultant.

Subsidiary ” means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity (other than a corporation), a majority of membership, partnership or other similar ownership interest thereof or the

 

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power to elect or appoint a majority of the managers or governing body thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, and without limitation, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity (other than a corporation) if such Person or Persons shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or control the sole, or a majority of the, managing director(s), managing member(s), manager(s), board of managers or general partner of such limited liability company, partnership, association or other business entity.

Transfer ” means any sale, transfer, assignment, pledge, mortgage, exchange, hypothecation, grant of a security interest or other direct or indirect disposition or encumbrance of an interest whether with or without consideration, whether voluntarily or involuntarily or by operation of law) or the acts thereof. The terms “ Transferee ,” “ Transferred ,” and other forms of the word “ Transfer ” shall have correlative meanings.

TPG Members ” means (i) TPG Growth II, L.P., a Delaware limited partnership and (ii) TPG elf Holdings, L.P., a Delaware limited partnership and each permitted transferee of such Person.

Unvested Phantom Shares ” means any share of Phantom Shares which has not become Vested Phantom Shares.

Vested Phantom Share ” means a share of Phantom Shares that has become vested in accordance with Section 4(d) .

*    *    *    *    *

 

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Exhibit 10.15

J.A. COSMETICS HOLDINGS, INC.

2014 PHANTOM EQUITY PLAN

PHANTOM SHARES AWARD AGREEMENT

J.A. Cosmetics Holdings, Inc., a corporation organized under the laws of the State of Delaware (the “ Company ”), is pleased to advise you that you have been selected to participate in the J.A. Cosmetics Holdings, Inc. 2014 Phantom Equity Plan (the “ Plan ”) on the terms and subject to the conditions set forth in the Plan and this Phantom Shares Award Agreement (this “ Agreement ”). Capitalized terms used and not otherwise defined herein have the meanings set forth in the Plan.

 

Date of Grant:  

 

Number of Phantom Shares:          

 

Name of Participant:  

 

Grant Date Value:  

 

By signing this Agreement, you agree to all of the terms and conditions of this Agreement and the Plan. You are also acknowledging receipt of this Agreement and a copy of the Plan.

 

 

Participant’s Signature
Date:  

 

 

Acknowledged and Agreed:

J.A. COSMETICS HOLDINGS, INC.

By:

 

 

Name:

 

 

Title:

 

 


J.A. COSMETICS HOLDINGS, INC.

2014 PHANTOM EQUITY PLAN

PHANTOM SHARES AWARD AGREEMENT

 

The Plan    The text of the Plan is hereby incorporated by reference. You and the Company agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement and the Plan.
Phantom Shares    The Company hereby grants you the number of Phantom Shares, shown on the cover to this Agreement, on the terms and subject to the conditions set forth in this Agreement and the Plan.
Settlement of Phantom Shares   

Upon a Sale of the Company, you will be entitled to receive, in respect of each of your Vested Phantom Shares, a one-time cash payment in an amount equal to the Per Share of Phantom Shares Proceeds for such Vested Phantom Shares in connection with such Sale of the Company. Upon the consummation of a Sale of the Company, all of the Phantom Shares will terminate without any payment therefor except for any amounts owed by the Company with respect to any Vested Phantom Shares in connection with such Sale of the Company. In connection with any liquidation, dissolution or Insolvency Event of the Company, all of the Phantom Shares will terminate without any payment therefor.

 

The amount of any payment hereunder will be calculated in good faith by the Committee and paid, less any applicable taxes and other withholdings, by check or wire transfer of immediately available funds within sixty (60) days of the date any payment is owed. All payments under the Plan will be paid in RMB and will be paid by J.A. Cosmetics Trading (Shanghai) Co., Ltd., a wholly-owned subsidiary of the Company. All payments under the Plan are final, and you will not have the right to challenge or otherwise to object to the Committee’s calculation of any payment hereunder.

Vesting    All Phantom Shares granted to you hereunder shall vest immediately prior to a Sale of the Company, in each case if (and only if) such Participant remains continuously in the Service of the Company and its Subsidiaries from the date of grant through the date of a Sale of the Company. None of your Phantom Shares shall vest after the date on which you cease to be in the Service of the Company and its Subsidiaries for any reason.
Termination of Service    If you cease to be in the Service of the Company and its Subsidiaries at any time prior to a Sale of the Company for any reason, then all of your Phantom Shares automatically and without any action by you shall be immediately forfeited and deemed canceled and no longer outstanding without any payment therefor.
No Transfer    The Phantom Shares granted to you hereunder may not be sold, assigned, anticipated, garnished, optioned, pledged or made subject to any creditor’s

 

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   process, gifted, conveyed, transferred or otherwise disposed of, except by operation of law or pursuant to the laws of descent and distribution. Any act in violation of this prohibition shall be null and void ab initio .
Withholding Taxes    The Company and its Subsidiaries will be entitled to deduct or withhold from any amounts owing to you hereunder any withholding taxes, income taxes, excise taxes, employment taxes or other similar amounts imposed with respect to amounts payable hereunder. If, for any reason, the Company and its Subsidiaries do not withhold an amount in tax required to be paid in connection with any amounts payable hereunder, you shall be required to complete the tax declaration and pay all required taxes to appropriate tax authorities in accordance with applicable laws.
Compliance with Law    You understand that Chinese regulatory authorities have yet to determine if Chinese citizens shall be accorded full rights to hold securities, stock options or other incentive units of foreign privately-held or publicly-listed entities outside China. Accordingly, you agree that should any Governmental Entity in China materially restrict the rights or obligations of the Company and its Subsidiaries (including in relation to a Sale of the Company or a Public Offering of the Company) or your rights or obligations hereunder, in the sole opinion of the Committee, the Company shall be entitled to amend or terminate any term or provision of the Plan and this Agreement, as appropriate and necessary in the Committee’s sole discretion, so as to comply with such governmental or regulatory requirements. This right to amend or terminate includes but is not limited to the right to terminate your rights hereunder in full without obtaining your consent or the consent of any other person or entity, provided that the Committee, in good faith, determines that commercially reasonable efforts have been made to (i) achieve compliance with the terms of the Plan, and (ii) otherwise, make available to you aggregate economic consideration which is no less favorable (on a gross pre-tax basis) than otherwise available had the Plan been complied with.
No Retention Rights    This Agreement is not an employment agreement. Neither the Plan nor this Agreement shall give (or be deemed to give) you the right to remain an Employee, Director or Consultant of or otherwise in the Service of the Company or any of its Subsidiaries or other Affiliates or affect the right of the Company or any of its Subsidiaries or other Affiliates to terminate a Participant’s Service to the Company or any of its Subsidiaries or other Affiliates at any time for any reason.
Other Agreements    This Agreement and the Plan constitute the entire understanding between you and the Company regarding this grant of Phantom Shares. Any prior agreements, understandings or commitments are superseded.
Amendments    The Committee shall have the right, in its sole discretion, to modify or amend this Agreement from time to time in accordance with and as provided in the Plan; provided , however , that, unless otherwise required by law, no such amendment or waiver of this Agreement that would adversely affect you will be made without the prior written consent of the holders so adversely effected who have been granted a majority of the Phantom Shares which have been theretofore issued and are then outstanding under the Plan.

 

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Governing Law    All questions concerning the construction, validity and interpretation of this Agreement and the Plan will be governed by and construed in accordance with the domestic laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

 

Page 4 of 4

Exhibit 10.19

EXECUTION VERSION

EMPLOYMENT AGREEMENT

This Employment Agreement (this “ Agreement ”), is made and entered into on the 31st day of January, 2014, by and among J.A. Cosmetics US, Inc. (together with its successor, the “ Company ”), J.A. Cosmetics Holdings, Inc., the owner of all of the outstanding capital stock of the Company (together with its successor, “ Holdings ”) and Tarang Amin (“ Executive ”). This Agreement shall become effective as of the Effective Date (as hereinafter defined).

WHEREAS, the Company desires to employ Executive on the terms and conditions contained herein on January 31, 2014 (the “ Effective Date ”); and

WHEREAS, Executive desires to be employed by and render services to the Company upon and subject to the terms, conditions and other provisions set forth herein.

NOW THEREFORE, in consideration of the promises and mutual covenants and agreements contained herein, the adequacy of all of which consideration is hereby acknowledged, the parties hereby agree as follows:

 

  1. DEFINITIONS    

The following words and terms shall have the meanings set forth below for the purposes of this Agreement:

Board of Directors ” means the Board of Directors of Holdings.

Cause ” means (i) a breach by Executive of Executive’s obligations under Section 2.2 (other than as a result of physical or mental incapacity) which constitutes material nonperformance by Executive of his obligations and duties thereunder, which Executive has failed to remedy after the Board of Directors has given Executive written notice of, and at least 15 days to remedy, such breach, (ii) commission by Executive of an act of fraud, embezzlement, misappropriation, willful misconduct or breach of fiduciary duty against the Company (other than acts, such as making personal use of Company office supplies, as have only a de minimis effect on the Company), (iii) a material breach by Executive of Section 6 of this Agreement, (iv) Executive’s conviction, plea of no contest or nolo contendere, deferred adjudication or unadjudicated probation for any felony or any crime involving moral turpitude, (v) the failure of Executive to carry out, or comply with, in any material respect, any lawful directive of the Board of Directors (other than any such failure resulting from Executive’s physical or mental incapacity) which Executive has failed to remedy after the Board of Directors has given Executive written notice of, and at least 15 days to remedy, such failure, or (vi) Executive’s unlawful use (including being under the influence) or possession of illegal drugs. For purposes of the previous sentence, no act or failure to act on Executive’s part shall be deemed “willful” unless done, or omitted to be done, by Executive not in good faith and without reasonable belief that Executive’s action or omission was in the best interest of the Company.

Disability ” means Executive’s inability to perform, with or without reasonable accommodation, the essential functions of his position hereunder for a period of 180 consecutive days due to mental or physical incapacity, as determined by mutual agreement of a physician


selected by the Company or its insurers and a physician selected by Executive; provided, however, if the opinion of the Company’s physician and Executive’s physician conflict, the Company’s physician and Executive’s physician shall together agree upon a third physician, whose opinion shall be binding.; provided , however , that Executive shall not be considered to have a Disability unless it is also treated as a disability under the Company’s long-term disability policy.

Good Reason ” means: (1) a material default in the performance of the Company’s obligations under this Agreement; (2) a significant diminution of Executive’s responsibilities, duties or authority as President and Chief Executive Officer, or a material diminution of Executive’s base compensation, unless such diminution is mutually agreed between Executive and the Company; or (3) the relocation of Executive’s principal office, without his consent, to a location that is in excess of 50 miles from San Francisco (it being understood and agreed that Executive’s travel for business purposes shall not be considered such a relocation); provided, however, that Executive’s termination will not be for Good Reason unless (x) Executive has given the Company at least 30 days prior written notice of his intent to terminate his employment for Good Reason, which notice shall specify the facts and circumstances constituting Good Reason and be given within 90 days of the initial occurrence thereof, (y) the Company has not remedied such facts and circumstances constituting Good Reason within 30 days following the receipt of such notice, and (z) Executive terminates employment within 6 months following the expiration of such 30-day cure period.

Notice of Termination ” means a dated notice that (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated, (iii) specifies a Termination Date, except in the case of the Company’s termination of Executive’s employment for Cause, for which the Termination Date may be the date of the notice; provided , however , that Executive has been provided with any applicable cure period, and (iv) is given in the manner specified in Section 7.2 hereof. With the exception of termination of Executive’s employment due to Executive’s death, any purported termination of Executive’s employment by the Company for any reason, including without limitation for Cause or Disability, or by Executive for any reason, shall be communicated by a written “Notice of Termination” to the other party. The failure by the Company or Executive to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Cause or Good Reason, as applicable, shall not waive any right of the Company or Executive under this Agreement or preclude the Company or Executive from asserting such fact or circumstance in enforcing the Company’s or Executive’s rights under this Agreement.

Termination Date ” means (i) if Executive’s employment is terminated for Cause or Disability, the date specified in the Notice of Termination, (ii) in the case of termination of employment due to death, the date of Executive’s death, (iii) if either party elects not to extend the Term of this Agreement pursuant to Section 2.1, the close of business on the day immediately preceding the next scheduled Extension Date, or (iv) if Executive’s employment is terminated for any other reason, the date on which a Notice of Termination is given or as specified in such Notice.

 

2


  2. EMPLOYMENT

2.1 Agreement and Term. The Company hereby employs Executive as an employee of the Company, and Executive hereby accepts said employment and agrees to render such services to the Company, on the terms and conditions set forth in this Agreement. Unless terminated earlier as set forth herein, the term of employment under this Agreement shall commence on the Effective Date and shall end on the fifth anniversary thereof (the “ Term ”); provided , however , that commencing on the fifth anniversary of the Effective Date and on each anniversary thereafter (each an “ Extension Date ”), the Term shall be automatically extended for an additional one (1) year period, unless either party gives written notice that the Term shall not be so extended at least sixty (60) days prior to the next Extension Date.

2.2 Position and Duties.   Except as otherwise provided in this Agreement, during the Term of this Agreement, Executive shall serve as President and Chief Executive Officer and as a member of the Board of the Company and shall report directly to the Board of Directors. The Company shall propose that Executive be appointed or elected to the Board and, during the Term, the Company shall propose Executive for re-election to the Board. Executive shall perform duties, undertake the responsibilities, and exercise the authorities customarily performed, undertaken and exercised by persons situated in a similar capacity at a similar company. Executive shall carry out his duties and responsibilities at all times in compliance with the Company’s Manual of Corporate Authorities, as in effect from time to time, and in compliance with any other policies promulgated from time to time by the Company. Executive shall also perform such other duties, commensurate with his position, as reasonably requested by the Board of Directors. During the Term of this Agreement, Executive shall use his best efforts to serve the Company faithfully, diligently and competently and to the best of his ability, and to devote his full time business hours, energy, ability, attention and skill to the business of the Company; provided , however , that the foregoing is not intended to preclude Executive from noncompetitive activities, conducted outside normal business hours permitted under Section 2.3 hereof.

2.3 Outside Activities. It shall not be a violation of this Agreement for Executive to (i) deliver lectures or fulfill speaking engagements; (ii) manage personal investments; or (iii) subject to the prior consent of the Board of Directors (which consent shall not be unreasonably withheld), serve on industry trade, civic, or charitable boards or committees or on for-profit corporate boards of directors and advisory committees, as long as the activities set forth in (i) – (iii) (taken together or separately) do not materially interfere with the performance of Executive’s duties hereunder and are not in conflict or competitive with, or adverse to, the Company. Executive shall not, however, under any circumstances, provide services or advice in any capacity whatsoever for or on behalf of any entity that competes with or is competitive with the Company. The Board of Directors shall be deemed to have approved Executive’s board or committee roles with (1) The Alameda County Community Food Bank and (2) Students in Free Enterprise (SIFE). In addition, it shall not be violation of this Agreement for Executive to own any publicly-traded securities.

2.4 Location.  During the Term, Executive shall be based in the San Francisco Bay area.

 

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  3. COMPENSATION AND BENEFITS

3.1 Salary.   The Company shall compensate and pay Executive for his services at a rate equivalent to $475,000 per year, less payroll deductions and all required tax withholdings (“ Base Salary ”), which salary shall be payable in accordance with the Company’s customary payroll practices applicable to its executives, but no less frequently than monthly.

3.2 Bonus.  During the Term of this Agreement, Executive shall have the opportunity to earn annual performance bonuses based on performance criteria to be established by the Board of Directors after consultation with Executive. Executive shall be eligible to receive a target cash bonus of 100% of his Base Salary based upon the attainment of performance objectives established by the Board of Directors after consultation with Executive. Unless set forth otherwise herein, Executive must be actively employed with the Company through the end of the applicable fiscal year in order to receive any annual bonus payout pursuant to this subsection. Any bonus payable hereunder in respect of a fiscal year shall be paid at the same time annual bonuses are paid to other senior executives of the Company in respect of such fiscal year; but in any event within the fiscal year following the fiscal year of performance.

3.3 Employee Benefits. During the Term of this Agreement, to the extent eligible under the applicable plans or programs, Executive shall be entitled to participate in the employee benefits plans and programs made available to executive level employees of the Company generally, such as health, medical, dental and other insurance coverage and group retirement plans. The terms and conditions of Executive’s participation in any employee benefit plan or program shall be subject to the terms and conditions of such plan or program, as may be modified by the Company from time to time. Nothing in this Agreement shall preclude the Company from amending or terminating any employee benefit plan or program.

3.4 Co-Investment. On the Effective Date, Holdings will sell to certain trusts designated by Executive 740.0 shares of common stock and 9,992.600 shares of preferred stock (the “ Co-Investment Shares ”) for $10 million in the aggregate pursuant to the Subscription Agreement among such trusts and Holdings dated as of the Effective Date. The Co-Investment Shares will be subject to the Stockholders Agreement, dated as of the Effective Date, by and among Holdings and its stockholders, in the form attached hereto as Exhibit A (the “ Stockholders Agreement ”), and the Registration Rights Agreement, dated as of the Effective Date, by and among Holdings and its stockholders, in the form attached hereto as Exhibit B . Notwithstanding anything to the contrary within the Stockholders Agreement, so long as Executive qualifies as an “Eligible Stockholder” (as such term is defined in the Stockholders Agreement), the first sentence of Section 7C of the Stockholders Agreement shall not apply to Executive, and Executive shall retain the right to receive quarterly and annual financial statements pursuant to Section 7 of the Stockholders Agreement even if Executive ceases to be employed or engaged by, or serve as a director for, the Company or any of its Subsidiaries.

3.5 Grant of Options. Executive shall be granted under the 2014 Equity Incentive Plan of Holdings (the “ Equity Plan ”), on the Effective Date, options to purchase 1,298,970 shares of common stock of Holdings, representing 7% of the outstanding common stock of the Company on a fully diluted basis as of the date hereof (assuming the exercise and conversion of all outstanding convertible securities and issuance of all shares authorized under the Equity Plan

 

4


as of the date hereof) (the “ Options ”). Such grant shall be made pursuant to, and the terms of the Options shall be subject to, a stock option grant agreement between Executive and Holdings in the form attached as Exhibit C hereto. The Options will have a per-share exercise price equal to the fair market value of a share of common stock of Holdings on the Effective Date and a term of ten years from the date of grant.

3.6 Paid Leave.  Executive shall be entitled to four weeks of paid vacation leave each year, subject an annual accrual cap of 30 days. Executive shall also be entitled to all paid holidays to which executive level employees of the Company are entitled. Accrued unused vacation leave shall be paid in the event of a termination of employment.

 

  4. EXPENSES

4.1 Expenses. The Company shall reimburse Executive or otherwise provide for or pay for reasonable out-of-pocket expenses incurred by Executive in furtherance of or in connection with the business of the Company, including, but not limited to, travel and entertainment expenses commensurate with his duties hereunder (including attendance at industry conferences), subject to the Company’s policies as periodically reviewed by the Board of Directors and in effect from time to time, including without limitation such reasonable documentation and other limitations as may be established or required by the Company. Executive shall also be entitled to reimbursement of financial planning and tax preparation assistance in an amount not to exceed $20,000 per year.

 

  5. TERMINATION

5.1 Termination Due to Death or Disability. If Executive’s employment is terminated by reason of Executive’s death or Disability, Executive or his estate shall be entitled to receive: (a) Executive’s accrued Base Salary through the Termination Date; (b) an amount for reimbursement, paid within 60 days following submission by Executive (or if applicable, Executive’s estate) to the Company of appropriate supporting documentation for any unreimbursed business expenses properly incurred prior to the Termination Date by Executive pursuant to Section 4 and in accordance with Company policy; (c) any accrued and unpaid vacation pay, paid within 60 days of the Termination Date; and (d) such employee benefits, if any, to which Executive (or, if applicable, Executive’s estate) or his dependents may be entitled under the employee benefit plans or programs of the Company, paid in accordance with the terms of the applicable plans or programs (the amounts described in clauses (a) through (d) hereof being referred to as the “ Accrued Rights ”). In addition, Executive or his estate shall be entitled to receive (x) in a lump sum in cash within two and one-half months after the Termination Date (or such earlier date as required by applicable law), the amount of any annual bonus earned for any previously completed fiscal year in accordance with Section 3.2 that has not been paid (the “ Accrued Bonus ”); and (y) an amount equal to the product of (i) the fraction of the current fiscal year that has elapsed through the date of Executive’s termination and (ii) the Board-approved annual bonus payout for Executive for such fiscal year based on actual Company performance for such fiscal year measured following the completion thereof, payable at the time the annual bonus would have been paid to Executive had he remained employed through the end of the such fiscal year (the “ Pro-Rata Bonus ”).

 

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5.2 Termination by Executive without Good Reason and other than Disability or Death.  In the event Executive terminates his employment for any reason other than Good Reason, Disability or death, Executive shall be entitled to receive the Accrued Rights, but following the Termination Date, Executive shall have no further rights to any other compensation or benefits under this Agreement, including without limitation any severance or continuation of benefits or otherwise. 

5.3 Termination by the Company for Cause. In the event the Company terminates his employment for Cause, Executive shall be entitled to receive the Accrued Rights, but following the Termination Date, Executive shall have no further rights to any other compensation or benefits under this Agreement, including without limitation any severance or continuation of benefits or otherwise.

5.4 Termination by the Company Other Than for Death, Disability or Cause or by Executive for Good Reason. If Executive’s employment is terminated by the Company prior to the end of the Term for reasons other than death, Disability or Cause, or by Executive prior to the end of the Term for Good Reason, Executive shall be entitled to receive (a) an amount equal to two (2) times his Base Salary, payable on a monthly basis, for a period of twelve (12) months following the Termination Date; (b) for a period of eighteen (18) months following the Termination Date that Executive is eligible to elect and does elect to continue coverage for himself and his eligible dependents under the Company’s group health plans, as applicable, under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and/or Sections 601 through 608 of the Employee Retirement Income Security Act of 1974, as amended (collectively, “ COBRA ”), medical and dental coverage as required by COBRA and prompt reimbursement for the premium costs charged to Executive for such COBRA continuation coverage; provided, however, that (i) such COBRA coverage shall terminate if and to the extent Executive becomes eligible to receive medical and dental coverage from a subsequent employer (and any such eligibility shall be promptly reported to the Company by Executive) and (ii) the Company’s obligation to reimburse Executive for such premium costs shall cease if, upon the advice of legal counsel, the Company determines that it would reasonably be expected to be subject to any penalty, excise or other tax for providing discriminatory benefits; provided that, in such event, the Company shall implement reasonable comparable alternative payments or benefits to Executive that would avoid such penalty, excise tax or other tax; (c) the Accrued Bonus; (d) the Pro-Rata Bonus, provided that Executive has been employed for at least six (6) months of the fiscal year in which such termination occurs, and (e) the Accrued Rights; provided that the payments described in clauses (a), (b) and (d) shall be subject to Executive’s continued compliance with the provisions of Section 6 and of the release delivered under Section 5.9 .

5.5 Termination by Mutual Consent. Notwithstanding any of the foregoing provisions of this Section 5, if at any time during the course of this Agreement the parties by mutual consent decide to terminate Executive’s employment, they may do so by separate agreement setting forth the terms and conditions of such termination.

5.6 Termination by Non-Extension of Term. Notwithstanding anything herein to the contrary, in the event either party elects not to extend the Term of this Agreement pursuant to Section 2.1 hereto, Executive’s employment with the Company hereunder shall automatically terminate upon expiration of the Term of this Agreement on the Termination Date. In the event

 

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of such non-extension of the Term, unless Executive’s employment is earlier terminated otherwise pursuant to Section 5 hereof, Executive shall be entitled to receive the Accrued Rights and the Accrued Bonus. Following the Termination Date, Executive shall have no further rights to any other compensation or benefits under this Agreement, including without limitation any severance or continuation of benefits or otherwise.

5.7 Payment of Severance. Subject to Section 7.13, any severance payments pursuant to Section 5.4(a) hereof shall be paid commencing on the sixtieth (60 th ) day following the Termination Date (with a lump sum catch-up payment for any installments otherwise payable within sixty (60) days following the Termination Date) and in accordance with the Company’s standard payroll schedule and practices.

5.8 Release of Claims; Offsets.   As a condition to the receipt of any payments of benefits described hereunder subsequent to the termination of the employment of Executive (other than Accrued Rights), Executive shall be required to execute, and not subsequently revoke, within sixty (60) days following the termination of his employment a release in a form reasonably acceptable to the Company of all claims arising out of his employment or the termination thereof. Subject to the limitations of applicable wage laws, the Company’s obligations to pay the severance benefits hereunder shall be subject to set-off, counterclaim or recoupment of amounts owed by Executive to the Company or any of its affiliates, except to the extent that the severance benefits constitute “nonqualified deferred compensation” for purposes of Section 409A (as defined in Section 7.13) and such offset would result in the imposition of tax or other adverse tax consequences under Section 409A. In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not Executive obtains other employment.

5.9 Cooperation with Company after Termination of Employment.   Following termination of Executive’s employment for any reason, Executive shall reasonably cooperate with the Company in all matters relating to the winding up of his pending work on behalf of the Company including, but not limited to, any litigation in which the Company is involved and the orderly transfer of any such pending work to other employees of the Company as may be designated by the Company. The Company shall reasonably compensate Executive for services rendered pursuant to this Section 5.9 at a rate to be determined by the parties. In addition, the Company shall reimburse Executive for any reasonable out-of-pocket expenses he incurs in performing any work on behalf of the Company following the termination of his employment.

 

  6. NON-SOLICITATION & NON-COMPETITION

6.1 Non-Compete.   Executive agrees that during the Term and for one (1) year following the Termination Date (the “ Restricted Period ”), Executive shall not, anywhere in the areas where the Company conducts business during the Term (the “ Restricted Territory ”), directly or indirectly, own, manage, operate, join, control or participate in the ownership, management, operation or control of, or be an officer or an employee of any business or organization that, directly or indirectly, develops, processes, packages, markets, promotes or sells color cosmetics or related services in the Restricted Territories (each, a “ Restricted Business ”). The foregoing shall not restrict Executive from (a) owning up to 5% of any class of

 

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securities of any person engaged in a Restricted Business if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934, as amended, as long as such securities are held solely as a passive investment and not with a view to influencing, controlling or directing the affairs of such person), or (b) following Executive’s termination of employment, being an officer, director, employee, shareholder, consultant, contractor, partner, joint venturer, agent, equity owner or acting in another capacity of or for (i) a business that principally sells retail goods (such as Wal-Mart) for which sales of products manufactured by a Restricted Business generate less than 10 percent of its revenue or (ii) a business entity that has multiple lines of business, some of which are not a Restricted Business, so long as Executive’s services for such entity are restricted so that he will provide no services or other assistance in support of, and will not otherwise be involved with, any Restricted Business conducted by such entity (except that Executive shall be permitted to serve in a management capacity with responsibility for multiple product lines so long as such responsibility does not cover product lines for which more than 10 percent of the collective revenues are generated by a Restricted Business).

6.2 Non-Solicitation.  Executive agrees that during the Restricted Period, Executive will not, directly or indirectly, for himself or on behalf of or in conjunction with any other person, (i) hire or attempt to hire any person that is an employee of the Company or was within six (6) months prior to the Termination Date; provided , however , this Section 6.2 (including clause (ii) below) shall not be breached by a solicitation to the general public or through general advertising, and Executive may solicit for employment any person who at the Termination Date had not been an employee of the Company at any time within six (6) months preceding such date or whose employment with the Company had terminated more than six (6) months prior to Executive’s solicitation of such person or (ii) solicit, advise or encourage any person, firm, government agency or corporation to withdraw, curtail or cancel its business with the Company.

6.3 Non-Disparagement.  During the Term and thereafter, Executive agrees that he will not, at any time, make, directly or indirectly, any oral or written statements that are disparaging of the Company, its products or services, or any of its present or former officers, directors, stockholders or employees (or any of their respective Affiliates), and the Company shall instruct its Board and executives not to disparage Executive orally or in writing at any time; provided that either party may confer in confidence with its legal representatives and make truthful statements as required by law.

6.4 Reasonable Limitation and Severability. The parties agree that the above restrictions on competition are (i) reasonable given Executive’s role with the Company, and are necessary to protect the interests of the Company and (ii) completely severable and independent agreements supported by good and valuable consideration and, as such, shall survive the termination of this Agreement for any reason whatsoever. The parties further agree that any invalidity or unenforceability of any one or more of such restrictions on competition shall not render invalid or unenforceable any remaining restrictions on competition. Additionally, should a court of competent jurisdiction determine that the scope of any provision of this Section 6 is too broad to be enforced as written, the parties hereby authorize the court to reform the provision to such narrower scope as it determines to be reasonable and enforceable and the parties intend that the affected provision be enforced as so amended.

 

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6.5 Confidential Information.   Executive acknowledges and agrees that the customers, business connections, customer lists, procedures, operations, techniques and other aspects of and information about the business of the Company (the “ Confidential Information ”) are established at great expense and protected as confidential information and provide the Company with a substantial competitive advantage in conducting its business. Executive further acknowledges and agrees that by virtue of his employment with the Company, he has had access to and will have access to, and has been entrusted with and will be entrusted with Confidential Information, and that the Company would suffer great loss and injury if Executive would disclose this information or use it in a manner not specifically authorized by the Company. Therefore, Executive agrees that during the Term and at all times thereafter, he will not, directly or indirectly, either individually or as an employee, agent, partner, shareholder, owner trustee, beneficiary, co-venturer distributor, consultant or in any other capacity, use or disclose or cause to be used or disclosed any Confidential Information, unless and to the extent (i) that any such information becomes generally known to and available for use by the public other than as a result of Executive’s acts or omissions, (ii) authorized in writing by the Board of Directors or compelled by legal process (provided that Executive provides the Company with advance notice adequate to afford the Company reasonable opportunity to limit or prevent such disclosure), or (iii) use or disclosure is to an employee of the Company or a person to whom disclosure is reasonably necessary or appropriate in connection with the performance by Executive of his duties as an employee or director of the Company. Executive shall deliver to the Company at the termination of the Term, or at any other time the Company may request, all memoranda, notes, plans, records, reports, computer tapes, printouts and software and other documents and data (and copies thereof) relating to the Confidential Information or Work Product (as defined below) which he may then possess or have under his control, provided that Executive shall be entitled to retain his telephone, address and other contact directories subject to compliance with Sections 6.1 through 6.3. Executive acknowledges and agrees that all inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not patentable) that relate to the Company’s actual or anticipated business and that are conceived, developed or made by Executive while employed by the Company and during work hours or by the use of the facilities or Confidential Information of the Company (“ Work Product ”) belong to the Company.

 

  7. GENERAL PROVISIONS

7.1 Assignment.   The Company shall assign this Agreement and its rights and obligations hereunder in whole, but not in part, to any company or other entity with or into which the Company may hereafter merge or consolidate or to which the Company may transfer all or substantially all of its assets, and in any such case said company or other entity shall by operation of law or expressly in writing assume all obligations of the Company hereunder as fully as if it had been originally made a party hereto. Such assignment will not release the Company from any payment obligations hereunder. Executive may not assign or transfer this Agreement or any rights or obligations hereunder.

 

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7.2 Notice.  For the purposes of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when delivered or mailed by certified or registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth below:

 

To the Company:    TPG Growth
   345 California Street, Suite 3300
   San Francisco, California 94104
   Attn: ###
   Facsimile: ###
   Email: ###
To Executive:    Tarang Amin
   ###
   ###
   Facsimile: ###
   Email: ###

7.3 Amendment and Waiver. No provision of this Agreement may be amended or waived unless such amendment or waiver is in writing and signed by each of the parties hereto.

7.4 Non-Waiver of Breach. No failure by either party to declare a default due to any breach of any obligation under this Agreement by the other, nor failure by either party to act quickly with regard thereto, shall be considered to be a waiver of any such obligation, or of any future breach.

7.5 Severability. In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect.

7.6 Governing Law. To the extent not preempted by federal law, the validity and effect of this Agreement and the rights and obligations of the parties hereto shall be construed and determined in accordance with the law of California.

7.7 Arbitration.

(a) Except with respect to disputes and claims under Section 6 (which the parties hereto may pursue in any court of competent jurisdiction as specified herein and with respect to which each party shall bear the cost of its own attorneys’ fees and expenses, except to the extent otherwise required by applicable law), each party hereto agrees that arbitration, pursuant to the procedures set forth in the National Rules for the Resolution of Employment Disputes of the American Arbitration Association (“ AAA ”) as adopted and effective as of June 1, 1997 or such later version as may then be in effect) (the “ AAA Rules ”), shall be the sole and exclusive method for resolving any claim or dispute (“ Claim ”) arising out of or relating to the rights and obligations of the parties under this Agreement and the employment of Executive by the Company (including any Claim regarding employment discrimination, sexual harassment, termination and discharge), whether such Claim arose or the facts on which such Claim is based occurred prior to or after the execution and delivery of this Agreement.

(b) The parties hereto agree that (i) one arbitrator shall be appointed pursuant to the AAA Rules to conduct any such arbitration, (ii) all meetings of the parties and all hearings

 

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with respect to any such arbitration shall take place in Oakland, California and (iii) each party to the arbitration shall bear its own costs and expenses (including all attorneys’ fees and expenses, except to the extent otherwise required by applicable law) and all costs and expenses of the arbitration proceeding (such as filing fees, the arbitrator’s fees, hearing expenses, etc.) shall be borne equally by the parties hereto; provided, however, that the arbitrator shall, in the award, allocate all such costs and expenses against the party who did not prevail.

(c) In addition, the parties hereto agree that (i) the arbitrator shall have no authority to make any decision, judgment, ruling, finding, award or other determination that does not conform to the terms and conditions of this Agreement (as executed and delivered by the parties hereto), (ii) the arbitrator shall have no greater authority to award any relief than a court having proper jurisdiction and (iii) the arbitrator shall have no authority to commit an Error of Law (as defined below) in its decision, judgment, ruling, finding, award or other determination, and on appeal from or motion to vacate or confirm such decision, judgment, ruling, finding, award or other determination, a court having proper jurisdiction may vacate any such decision, judgment, ruling, finding, award or other determination to the extent containing an Error of Law. For purposes of this Agreement, an “ Error of Law ” means any decision, judgment, ruling, finding, award or other determination that is inconsistent with the laws governing this Agreement pursuant to Section 7.6. Any decision, judgment, ruling, finding, award or other determination of the arbitrator and any information disclosed in the course of any arbitration hereunder (collectively, the “ Arbitration Information ”) shall be kept confidential by the parties subject to Section 7.7(d), and any appeal from or motion to vacate or confirm such decision, judgment, ruling, finding, award or other determination shall be filed under seal if permitted by the court.

(d) In the event that any party or such party’s affiliates, associates or representatives is requested or required (by oral question or request for information or documents in any legal proceeding, interrogatory, subpoena, civil investigative demand, or similar process) to disclose any Arbitration Information (the “ Disclosing Party ”), such Disclosing Party shall notify the other party promptly of the request or requirement so that the other party may seek an appropriate protective order or waive compliance with the provisions of this Section 7.7. If, in the absence of a protective order or the receipt of a waiver hereunder, the Disclosing Party or any of its affiliates, associates or representatives believes in good faith, upon the advice of legal counsel, that it is compelled to disclose any such Arbitration Information, such Disclosing Party may disclose such portion of the Arbitration Information as it believes in good faith, upon the advice of legal counsel, it is required to disclose; provided that the Disclosing Party shall use reasonable efforts to obtain, at the request and expense of the other party, an order or other assurance that confidential treatment shall be accorded to such portion of the Arbitration Information required to be disclosed as the other party shall designate. Notwithstanding anything in this Section 7.7 to the contrary, the parties shall have no obligation to keep confidential any Arbitration Information that becomes generally known to and available for use by the public other than as a result of the disclosing party’s acts or omissions or the acts or omissions of such party’s affiliates, associates or representatives. The parties agree that, subject to the right of any party to appeal or move to vacate or confirm any decision, judgment, ruling, finding, award or other determination of an arbitration as provided in this Section 7.7, the decision, judgment, ruling, finding, award or other determination of any arbitration under the AAA Rules shall be final, conclusive and binding on all of the parties hereto; provided, however, nothing in this Section 7.7 shall prohibit any party hereto from instituting litigation to enforce any final decision, judgment, ruling, finding, award or other determination of the arbitration.

 

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7.8 Entire Agreement. This Agreement contains all of the terms agreed upon by the Company and Executive with respect to the subject matter hereof and supersedes all prior agreements, arrangements and communications between the parties dealing with such subject matter, whether oral or written.

7.9 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the transferees, successors and assigns of the Company, including any company with which the Company may merge or consolidate.

7.10 Headings. Numbers and titles to Sections hereof are for information purposes only and, where inconsistent with the text, are to be disregarded.

7.11 Counterparts. This Agreement may be executed in any number of counterparts, including by facsimile or other electronic transmission, each of which shall be deemed an original, but all of which when taken together, shall be and constitute one and the same instrument.

7.12 Specific Enforcement; Remedies. The provisions of Section 6 of this Agreement are to be specifically enforced if not performed according to their terms. Without limiting the generality of the foregoing, the parties acknowledge that the Company would be irreparably damaged and there would be no adequate remedy at law for Executive’s breach of Section 6 of this Agreement and further acknowledge that the Company may seek entry of a temporary restraining order or preliminary injunction, in addition to any other remedies available at law or in equity, to enforce the provisions thereof, without the Company being required to post a bond or other security therefor. In addition, in the event of a material violation by Executive of the provisions of Section 6, any severance being paid to Executive pursuant to this Agreement or otherwise shall immediately cease, and any severance previously paid to Executive shall be immediately repaid to the Company.

7.13 Taxes & IRC Section 409A Matters. The Company may withhold from any payment hereunder such state, federal or local income, employment or other taxes and other legally mandated withholdings as it reasonably deems appropriate. The Company makes no representation about the tax treatment or impact of any payment(s) hereunder. The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of the Code, as amended (“ Section 409A ”), to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and administered to be in compliance therewith. Notwithstanding anything herein to the contrary: (i) if at the time of Executive’s termination of employment with the Company, Executive is a “specified employee” as defined in Section 409A and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Executive) until the date that is six (6) months following Executive’s termination of employment with the Company (or

 

12


the earliest date as is permitted under Section 409A); (ii) if any other payments of money or other benefits due to Executive hereunder could cause the application of an accelerated or additional tax under Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner determined by the Company that does not cause such an accelerated or additional tax; (iii) to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, Executive shall not be considered to have terminated employment with the Company for purposes of this Agreement and no payment shall be due to Executive under this Agreement until Executive would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A; and (iv) each amount to be paid or benefit to be provided to Executive pursuant to this Agreement, which constitutes deferred compensation subject to Section 409A, shall be construed as a separate identified payment for purposes of Section 409A. To the extent required to avoid an accelerated or additional tax under Section 409A, amounts reimbursable to Executive under this Agreement shall be paid to Executive on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to Executive) during any one year may not affect amounts reimbursable or provided in any subsequent year, or be subject to liquidation or exchange for another benefit. Neither the Company nor any of its employees or representatives shall have any liability to Executive with respect to Section 409A.

7.14 Survival.   Except as otherwise expressly provided in this Agreement, all covenants, representations and warranties, express or implied, in addition to the provisions of Sections 6 and 7 of this Agreement, shall survive the termination of this Agreement.

7.15 Attorneys’ Fees. The Company shall reimburse Executive for the reasonable, documented attorneys’ fees incurred by Executive in connection with the drafting, negotiation and execution of this Agreement and any related documents.

7.16 Indemnification and Insurance. The Company shall indemnify Executive to the full extent provided for in its corporate Bylaws and to the maximum extent that the Company indemnifies any of its other directors and senior executive officers, and he will be entitled to the protection of any insurance policies the Company may elect to maintain generally for the benefit of its directors and senior executive officers against all costs, charges, liabilities and expenses incurred or sustained by him in connection with any action, suit or proceeding to which he may be made a party by reason of his being or having been a director, officer or employee of the Company or any of its affiliates or his serving or having served any other enterprise, plan or trust as a director, officer, employee or fiduciary at the request of the Company or any of its affiliates (other than any dispute, claim or controversy arising under or relating to this Agreement (except for this Section 7.16)). The Company will enter into an indemnification agreement with Executive in the standard form that it has or will adopt for the benefit of its other directors and senior executive officers. The provisions of this Section 7.16 shall survive any termination of Executive’s employment or any termination of this Agreement.

7.17 Section 280G.  In the event that it shall be determined that any payment or distribution to or for the benefit of Executive under this Agreement or under any other Company plan, contract or agreement would, but for the effect of this Section 7.17, be subject to the excise

 

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tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (collectively, such excise tax, together with any such interest or penalties, the “ Excise Tax ”), then, at the election of Executive, in the event that the after-tax value of all Payments (as defined below) to Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to Executive of the Safe Harbor Amount (as defined below), (1) the cash portions of the Payments payable to Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value (as defined below) of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount, and (2) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to Executive under any other plans shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount, and (3) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement and otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount. As used herein, (x) “ Payment ” shall mean any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable pursuant to this Agreement or otherwise, (y) “ Safe Harbor Amount ” shall mean 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code, and (z) “ Parachute Value ” of a Payment shall mean the present value as of the date of the Change in Control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. All calculations under this section shall be made reasonably by the Company and the Company’s outside auditor at the Company’s expense and at the times reasonably requested by Executive.

[signatures on next page]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Employment Agreement to be duly executed on the date and year first written above.

 

J.A. COSMETICS US, INC.    
By:  

/s/ Frank Pisani

   

/s/ Tarang Amin

Name:   Frank Pisani     Tarang Amin
Title:   Chief Financial Officer    

[Signature Page - Employment Agreement]


J.A. COSMETICS HOLDINGS, INC.
By:  

/s/ Ronald Cami

Name:   Ronald Cami
Title:   Vice President

[Signature Page - Employment Agreement]

Exhibit 10.20

Execution Version

EMPLOYMENT AGREEMENT

This Employment Agreement (this “ Agreement ”), is made and entered into on the 13th day of August 2015, by and among J.A. Cosmetics US, Inc. (together with its successor, the “ Company ”), J.A. Cosmetics Holdings, Inc., the owner of all of the outstanding capital stock of the Company (together with its successor, “ Holdings ”), and John Bailey (“ Executive ”). This Agreement shall become effective as of the Effective Date (as hereinafter defined).

WHEREAS, the Company desires to employ Executive on the terms and conditions contained herein on August 17 , 2015 (the “ Effective Date ”); and

WHEREAS, Executive desires to be employed by and render services to the Company upon and subject to the terms, conditions and other provisions set forth herein.

NOW THEREFORE, in consideration of the promises and mutual covenants and agreements contained herein, the adequacy of all of which consideration is hereby acknowledged, the parties hereby agree as follows:

 

  1. DEFINITIONS

The following words and terms shall have the meanings set forth below for the purposes of this Agreement:

Board of Directors ” means the Board of Directors of Holdings.

Cause ” means (i) a breach by Executive of Executive’s obligations under Section 2.2 (other than as a result of physical or mental incapacity) which constitutes material nonperformance by Executive of his obligations and duties thereunder, which Executive has failed to remedy after the Board of Directors has given Executive written notice of, and at least fifteen (15) days to remedy, such breach, (ii) commission by Executive of an act of fraud, embezzlement, misappropriation, willful misconduct or breach of fiduciary duty against the Company (other than acts, such as making personal use of Company office supplies, as have only a de minimis effect on the Company), (iii) a material breach by Executive of Section 6 of this Agreement, (iv) Executive’s conviction, plea of no contest or nolo contendere, deferred adjudication or unadjudicated probation for any felony or any crime involving moral turpitude, (v) the failure of Executive to carry out, or comply with, in any material respect, any lawful directive of the Board of Directors (other than any such failure resulting from Executive’s physical or mental incapacity) which Executive has failed to remedy after the Board of Directors has given Executive written notice of, and at least fifteen (15) days to remedy, such failure, or (vi) Executive’s unlawful use (including being under the influence) or possession of illegal drugs. For purposes of the previous sentence, no act or failure to act on Executive’s part shall be deemed “willful” unless done, or omitted to be done, by Executive not in good faith and without reasonable belief that Executive’s action or omission was in the best interest of the Company.

Disability ” means Executive’s inability to perform, with or without reasonable accommodation, the essential functions of his position hereunder for a period of 180 consecutive

 

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days due to mental or physical incapacity, as determined by mutual agreement of a physician selected by the Company or its insurers and a physician selected by Executive; provided, however, if the opinion of the Company’s physician and Executive’s physician conflict, the Company’s physician and Executive’s physician shall together agree upon a third physician, whose opinion shall be binding.; provided , however , that Executive shall not be considered to have a Disability unless it is also treated as a disability under the Company’s long-term disability policy.

Good Reason ” means: (i) a material default in the performance of the Company’s obligations under this Agreement; (ii) a significant diminution of Executive’s responsibilities, duties or authority as President & Chief Financial Officer, or a material diminution of Executive’s base compensation, unless such diminution is mutually agreed between Executive and the Company; or (iii) the relocation of Executive’s principal office, without his consent, to a location that is in excess of fifty (50) miles from San Francisco (it being understood and agreed that Executive’s travel for business purposes shall not be considered such a relocation); provided, however, that Executive’s termination will not be for Good Reason unless (x) Executive has given the Company at least thirty (30) days prior written notice of his intent to terminate his employment for Good Reason, which notice shall specify the facts and circumstances constituting Good Reason and be given within ninety (90) days of the initial occurrence thereof, (y) the Company has not remedied such facts and circumstances constituting Good Reason within thirty (30) days following the receipt of such notice, and (z) Executive terminates employment within six months following the expiration of such thirty (30)-day cure period.

Notice of Termination ” means a dated notice that (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated, (iii) specifies a Termination Date, except in the case of the Company’s termination of Executive’s employment for Cause, for which the Termination Date may be the date of the notice; provided , however , that Executive has been provided with any applicable cure period, and (iv) is given in the manner specified in Section 7.2 hereof. With the exception of termination of Executive’s employment due to Executive’s death, any purported termination of Executive’s employment by the Company for any reason, including without limitation for Cause or Disability, or by Executive for any reason, shall be communicated by a written “Notice of Termination” to the other party. The failure by the Company or Executive to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Cause or Good Reason, as applicable, shall not waive any right of the Company or Executive under this Agreement or preclude the Company or Executive from asserting such fact or circumstance in enforcing the Company’s or Executive’s rights under this Agreement.

Termination Date ” means (i) if Executive’s employment is terminated for Cause or Disability, the date specified in the Notice of Termination, (ii) in the case of termination of employment due to death, the date of Executive’s death, (iii) if either party elects not to extend the Term of this Agreement pursuant to Section 2.1, the close of business on the day immediately preceding the next scheduled Extension Date, or (iv) if Executive’s employment is terminated for any other reason, the date on which a Notice of Termination is given or as specified in such Notice.

 

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  2. EMPLOYMENT

2.1 Agreement and Term . The Company hereby employs Executive as an employee of the Company, and Executive hereby accepts said employment and agrees to render such services to the Company, on the terms and conditions set forth in this Agreement. Unless terminated earlier as set forth herein, the term of employment under this Agreement shall commence on the Effective Date and shall end on the fifth anniversary thereof (the “ Term ”); provided , however , that commencing on the fifth anniversary of the Effective Date and on each anniversary thereafter (each an “ Extension Date ”), the Term shall be automatically extended for an additional one year period, unless either party gives written notice that the Term shall not be so extended at least sixty (60) days prior to the next Extension Date.

2.2 Position and Duties . Except as otherwise provided in this Agreement, during the Term of this Agreement, Executive shall serve as President & Chief Financial Officer and shall report directly to the Chief Executive Officer. Executive shall perform duties, undertake the responsibilities, and exercise the authorities customarily performed, undertaken and exercised by persons situated in a similar capacity at a similar company. Executive shall carry out his duties and responsibilities at all times in compliance with the Company’s Manual of Corporate Authorities, as in effect from time to time, and in compliance with any other policies promulgated from time to time by the Company. Executive shall also perform such other duties, commensurate with his position, as reasonably requested by the Board of Directors. During the Term of this Agreement, Executive shall use his best efforts to serve the Company faithfully, diligently and competently and to the best of his ability, and to devote his full time business hours, energy, ability, attention and skill to the business of the Company; provided , however , that the foregoing is not intended to preclude Executive from noncompetitive activities, conducted outside normal business hours permitted under Section 2.3 hereof.

2.3 Outside Activities . It shall not be a violation of this Agreement for Executive to (i) deliver lectures or fulfill speaking engagements; (ii) manage personal investments; (iii) subject to the prior consent of the Board of Directors (which consent shall not be unreasonably withheld), serve on industry trade, civic, or charitable boards or committees or on for-profit corporate boards of directors and advisory committees; (iv) serve as a Senior Advisor to TPG (including in such capacity as serving on boards of directors or managers as requested by TPG); or (v) continue his service on the Board of Directors of Angie’s Artisan Treats, LLC and Beautycounter, as long as the activities set forth in (i) - (v) (taken together or separately) do not materially interfere with the performance of Executive’s duties hereunder and are not in conflict or competitive with, or adverse to, the Company. Executive shall not, however, under any circumstances, provide services or advice in any capacity whatsoever for or on behalf of any entity that competes with or is competitive with the Company (it being acknowledged for purposes of this Section 2.3 that Executive serving as a director of Beautycounter or as a senior advisor to TPG shall not be deemed competitive). In addition, it shall not be violation of this Agreement for Executive to own any publicly-traded securities.

 

  3. COMPENSATION AND BENEFITS

3.1 Salary . The Company shall compensate and pay Executive for his services at a rate equivalent to $425,000 per year, less payroll deductions and all required tax withholdings (“ Base Salary ”), which salary shall be payable in accordance with the Company’s customary payroll practices applicable to its executives, but no less frequently than monthly.

 

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3.2 Bonus . During the Term of this Agreement, Executive shall have the opportunity to earn annual performance bonuses based on performance criteria to be established by the Board of Directors after consultation with Executive. Executive shall be eligible to receive a target cash bonus of 75% of his Base Salary based upon the attainment of performance objectives established by the Board of Directors after consultation with Executive. Unless set forth otherwise herein, Executive must be actively employed with the Company through the end of the applicable fiscal year in order to receive any annual bonus payout pursuant to this subsection. Any bonus payable hereunder in respect of a fiscal year shall be paid at the same time annual bonuses are paid to other senior executives of the Company in respect of such fiscal year; but in any event within the fiscal year following the fiscal year of performance. For the annual bonus payout pursuant to this section for the 2015 fiscal year, Executive shall be deemed to have been employed with the Company as of January 1, 2015.

3.3 Employee Benefits . During the Term of this Agreement, to the extent eligible under the applicable plans or programs, Executive shall be entitled to participate in the employee benefits plans and programs made available to executive level employees of the Company generally, such as health, medical, dental and other insurance coverage and group retirement plans. The terms and conditions of Executive’s participation in any employee benefit plan or program shall be subject to the terms and conditions of such plan or program, as may be modified by the Company from time to time. Nothing in this Agreement shall preclude the Company from amending or terminating any employee benefit plan or program.

3.4 Grant of Options . Subject to obtaining requisite corporate approvals, Executive shall be granted under the 2014 Equity Incentive Plan of Holdings (the “ Equity Plan ”) options to purchase 482,664 shares of common stock of Holdings (the “ Options ”). Such grant shall be made pursuant to, and the terms of the Options shall be subject to, a stock option grant agreement between Executive and Holdings substantially in the form attached as Exhibit A hereto. The Options will have a per-share exercise price equal to the fair market value of a share of common stock of Holdings on the date of grant and a term of ten years from the date of grant.

3.5 Paid Leave . Executive shall be entitled to four weeks of paid vacation leave each year, subject an annual accrual cap of thirty (30) days. Executive shall also be entitled to all paid holidays to which executive level employees of the Company are entitled. Accrued unused vacation leave shall be paid in the event of a termination of employment.

 

  4. EXPENSES

4.1 Expenses . The Company shall reimburse Executive or otherwise provide for or pay for reasonable out-of-pocket expenses incurred by Executive in furtherance of or in connection with the business of the Company, including, but not limited to, travel and entertainment expenses commensurate with his duties hereunder (including attendance at industry conferences), subject to the Company’s policies as periodically reviewed by the Board of Directors and in effect from time to time, including without limitation such reasonable documentation and other limitations as may be established or required by the Company.

 

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  5. TERMINATION

5.1 Termination Due to Death or Disability . If Executive’s employment is terminated by reason of Executive’s death or Disability, Executive or his estate shall be entitled to receive: (a) Executive’s accrued Base Salary through the Termination Date; (b) an amount for reimbursement, paid within sixty (60) days following submission by Executive (or if applicable, Executive’s estate) to the Company of appropriate supporting documentation for any unreimbursed business expenses properly incurred prior to the Termination Date by Executive pursuant to Section 4 and in accordance with Company policy; (c) any accrued and unpaid vacation pay, paid within sixty (60) days of the Termination Date; and (d) such employee benefits, if any, to which Executive (or, if applicable, Executive’s estate) or his dependents may be entitled under the employee benefit plans or programs of the Company, paid in accordance with the terms of the applicable plans or programs (the amounts described in clauses (a) through (d) hereof being referred to as the “ Accrued Rights ”). In addition, Executive or his estate shall be entitled to receive (x) in a lump sum in cash within two and one-half months after the Termination Date (or such earlier date as required by applicable law), the amount of any annual bonus earned for any previously completed fiscal year in accordance with Section 3.2 that has not been paid (the “ Accrued Bonus ”); and (y) an amount equal to the product of (i) the fraction of the current fiscal year that has elapsed through the date of Executive’s termination and (ii) the Board-approved annual bonus payout for Executive for such fiscal year based on actual Company performance for such fiscal year measured following the completion thereof, payable at the time the annual bonus would have been paid to Executive had he remained employed through the end of the such fiscal year (the “ Pro-Rata Bonus ”).

5.2 Termination by Executive without Good Reason and other than Disability or Death . In the event Executive terminates his employment for any reason other than Good Reason, Disability or death, Executive shall be entitled to receive the Accrued Rights, but following the Termination Date, Executive shall have no further rights to any other compensation or benefits under this Agreement, including without limitation any severance or continuation of benefits or otherwise.

5.3 Termination by the Company for Cause . In the event the Company terminates his employment for Cause, Executive shall be entitled to receive the Accrued Rights, but following the Termination Date, Executive shall have no further rights to any other compensation or benefits under this Agreement, including without limitation any severance or continuation of benefits or otherwise.

5.4 Termination by the Company Other Than for Death, Disability or Cause or by Executive for Good Reason . If Executive’s employment is terminated by the Company prior to the end of the Term for reasons other than death, Disability or Cause, or by Executive prior to the end of the Term for Good Reason, Executive shall be entitled to receive (a) an amount equal to his Base Salary, payable on a monthly basis, for a period of twelve (12) months following the Termination Date; (b) for a period of eighteen (18) months following the Termination Date that Executive is eligible to elect and does elect to continue coverage for himself and his eligible dependents under the Company’s group health plans, as applicable, under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and/or Sections 601 through 608 of the Employee Retirement Income Security Act of 1974, as amended

 

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(collectively, “ COBRA ”), medical and dental coverage as required by COBRA and prompt reimbursement for the premium costs charged to Executive for such COBRA continuation coverage; provided, however, that (i) such COBRA coverage shall terminate if and to the extent Executive becomes eligible to receive medical and dental coverage from a subsequent employer (and any such eligibility shall be promptly reported to the Company by Executive) and (ii) the Company’s obligation to reimburse Executive for such premium costs shall cease if, upon the advice of legal counsel, the Company determines that it would reasonably be expected to be subject to any penalty, excise or other tax for providing discriminatory benefits; provided that, in such event, the Company shall implement reasonable comparable alternative payments or benefits to Executive that would avoid such penalty, excise tax or other tax; (c) the Accrued Bonus; (d) the Pro-Rata Bonus, provided that Executive has been employed for at least six (6) months of the fiscal year in which such termination occurs, and (e) the Accrued Rights; provided that the payments described in clauses (a), (b) and (d) shall be subject to Executive’s continued compliance with the provisions of Section 6 and of the release delivered under Section 5.8.

5.5 Termination by Mutual Consent . Notwithstanding any of the foregoing provisions of this Section 5, if at any time during the course of this Agreement the parties by mutual consent decide to terminate Executive’s employment, they may do so by separate agreement setting forth the terms and conditions of such termination.

5.6 Termination by Non-Extension of Term . Notwithstanding anything herein to the contrary, in the event either party elects not to extend the Term of this Agreement pursuant to Section 2.1 hereto, Executive’s employment with the Company hereunder shall automatically terminate upon expiration of the Term of this Agreement on the Termination Date. In the event of such non-extension of the Term, unless Executive’s employment is earlier terminated otherwise pursuant to Section 5 hereof, Executive shall be entitled to receive the Accrued Rights and the Accrued Bonus. Following the Termination Date, Executive shall have no further rights to any other compensation or benefits under this Agreement, including without limitation any severance or continuation of benefits or otherwise.

5.7 Payment of Severance . Subject to Section 7.13, any severance payments pursuant to Section 5.4(a) hereof shall be paid commencing on the sixtieth (60th) day following the Termination Date (with a lump sum catch-up payment for any installments otherwise payable within sixty (60) days following the Termination Date) and in accordance with the Company’s standard payroll schedule and practices.

5.8 Release of Claims; Offsets . As a condition to the receipt of any payments of benefits described hereunder subsequent to the termination of the employment of Executive (other than Accrued Rights), Executive shall be required to execute, and not subsequently revoke, within sixty (60) days following the termination of his employment a release in a form reasonably acceptable to the Company of all claims arising out of his employment or the termination thereof. Subject to the limitations of applicable wage laws, the Company’s obligations to pay the severance benefits hereunder shall be subject to set-off, counterclaim or recoupment of amounts owed by Executive to the Company or any of its affiliates, except to the extent that the severance benefits constitute “nonqualified deferred compensation” for purposes of Section 409A (as defined in Section 7.13) and such offset would result in the imposition of tax or other adverse tax consequences under Section 409A. In no event shall Executive be obligated

 

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to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not Executive obtains other employment.

5.9 Cooperation with Company after Termination of Employment . Following termination of Executive’s employment for any reason, Executive shall reasonably cooperate with the Company in all matters relating to the winding up of his pending work on behalf of the Company including, but not limited to, any litigation in which the Company is involved and the orderly transfer of any such pending work to other employees of the Company as may be designated by the Company. The Company shall reasonably compensate Executive for services rendered pursuant to this Section 5.9 at a rate to be determined by the parties. In addition, the Company shall reimburse Executive for any reasonable out-of-pocket expenses he incurs in performing any work on behalf of the Company following the termination of his employment.

 

  6. NON-SOLICITATION & NON-COMPETITION

6.1 Non-Compete . Executive agrees that during the Term and for one year following the Termination Date (the “ Restricted Period ”), Executive shall not, anywhere in the areas where the Company conducts business during the Term (the “ Restricted Territory ”), directly or indirectly, own, manage, operate, join, control or participate in the ownership, management, operation or control of, or be an officer or an employee of any business or organization that, directly or indirectly, develops, processes, packages, markets, promotes or sells color cosmetics or related services in the Restricted Territories (each, a “ Restricted Business ”). The foregoing shall not restrict Executive from (a) owning up to 5% of any class of securities of any person engaged in a Restricted Business if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934, as amended, as long as such securities are held solely as a passive investment and not with a view to influencing, controlling or directing the affairs of such person), or (b) following Executive’s termination of employment, being an officer, director, employee, shareholder, consultant, contractor, partner, joint venturer, agent or acting in another capacity of or for (i) a business that principally sells retail goods (such as Wal-Mart) for which sales of products manufactured by a Restricted Business generate less than 10% of its revenue or (ii) a business entity that has multiple lines of business, some of which are not a Restricted Business, so long as Executive’s services for such entity are restricted so that he will provide no services or other assistance in support of, and will not otherwise be involved with, any Restricted Business conducted by such entity (except that Executive shall be permitted to serve in a management capacity with responsibility for multiple product lines so long as such responsibility does not cover product lines for which more than 10% of the collective revenues are generated by a Restricted Business). Notwithstanding the foregoing, this Section 6.1 shall not apply to any activities or services performed by Executive on behalf of TPG.

6.2 Non-Solicitation . Executive agrees that during the Restricted Period, Executive will not, directly or indirectly, for himself or on behalf of or in conjunction with any other person, (i) hire or attempt to hire any person that is an employee of the Company or was within six months prior to the Termination Date; provided , however , this Section 6.2 (including clause (ii) below) shall not be breached by a solicitation to the general public or through general

 

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advertising, and Executive may solicit for employment any person who at the Termination Date had not been an employee of the Company at any time within six months preceding such date or whose employment with the Company had terminated more than six months prior to Executive’s solicitation of such person or (ii) solicit, advise or encourage any person, firm, government agency or corporation to withdraw, curtail or cancel its business with the Company. Notwithstanding the foregoing, this Section 6.2 shall not apply to any activities or services performed by Executive on behalf of TPG.

6.3 Non-Disparagement . During the Term and thereafter, Executive agrees that he will not, at any time, make, directly or indirectly, any oral or written statements that are disparaging of the Company, its products or services, or any of its present or former officers, directors, stockholders or employees (or any of their respective Affiliates), and the Company shall instruct its Board and executives not to disparage Executive orally or in writing at any time; provided that either party may confer in confidence with its legal representatives and make truthful statements as required by law.

6.4 Reasonable Limitation and Severability . The parties agree that the above restrictions on competition are (i) reasonable given Executive’s role with the Company, and are necessary to protect the interests of the Company and (ii) completely severable and independent agreements supported by good and valuable consideration and, as such, shall survive the termination of this Agreement for any reason whatsoever. The parties further agree that any invalidity or unenforceability of any one or more of such restrictions on competition shall not render invalid or unenforceable any remaining restrictions on competition. Additionally, should a court of competent jurisdiction determine that the scope of any provision of this Section 6 is too broad to be enforced as written, the parties hereby authorize the court to reform the provision to such narrower scope as it determines to be reasonable and enforceable and the parties intend that the affected provision be enforced as so amended.

6.5 Confidential Information . Executive acknowledges and agrees that the customers, business connections, customer lists, procedures, operations, techniques and other aspects of and information about the business of the Company (the “ Confidential Information ”) are established at great expense and protected as confidential information and provide the Company with a substantial competitive advantage in conducting its business. Executive further acknowledges and agrees that by virtue of his employment with the Company, he has had access to and will have access to, and has been entrusted with and will be entrusted with Confidential Information, and that the Company would suffer great loss and injury if Executive would disclose this information or use it in a manner not specifically authorized by the Company. Therefore, Executive agrees that during the Term and at all times thereafter, he will not, directly or indirectly, either individually or as an employee, agent, partner, shareholder, owner trustee, beneficiary, co-venturer distributor, consultant or in any other capacity, use or disclose or cause to be used or disclosed any Confidential Information, unless and to the extent (i) that any such information becomes generally known to and available for use by the public other than as a result of Executive’s acts or omissions, (ii) authorized in writing by the Board of Directors or compelled by legal process (provided that Executive provides the Company with advance notice adequate to afford the Company reasonable opportunity to limit or prevent such disclosure), or (iii) use or disclosure is to an employee of the Company or a person to whom disclosure is reasonably necessary or appropriate in connection with the performance by Executive of his

 

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duties as an employee or director of the Company. Executive shall deliver to the Company at the termination of the Term, or at any other time the Company may request, all memoranda, notes, plans, records, reports, computer tapes, printouts and software and other documents and data (and copies thereof) relating to the Confidential Information or Work Product (as defined below) which he may then possess or have under his control, provided that Executive shall be entitled to retain his telephone, address and other contact directories subject to compliance with Sections 6.1 through 6.3. Executive acknowledges and agrees that all inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not patentable) that relate to the Company’s actual or anticipated business and that are conceived, developed or made by Executive while employed by the Company and during work hours or by the use of the facilities or Confidential Information of the Company (“ Work Product ”) belong to the Company.

 

  7. GENERAL PROVISIONS

7.1 Assignment . The Company shall assign this Agreement and its rights and obligations hereunder in whole, but not in part, to any company or other entity with or into which the Company may hereafter merge or consolidate or to which the Company may transfer all or substantially all of its assets, and in any such case said company or other entity shall by operation of law or expressly in writing assume all obligations of the Company hereunder as fully as if it had been originally made a party hereto. Such assignment will not release the Company from any payment obligations hereunder. Executive may not assign or transfer this Agreement or any rights or obligations hereunder.

7.2 Notice . For the purposes of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when delivered or mailed by certified or registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth below:

 

To the Company:    570 10th Street, 3rd Floor   
   Oakland, California 94607   
   Attn: General Counsel   
   Facsimile: ###   
   Email: ###   
To Executive:    John Bailey   
   ###   
   ###   
   Email: ###   

7.3 Amendment and Waiver . No provision of this Agreement may be amended or waived unless such amendment or waiver is in writing and signed by each of the parties hereto.

7.4 Non-Waiver of Breach . No failure by either party to declare a default due to any breach of any obligation under this Agreement by the other, nor failure by either party to act quickly with regard thereto, shall be considered to be a waiver of any such obligation, or of any future breach.

 

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7.5 Severability . In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect.

7.6 Governing Law . To the extent not preempted by federal law, the validity and effect of this Agreement and the rights and obligations of the parties hereto shall be construed and determined in accordance with the law of California.

7.7 Arbitration .

(a) Except with respect to disputes and claims under Section 6 (which the parties hereto may pursue in any court of competent jurisdiction as specified herein and with respect to which each party shall bear the cost of its own attorneys’ fees and expenses, except to the extent otherwise required by applicable law), each party hereto agrees that arbitration, pursuant to the procedures set forth in the National Rules for the Resolution of Employment Disputes of the American Arbitration Association (“ AAA ”) as adopted and effective as of June 1, 1997 or such later version as may then be in effect) (the “ AAA Rules ”), shall be the sole and exclusive method for resolving any claim or dispute (“ Claim ”) arising out of or relating to the rights and obligations of the parties under this Agreement and the employment of Executive by the Company (including any Claim regarding employment discrimination, sexual harassment, termination and discharge), whether such Claim arose or the facts on which such Claim is based occurred prior to or after the execution and delivery of this Agreement.

(b) The parties hereto agree that (i) one arbitrator shall be appointed pursuant to the AAA Rules to conduct any such arbitration, (ii) all meetings of the parties and all hearings with respect to any such arbitration shall take place in Oakland, California and (iii) each party to the arbitration shall bear its own costs and expenses (including all attorneys’ fees and expenses, except to the extent otherwise required by applicable law) and all costs and expenses of the arbitration proceeding (such as filing fees, the arbitrator’s fees, hearing expenses, etc.) shall be borne equally by the parties hereto; provided, however, that the arbitrator shall, in the award, allocate all such costs and expenses against the party who did not prevail.

(c) In addition, the parties hereto agree that (i) the arbitrator shall have no authority to make any decision, judgment, ruling, finding, award or other determination that does not conform to the terms and conditions of this Agreement (as executed and delivered by the parties hereto), (ii) the arbitrator shall have no greater authority to award any relief than a court having proper jurisdiction and (iii) the arbitrator shall have no authority to commit an Error of Law (as defined below) in its decision, judgment, ruling, finding, award or other determination, and on appeal from or motion to vacate or confirm such decision, judgment, ruling, finding, award or other determination, a court having proper jurisdiction may vacate any such decision, judgment, ruling, finding, award or other determination to the extent containing an Error of Law. For purposes of this Agreement, an “ Error of Law ” means any decision, judgment, ruling, finding, award or other determination that is inconsistent with the laws governing this Agreement pursuant to Section 7.6. Any decision, judgment, ruling, finding,

 

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award or other determination of the arbitrator and any information disclosed in the course of any arbitration hereunder (collectively, the “ Arbitration Information ”) shall be kept confidential by the parties subject to Section 7.7(d), and any appeal from or motion to vacate or confirm such decision, judgment, ruling, finding, award or other determination shall be filed under seal if permitted by the court.

(d) In the event that any party or such party’s affiliates, associates or representatives is requested or required (by oral question or request for information or documents in any legal proceeding, interrogatory, subpoena, civil investigative demand, or similar process) to disclose any Arbitration Information (the “ Disclosing Party ”), such Disclosing Party shall notify the other party promptly of the request or requirement so that the other party may seek an appropriate protective order or waive compliance with the provisions of this Section 7.7. If, in the absence of a protective order or the receipt of a waiver hereunder, the Disclosing Party or any of its affiliates, associates or representatives believes in good faith, upon the advice of legal counsel, that it is compelled to disclose any such Arbitration Information, such Disclosing Party may disclose such portion of the Arbitration Information as it believes in good faith, upon the advice of legal counsel, it is required to disclose; provided that the Disclosing Party shall use reasonable efforts to obtain, at the request and expense of the other party, an order or other assurance that confidential treatment shall be accorded to such portion of the Arbitration Information required to be disclosed as the other party shall designate. Notwithstanding anything in this Section 7.7 to the contrary, the parties shall have no obligation to keep confidential any Arbitration Information that becomes generally known to and available for use by the public other than as a result of the disclosing party’s acts or omissions or the acts or omissions of such party’s affiliates, associates or representatives. The parties agree that, subject to the right of any party to appeal or move to vacate or confirm any decision, judgment, ruling, finding, award or other determination of an arbitration as provided in this Section 7.7, the decision, judgment, ruling, finding, award or other determination of any arbitration under the AAA Rules shall be final, conclusive and binding on all of the parties hereto; provided, however, nothing in this Section 7.7 shall prohibit any party hereto from instituting litigation to enforce any final decision, judgment, ruling, finding, award or other determination of the arbitration.

7.8 Entire Agreement . This Agreement contains all of the terms agreed upon by the Company and Executive with respect to the subject matter hereof and supersedes all prior agreements, arrangements and communications between the parties dealing with such subject matter, whether oral or written.

7.9 Binding Effect . This Agreement shall be binding upon and shall inure to the benefit of the transferees, successors and assigns of the Company, including any company with which the Company may merge or consolidate.

7.10 Headings . Numbers and titles to Sections hereof are for information purposes only and, where inconsistent with the text, are to be disregarded.

7.11 Counterparts . This Agreement may be executed in any number of counterparts, including by facsimile or other electronic transmission, each of which shall be deemed an original, but all of which when taken together, shall be and constitute one and the same instrument.

 

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7.12 Specific Enforcement; Remedies . The provisions of Section 6 of this Agreement are to be specifically enforced if not performed according to their terms. Without limiting the generality of the foregoing, the parties acknowledge that the Company would be irreparably damaged and there would be no adequate remedy at law for Executive’s breach of Section 6 of this Agreement and further acknowledge that the Company may seek entry of a temporary restraining order or preliminary injunction, in addition to any other remedies available at law or in equity, to enforce the provisions thereof, without the Company being required to post a bond or other security therefor. In addition, in the event of a material violation by Executive of the provisions of Section 6, any severance being paid to Executive pursuant to this Agreement or otherwise shall immediately cease, and any severance previously paid to Executive shall be immediately repaid to the Company.

7.13 Taxes & IRC Section 409A Matters . The Company may withhold from any payment hereunder such state, federal or local income, employment or other taxes and other legally mandated withholdings as it reasonably deems appropriate. The Company makes no representation about the tax treatment or impact of any payment(s) hereunder. The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of the Code, as amended (“ Section 409A ”), to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and administered to be in compliance therewith. Notwithstanding anything herein to the contrary: (i) if at the time of Executive’s termination of employment with the Company, Executive is a “specified employee” as defined in Section 409A and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Executive) until the date that is six (6) months following Executive’s termination of employment with the Company (or the earliest date as is permitted under Section 409A); (ii) if any other payments of money or other benefits due to Executive hereunder could cause the application of an accelerated or additional tax under Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner determined by the Company that does not cause such an accelerated or additional tax; (iii) to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, Executive shall not be considered to have terminated employment with the Company for purposes of this Agreement and no payment shall be due to Executive under this Agreement until Executive would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A; and (iv) each amount to be paid or benefit to be provided to Executive pursuant to this Agreement, which constitutes deferred compensation subject to Section 409A, shall be construed as a separate identified payment for purposes of Section 409A. To the extent required to avoid an accelerated or additional tax under Section 409A, amounts reimbursable to Executive under this Agreement shall be paid to Executive on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to Executive) during any one year may not affect amounts reimbursable or provided in any subsequent year, or be subject to liquidation or exchange for another benefit. Neither the Company nor any of its employees or representatives shall have any liability to Executive with respect to Section 409A.

 

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7.14 Survival . Except as otherwise expressly provided in this Agreement, all covenants, representations and warranties, express or implied, in addition to the provisions of Sections 6 and 7 of this Agreement, shall survive the termination of this Agreement.

7.15 Indemnification and Insurance . The Company shall indemnify Executive to the full extent provided for in its corporate Bylaws and to the maximum extent that the Company indemnifies any of its other directors and senior executive officers, and he will be entitled to the protection of any insurance policies the Company may elect to maintain generally for the benefit of its directors and senior executive officers against all costs, charges, liabilities and expenses incurred or sustained by him in connection with any action, suit or proceeding to which he may be made a party by reason of his being or having been a director, officer or employee of the Company or any of its affiliates or his serving or having served any other enterprise, plan or trust as a director, officer, employee or fiduciary at the request of the Company or any of its affiliates (other than any dispute, claim or controversy arising under or relating to this Agreement (except for this Section 7.15)). The Company will enter into an indemnification agreement with Executive in the standard form that it has or will adopt for the benefit of its other directors and senior executive officers. The provisions of this Section 7.15 shall survive any termination of Executive’s employment or any termination of this Agreement.

7.16 Section 280G . In the event that it shall be determined that any payment or distribution to or for the benefit of Executive under this Agreement or under any other Company plan, contract or agreement would, but for the effect of this Section 7.16, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (collectively, such excise tax, together with any such interest or penalties, the “ Excise Tax ”), then, at the election of Executive, in the event that the after-tax value of all Payments (as defined below) to Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to Executive of the Safe Harbor Amount (as defined below), (1) the cash portions of the Payments payable to Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value (as defined below) of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount, and (2) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to Executive under any other plans shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount, and (3) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement and otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount. As used herein, (x) “ Payment ” shall mean any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable pursuant to this Agreement or otherwise, (y) “ Safe Harbor Amount ” shall mean 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code, and (z) “ Parachute Value ” of a Payment shall mean the present value as of the date of the Change in Control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code

 

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for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. All calculations under this section shall be made reasonably by the Company and the Company’s outside auditor at the Company’s expense and at the times reasonably requested by Executive.

[signatures on next page]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Employment Agreement to be duly executed on the date and year first written above.

 

J.A. COSMETICS US, INC.    
By:  

/s/ Tarang P. Amin

   

/s/ John Bailey

Name:  

Tarang P. Amin

    John Bailey
Title:  

CEO

   
J.A. COSMETICS HOLDINGS, INC.    
By:  

/s/ Tarang P. Amin

   
Name:  

Tarang P. Amin

   
Title:  

CEO

   

 

15

Exhibit 10.21

EXECUTION VERSION

EMPLOYMENT AGREEMENT

This Employment Agreement (this “ Agreement ”), is made and entered into on the 31st day of January, 2014, by and among J.A. Cosmetics US, Inc. (together with its successor, the “ Company ”), J.A. Cosmetics Holdings, Inc., the owner of all of the outstanding capital stock of the Company (together with its successor, “ Holdings ”), and Scott Milsten (“ Executive ”). This Agreement shall become effective as of the Effective Date (as hereinafter defined).

WHEREAS, the Company desires to employ Executive on the terms and conditions contained herein on January 31, 2014 (the “ Effective Date ”); and

WHEREAS, Executive desires to be employed by and render services to the Company upon and subject to the terms, conditions and other provisions set forth herein.

NOW THEREFORE, in consideration of the promises and mutual covenants and agreements contained herein, the adequacy of all of which consideration is hereby acknowledged, the parties hereby agree as follows:

 

  1. DEFINITIONS

The following words and terms shall have the meanings set forth below for the purposes of this Agreement:

Board of Directors ” means the Board of Directors of Holdings.

Cause ” means (i) a breach by Executive of Executive’s obligations under Section 2.2 (other than as a result of physical or mental incapacity) which constitutes material nonperformance by Executive of his obligations and duties thereunder, which Executive has failed to remedy after the Board of Directors has given Executive written notice of, and at least fifteen (15) days to remedy, such breach, (ii) commission by Executive of an act of fraud, embezzlement, misappropriation, willful misconduct or breach of fiduciary duty against the Company (other than acts, such as making personal use of Company office supplies, as have only a de minimis effect on the Company), (iii) a material breach by Executive of Section 6 of this Agreement, (iv) Executive’s conviction, plea of no contest or nolo contendere, deferred adjudication or unadjudicated probation for any felony or any crime involving moral turpitude, (v) the failure of Executive to carry out, or comply with, in any material respect, any lawful directive of the Board of Directors (other than any such failure resulting from Executive’s physical or mental incapacity) which Executive has failed to remedy after the Board of Directors has given Executive written notice of, and at least fifteen (15) days to remedy, such failure, or (vi) Executive’s unlawful use (including being under the influence) or possession of illegal drugs. For purposes of the previous sentence, no act or failure to act on Executive’s part shall be deemed “willful” unless done, or omitted to be done, by Executive not in good faith and without reasonable belief that Executive’s action or omission was in the best interest of the Company.

Disability ” means Executive’s inability to perform, with or without reasonable accommodation, the essential functions of his position hereunder for a period of 180 consecutive


days due to mental or physical incapacity, as determined by mutual agreement of a physician selected by the Company or its insurers and a physician selected by Executive; provided, however, if the opinion of the Company’s physician and Executive’s physician conflict, the Company’s physician and Executive’s physician shall together agree upon a third physician, whose opinion shall be binding.; provided , however , that Executive shall not be considered to have a Disability unless it is also treated as a disability under the Company’s long-term disability policy.

Good Reason ” means: (i) a material default in the performance of the Company’s obligations under this Agreement; (ii) a significant diminution of Executive’s responsibilities, duties or authority as General Counsel and Secretary, or a material diminution of Executive’s base compensation, unless such diminution is mutually agreed between Executive and the Company; or (iii) the relocation of Executive’s principal office, without his consent, to a location that is in excess of fifty (50) miles from San Francisco (it being understood and agreed that Executive’s travel for business purposes shall not be considered such a relocation); provided, however, that Executive’s termination will not be for Good Reason unless (x) Executive has given the Company at least thirty (30) days prior written notice of his intent to terminate his employment for Good Reason, which notice shall specify the facts and circumstances constituting Good Reason and be given within ninety (90) days of the initial occurrence thereof, (y) the Company has not remedied such facts and circumstances constituting Good Reason within thirty (30) days following the receipt of such notice, and (z) Executive terminates employment within six months following the expiration of such thirty (30)-day cure period.

Notice of Termination ” means a dated notice that (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated, (iii) specifies a Termination Date, except in the case of the Company’s termination of Executive’s employment for Cause, for which the Termination Date may be the date of the notice; provided , however , that Executive has been provided with any applicable cure period, and (iv) is given in the manner specified in Section 7.2 hereof. With the exception of termination of Executive’s employment due to Executive’s death, any purported termination of Executive’s employment by the Company for any reason, including without limitation for Cause or Disability, or by Executive for any reason, shall be communicated by a written “Notice of Termination” to the other party. The failure by the Company or Executive to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Cause or Good Reason, as applicable, shall not waive any right of the Company or Executive under this Agreement or preclude the Company or Executive from asserting such fact or circumstance in enforcing the Company’s or Executive’s rights under this Agreement.

Termination Date ” means (i) if Executive’s employment is terminated for Cause or Disability, the date specified in the Notice of Termination, (ii) in the case of termination of employment due to death, the date of Executive’s death, (iii) if either party elects not to extend the Term of this Agreement pursuant to Section 2.1, the close of business on the day immediately preceding the next scheduled Extension Date, or (iv) if Executive’s employment is terminated for any other reason, the date on which a Notice of Termination is given or as specified in such Notice.

 

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  2. EMPLOYMENT

2.1 Agreement and Term. The Company hereby employs Executive as an employee of the Company, and Executive hereby accepts said employment and agrees to render such services to the Company, on the terms and conditions set forth in this Agreement. Unless terminated earlier as set forth herein, the term of employment under this Agreement shall commence on the Effective Date and shall end on the fifth anniversary thereof (the “ Term ”); provided , however , that commencing on the fifth anniversary of the Effective Date and on each anniversary thereafter (each an “ Extension Date ”), the Term shall be automatically extended for an additional one year period, unless either party gives written notice that the Term shall not be so extended at least sixty (60) days prior to the next Extension Date.

2.2 Position and Duties. Except as otherwise provided in this Agreement, during the Term of this Agreement, Executive shall serve as General Counsel and Secretary and shall report directly to the Chief Executive Officer. Executive shall perform duties, undertake the responsibilities, and exercise the authorities customarily performed, undertaken and exercised by persons situated in a similar capacity at a similar company. Executive shall carry out his duties and responsibilities at all times in compliance with the Company’s Manual of Corporate Authorities, as in effect from time to time, and in compliance with any other policies promulgated from time to time by the Company. Executive shall also perform such other duties, commensurate with his position, as reasonably requested by the Board of Directors. During the Term of this Agreement, Executive shall use his best efforts to serve the Company faithfully, diligently and competently and to the best of his ability, and to devote his full time business hours, energy, ability, attention and skill to the business of the Company; provided , however , that the foregoing is not intended to preclude Executive from noncompetitive activities, conducted outside normal business hours permitted under Section 2.3 hereof.

2.3 Outside Activities. It shall not be a violation of this Agreement for Executive to (i) deliver lectures or fulfill speaking engagements; (ii) manage personal investments; or (iii) subject to the prior consent of the Board of Directors (which consent shall not be unreasonably withheld), serve on industry trade, civic, or charitable boards or committees or on for-profit corporate boards of directors and advisory committees, as long as the activities set forth in (i) – (iii) (taken together or separately) do not materially interfere with the performance of Executive’s duties hereunder and are not in conflict or competitive with, or adverse to, the Company. Executive shall not, however, under any circumstances, provide services or advice in any capacity whatsoever for or on behalf of any entity that competes with or is competitive with the Company.

2.4 Location. During the Term, Executive shall be based in the San Francisco Bay Area.

 

  3. COMPENSATION AND BENEFITS

3.1 Salary. The Company shall compensate and pay Executive for his services at a rate equivalent to $325,000 per year, less payroll deductions and all required tax withholdings (“ Base Salary ”), which salary shall be payable in accordance with the Company’s customary payroll practices applicable to its executives, but no less frequently than monthly.

 

3


3.2 Bonus. During the Term of this Agreement, Executive shall have the opportunity to earn annual performance bonuses based on performance criteria to be established by the Board of Directors after consultation with Executive. Executive shall be eligible to receive a target cash bonus of 40% of his Base Salary based upon the attainment of performance objectives established by the Board of Directors after consultation with Executive. Unless set forth otherwise herein, Executive must be actively employed with the Company through the end of the applicable fiscal year in order to receive any annual bonus payout pursuant to this subsection. Any bonus payable hereunder in respect of a fiscal year shall be paid at the same time annual bonuses are paid to other senior executives of the Company in respect of such fiscal year; but in any event within the fiscal year following the fiscal year of performance.

3.3 Employee Benefits. During the Term of this Agreement, to the extent eligible under the applicable plans or programs, Executive shall be entitled to participate in the employee benefits plans and programs made available to executive level employees of the Company generally, such as health, medical, dental and other insurance coverage and group retirement plans. The terms and conditions of Executive’s participation in any employee benefit plan or program shall be subject to the terms and conditions of such plan or program, as may be modified by the Company from time to time. Nothing in this Agreement shall preclude the Company from amending or terminating any employee benefit plan or program.

3.4 Co-Investment. On the Effective Date, Holdings will sell to a trust designated by Executive 48.1 shares of common stock and 649.519 shares of preferred stock (the “ Co-Investment Shares ”) for $650,000 in the aggregate pursuant to the Subscription Agreement between such trust and Holdings dated as of the Effective Date. The Co-Investment Shares will be subject to the Stockholders Agreement, dated as of the Effective Date, by and among Holdings and its stockholders, in the form attached hereto as Exhibit A (the “ Stockholders Agreement ”), and the Registration Rights Agreement, dated as of the Effective Date, by and among Holdings and its stockholders, in the form attached hereto as Exhibit B .

3.5 Grant of Options. Executive shall be granted under the 2014 Equity Incentive Plan of Holdings (the “ Equity Plan ”), on the Effective Date, options to purchase 134,550 shares of common stock of Holdings (the “ Options ”). Such grant shall be made pursuant to, and the terms of the Options shall be subject to, a stock option grant agreement between Executive and Holdings in the form attached as Exhibit C hereto. The Options will have a per-share exercise price equal to the fair market value of a share of common stock of Holdings on the Effective Date and a term of ten years from the date of grant.

3.6 Paid Leave. Executive shall be entitled to four weeks of paid vacation leave each year, subject an annual accrual cap of thirty (30) days. Executive shall also be entitled to all paid holidays to which executive level employees of the Company are entitled. Accrued unused vacation leave shall be paid in the event of a termination of employment.

 

  4. EXPENSES

4.1 Expenses. The Company shall reimburse Executive or otherwise provide for or pay for reasonable out-of-pocket expenses incurred by Executive in furtherance of or in connection with the business of the Company, including, but not limited to, travel and

 

4


entertainment expenses commensurate with his duties hereunder (including attendance at industry conferences), subject to the Company’s policies as periodically reviewed by the Board of Directors and in effect from time to time, including without limitation such reasonable documentation and other limitations as may be established or required by the Company.

 

  5. TERMINATION

5.1 Termination Due to Death or Disability. If Executive’s employment is terminated by reason of Executive’s death or Disability, Executive or his estate shall be entitled to receive: (a) Executive’s accrued Base Salary through the Termination Date; (b) an amount for reimbursement, paid within sixty (60) days following submission by Executive (or if applicable, Executive’s estate) to the Company of appropriate supporting documentation for any unreimbursed business expenses properly incurred prior to the Termination Date by Executive pursuant to Section 4 and in accordance with Company policy; (c) any accrued and unpaid vacation pay, paid within sixty (60) days of the Termination Date; and (d) such employee benefits, if any, to which Executive (or, if applicable, Executive’s estate) or his dependents may be entitled under the employee benefit plans or programs of the Company, paid in accordance with the terms of the applicable plans or programs (the amounts described in clauses (a) through (d) hereof being referred to as the “ Accrued Rights ”). In addition, Executive or his estate shall be entitled to receive (x) in a lump sum in cash within two and one-half months after the Termination Date (or such earlier date as required by applicable law), the amount of any annual bonus earned for any previously completed fiscal year in accordance with Section 3.2 that has not been paid (the “ Accrued Bonus ”); and (y) an amount equal to the product of (i) the fraction of the current fiscal year that has elapsed through the date of Executive’s termination and (ii) the Board-approved annual bonus payout for Executive for such fiscal year based on actual Company performance for such fiscal year measured following the completion thereof, payable at the time the annual bonus would have been paid to Executive had he remained employed through the end of the such fiscal year (the “ Pro-Rata Bonus ”).

5.2 Termination by Executive without Good Reason and other than Disability or Death. In the event Executive terminates his employment for any reason other than Good Reason, Disability or death, Executive shall be entitled to receive the Accrued Rights, but following the Termination Date, Executive shall have no further rights to any other compensation or benefits under this Agreement, including without limitation any severance or continuation of benefits or otherwise.

5.3 Termination by the Company for Cause. In the event the Company terminates his employment for Cause, Executive shall be entitled to receive the Accrued Rights, but following the Termination Date, Executive shall have no further rights to any other compensation or benefits under this Agreement, including without limitation any severance or continuation of benefits or otherwise.

5.4 Termination by the Company Other Than for Death, Disability or Cause or by Executive for Good Reason. If Executive’s employment is terminated by the Company prior to the end of the Term for reasons other than death, Disability or Cause, or by Executive prior to the end of the Term for Good Reason, Executive shall be entitled to receive (a) an amount equal to his Base Salary, payable on a monthly basis, for a period of twelve (12) months

 

5


following the Termination Date; (b) for a period of eighteen (18) months following the Termination Date that Executive is eligible to elect and does elect to continue coverage for himself and his eligible dependents under the Company’s group health plans, as applicable, under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and/or Sections 601 through 608 of the Employee Retirement Income Security Act of 1974, as amended (collectively, “ COBRA ”), medical and dental coverage as required by COBRA and prompt reimbursement for the premium costs charged to Executive for such COBRA continuation coverage; provided, however, that (i) such COBRA coverage shall terminate if and to the extent Executive becomes eligible to receive medical and dental coverage from a subsequent employer (and any such eligibility shall be promptly reported to the Company by Executive) and (ii) the Company’s obligation to reimburse Executive for such premium costs shall cease if, upon the advice of legal counsel, the Company determines that it would reasonably be expected to be subject to any penalty, excise or other tax for providing discriminatory benefits; provided that, in such event, the Company shall implement reasonable comparable alternative payments or benefits to Executive that would avoid such penalty, excise tax or other tax; (c) the Accrued Bonus; (d) the Pro-Rata Bonus, provided that Executive has been employed for at least six (6) months of the fiscal year in which such termination occurs, and (e) the Accrued Rights; provided that the payments described in clauses (a), (b) and (d) shall be subject to Executive’s continued compliance with the provisions of Section 6 and of the release delivered under Section 5.9.

5.5 Termination by Mutual Consent. Notwithstanding any of the foregoing provisions of this Section 5, if at any time during the course of this Agreement the parties by mutual consent decide to terminate Executive’s employment, they may do so by separate agreement setting forth the terms and conditions of such termination.

5.6 Termination by Non-Extension of Term. Notwithstanding anything herein to the contrary, in the event either party elects not to extend the Term of this Agreement pursuant to Section 2.1 hereto, Executive’s employment with the Company hereunder shall automatically terminate upon expiration of the Term of this Agreement on the Termination Date. In the event of such non-extension of the Term, unless Executive’s employment is earlier terminated otherwise pursuant to Section 5 hereof, Executive shall be entitled to receive the Accrued Rights and the Accrued Bonus. Following the Termination Date, Executive shall have no further rights to any other compensation or benefits under this Agreement, including without limitation any severance or continuation of benefits or otherwise.

5.7 Payment of Severance. Subject to Section 7.13, any severance payments pursuant to Section 5.4(a) hereof shall be paid commencing on the sixtieth (60th) day following the Termination Date (with a lump sum catch-up payment for any installments otherwise payable within sixty (60) days following the Termination Date) and in accordance with the Company’s standard payroll schedule and practices.

5.8 Release of Claims; Offsets. As a condition to the receipt of any payments of benefits described hereunder subsequent to the termination of the employment of Executive (other than Accrued Rights), Executive shall be required to execute, and not subsequently revoke, within sixty (60) days following the termination of his employment a release in a form reasonably acceptable to the Company of all claims arising out of his employment or the termination thereof. Subject to the limitations of applicable wage laws, the Company’s

 

6


obligations to pay the severance benefits hereunder shall be subject to set-off, counterclaim or recoupment of amounts owed by Executive to the Company or any of its affiliates, except to the extent that the severance benefits constitute “nonqualified deferred compensation” for purposes of Section 409A (as defined in Section 7.13) and such offset would result in the imposition of tax or other adverse tax consequences under Section 409A. In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not Executive obtains other employment.

5.9 Cooperation with Company after Termination of Employment. Following termination of Executive’s employment for any reason, Executive shall reasonably cooperate with the Company in all matters relating to the winding up of his pending work on behalf of the Company including, but not limited to, any litigation in which the Company is involved and the orderly transfer of any such pending work to other employees of the Company as may be designated by the Company. The Company shall reasonably compensate Executive for services rendered pursuant to this Section 5.9 at a rate to be determined by the parties. In addition, the Company shall reimburse Executive for any reasonable out-of-pocket expenses he incurs in performing any work on behalf of the Company following the termination of his employment.

 

  6. NON-SOLICITATION & NON-COMPETITION

6.1 Non-Compete. Executive agrees that during the Term and for one year following the Termination Date (the “ Restricted Period ”), Executive shall not, anywhere in the areas where the Company conducts business during the Term (the “ Restricted Territory ”), directly or indirectly, own, manage, operate, join, control or participate in the ownership, management, operation or control of, or be an officer or an employee of any business or organization that, directly or indirectly, develops, processes, packages, markets, promotes or sells color cosmetics or related services in the Restricted Territories (each, a “ Restricted Business ”). The foregoing shall not restrict Executive from (a) owning up to 5% of any class of securities of any person engaged in a Restricted Business if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934, as amended, as long as such securities are held solely as a passive investment and not with a view to influencing, controlling or directing the affairs of such person), or (b) following Executive’s termination of employment, being an officer, director, employee, shareholder, consultant, contractor, partner, joint venturer, agent, equity owner or acting in another capacity of or for (i) a business that principally sells retail goods (such as Wal-Mart) for which sales of products manufactured by a Restricted Business generate less than 10% of its revenue or (ii) a business entity that has multiple lines of business, some of which are not a Restricted Business, so long as Executive’s services for such entity are restricted so that he will provide no services or other assistance in support of, and will not otherwise be involved with, any Restricted Business conducted by such entity (except that Executive shall be permitted to serve in a management capacity with responsibility for multiple product lines so long as such responsibility does not cover product lines for which more than 10% of the collective revenues are generated by a Restricted Business).

6.2 Non-Solicitation. Executive agrees that during the Restricted Period, Executive will not, directly or indirectly, for himself or on behalf of or in conjunction with any

 

7


other person, (i) hire or attempt to hire any person that is an employee of the Company or was within six months prior to the Termination Date; provided , however , this Section 6.2 (including clause (ii) below) shall not be breached by a solicitation to the general public or through general advertising, and Executive may solicit for employment any person who at the Termination Date had not been an employee of the Company at any time within six months preceding such date or whose employment with the Company had terminated more than six months prior to Executive’s solicitation of such person or (ii) solicit, advise or encourage any person, firm, government agency or corporation to withdraw, curtail or cancel its business with the Company.

6.3 Non-Disparagement. During the Term and thereafter, Executive agrees that he will not, at any time, make, directly or indirectly, any oral or written statements that are disparaging of the Company, its products or services, or any of its present or former officers, directors, stockholders or employees (or any of their respective Affiliates), and the Company shall instruct its Board and executives not to disparage Executive orally or in writing at any time; provided that either party may confer in confidence with its legal representatives and make truthful statements as required by law.

6.4 Reasonable Limitation and Severability. The parties agree that the above restrictions on competition are (i) reasonable given Executive’s role with the Company, and are necessary to protect the interests of the Company and (ii) completely severable and independent agreements supported by good and valuable consideration and, as such, shall survive the termination of this Agreement for any reason whatsoever. The parties further agree that any invalidity or unenforceability of any one or more of such restrictions on competition shall not render invalid or unenforceable any remaining restrictions on competition. Additionally, should a court of competent jurisdiction determine that the scope of any provision of this Section 6 is too broad to be enforced as written, the parties hereby authorize the court to reform the provision to such narrower scope as it determines to be reasonable and enforceable and the parties intend that the affected provision be enforced as so amended.

6.5 Confidential Information. Executive acknowledges and agrees that the customers, business connections, customer lists, procedures, operations, techniques and other aspects of and information about the business of the Company (the “ Confidential Information ”) are established at great expense and protected as confidential information and provide the Company with a substantial competitive advantage in conducting its business. Executive further acknowledges and agrees that by virtue of his employment with the Company, he has had access to and will have access to, and has been entrusted with and will be entrusted with Confidential Information, and that the Company would suffer great loss and injury if Executive would disclose this information or use it in a manner not specifically authorized by the Company. Therefore, Executive agrees that during the Term and at all times thereafter, he will not, directly or indirectly, either individually or as an employee, agent, partner, shareholder, owner trustee, beneficiary, co-venturer distributor, consultant or in any other capacity, use or disclose or cause to be used or disclosed any Confidential Information, unless and to the extent (i) that any such information becomes generally known to and available for use by the public other than as a result of Executive’s acts or omissions, (ii) authorized in writing by the Board of Directors or compelled by legal process (provided that Executive provides the Company with advance notice adequate to afford the Company reasonable opportunity to limit or prevent such disclosure), or (iii) use or disclosure is to an employee of the Company or a person to whom

 

8


disclosure is reasonably necessary or appropriate in connection with the performance by Executive of his duties as an employee or director of the Company. Executive shall deliver to the Company at the termination of the Term, or at any other time the Company may request, all memoranda, notes, plans, records, reports, computer tapes, printouts and software and other documents and data (and copies thereof) relating to the Confidential Information or Work Product (as defined below) which he may then possess or have under his control, provided that Executive shall be entitled to retain his telephone, address and other contact directories subject to compliance with Sections 6.1 through 6.3. Executive acknowledges and agrees that all inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not patentable) that relate to the Company’s actual or anticipated business and that are conceived, developed or made by Executive while employed by the Company and during work hours or by the use of the facilities or Confidential Information of the Company (“ Work Product ”) belong to the Company.

 

  7. GENERAL PROVISIONS

7.1 Assignment. The Company shall assign this Agreement and its rights and obligations hereunder in whole, but not in part, to any company or other entity with or into which the Company may hereafter merge or consolidate or to which the Company may transfer all or substantially all of its assets, and in any such case said company or other entity shall by operation of law or expressly in writing assume all obligations of the Company hereunder as fully as if it had been originally made a party hereto. Such assignment will not release the Company from any payment obligations hereunder. Executive may not assign or transfer this Agreement or any rights or obligations hereunder.

7.2 Notice. For the purposes of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when delivered or mailed by certified or registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth below:

 

To the Company:    TPG Growth
   345 California Street, Suite 3300
   San Francisco, California 94104
   Attn: ###
   Facsimile: ###
   Email: ###
To Executive:    Scott Milsten
   ###
   ###
   ###

7.3 Amendment and Waiver. No provision of this Agreement may be amended or waived unless such amendment or waiver is in writing and signed by each of the parties hereto.

 

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7.4 Non-Waiver of Breach. No failure by either party to declare a default due to any breach of any obligation under this Agreement by the other, nor failure by either party to act quickly with regard thereto, shall be considered to be a waiver of any such obligation, or of any future breach.

7.5 Severability. In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect.

7.6 Governing Law. To the extent not preempted by federal law, the validity and effect of this Agreement and the rights and obligations of the parties hereto shall be construed and determined in accordance with the law of California.

7.7 Arbitration.

(a) Except with respect to disputes and claims under Section 6 (which the parties hereto may pursue in any court of competent jurisdiction as specified herein and with respect to which each party shall bear the cost of its own attorneys’ fees and expenses, except to the extent otherwise required by applicable law), each party hereto agrees that arbitration, pursuant to the procedures set forth in the National Rules for the Resolution of Employment Disputes of the American Arbitration Association (“ AAA ”) as adopted and effective as of June 1, 1997 or such later version as may then be in effect) (the “ AAA Rules ”), shall be the sole and exclusive method for resolving any claim or dispute (“ Claim ”) arising out of or relating to the rights and obligations of the parties under this Agreement and the employment of Executive by the Company (including any Claim regarding employment discrimination, sexual harassment, termination and discharge), whether such Claim arose or the facts on which such Claim is based occurred prior to or after the execution and delivery of this Agreement.

(b) The parties hereto agree that (i) one arbitrator shall be appointed pursuant to the AAA Rules to conduct any such arbitration, (ii) all meetings of the parties and all hearings with respect to any such arbitration shall take place in Oakland, California and (iii) each party to the arbitration shall bear its own costs and expenses (including all attorneys’ fees and expenses, except to the extent otherwise required by applicable law) and all costs and expenses of the arbitration proceeding (such as filing fees, the arbitrator’s fees, hearing expenses, etc.) shall be borne equally by the parties hereto; provided, however, that the arbitrator shall, in the award, allocate all such costs and expenses against the party who did not prevail.

(c) In addition, the parties hereto agree that (i) the arbitrator shall have no authority to make any decision, judgment, ruling, finding, award or other determination that does not conform to the terms and conditions of this Agreement (as executed and delivered by the parties hereto), (ii) the arbitrator shall have no greater authority to award any relief than a court having proper jurisdiction and (iii) the arbitrator shall have no authority to commit an Error of Law (as defined below) in its decision, judgment, ruling, finding, award or other determination, and on appeal from or motion to vacate or confirm such decision, judgment, ruling, finding, award or other determination, a court having proper jurisdiction may vacate any such decision, judgment, ruling, finding, award or other determination to the extent containing an Error of Law. For purposes of this Agreement, an “ Error of Law ” means any decision, judgment, ruling,

 

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finding, award or other determination that is inconsistent with the laws governing this Agreement pursuant to Section 7.6. Any decision, judgment, ruling, finding, award or other determination of the arbitrator and any information disclosed in the course of any arbitration hereunder (collectively, the “ Arbitration Information ”) shall be kept confidential by the parties subject to Section 7.7(d), and any appeal from or motion to vacate or confirm such decision, judgment, ruling, finding, award or other determination shall be filed under seal if permitted by the court.

(d) In the event that any party or such party’s affiliates, associates or representatives is requested or required (by oral question or request for information or documents in any legal proceeding, interrogatory, subpoena, civil investigative demand, or similar process) to disclose any Arbitration Information (the “ Disclosing Party ”), such Disclosing Party shall notify the other party promptly of the request or requirement so that the other party may seek an appropriate protective order or waive compliance with the provisions of this Section 7.7. If, in the absence of a protective order or the receipt of a waiver hereunder, the Disclosing Party or any of its affiliates, associates or representatives believes in good faith, upon the advice of legal counsel, that it is compelled to disclose any such Arbitration Information, such Disclosing Party may disclose such portion of the Arbitration Information as it believes in good faith, upon the advice of legal counsel, it is required to disclose; provided that the Disclosing Party shall use reasonable efforts to obtain, at the request and expense of the other party, an order or other assurance that confidential treatment shall be accorded to such portion of the Arbitration Information required to be disclosed as the other party shall designate. Notwithstanding anything in this Section 7.7 to the contrary, the parties shall have no obligation to keep confidential any Arbitration Information that becomes generally known to and available for use by the public other than as a result of the disclosing party’s acts or omissions or the acts or omissions of such party’s affiliates, associates or representatives. The parties agree that, subject to the right of any party to appeal or move to vacate or confirm any decision, judgment, ruling, finding, award or other determination of an arbitration as provided in this Section 7.7, the decision, judgment, ruling, finding, award or other determination of any arbitration under the AAA Rules shall be final, conclusive and binding on all of the parties hereto; provided, however, nothing in this Section 7.7 shall prohibit any party hereto from instituting litigation to enforce any final decision, judgment, ruling, finding, award or other determination of the arbitration.

7.8 Entire Agreement. This Agreement contains all of the terms agreed upon by the Company and Executive with respect to the subject matter hereof and supersedes all prior agreements, arrangements and communications between the parties dealing with such subject matter, whether oral or written.

7.9 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the transferees, successors and assigns of the Company, including any company with which the Company may merge or consolidate.

7.10 Headings. Numbers and titles to Sections hereof are for information purposes only and, where inconsistent with the text, are to be disregarded.

7.11 Counterparts. This Agreement may be executed in any number of counterparts, including by facsimile or other electronic transmission, each of which shall be deemed an original, but all of which when taken together, shall be and constitute one and the same instrument.

 

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7.12 Specific Enforcement; Remedies. The provisions of Section 6 of this Agreement are to be specifically enforced if not performed according to their terms. Without limiting the generality of the foregoing, the parties acknowledge that the Company would be irreparably damaged and there would be no adequate remedy at law for Executive’s breach of Section 6 of this Agreement and further acknowledge that the Company may seek entry of a temporary restraining order or preliminary injunction, in addition to any other remedies available at law or in equity, to enforce the provisions thereof, without the Company being required to post a bond or other security therefor. In addition, in the event of a material violation by Executive of the provisions of Section 6, any severance being paid to Executive pursuant to this Agreement or otherwise shall immediately cease, and any severance previously paid to Executive shall be immediately repaid to the Company.

7.13 Taxes & IRC Section 409A Matters. The Company may withhold from any payment hereunder such state, federal or local income, employment or other taxes and other legally mandated withholdings as it reasonably deems appropriate. The Company makes no representation about the tax treatment or impact of any payment(s) hereunder. The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of the Code, as amended (“ Section 409A ”), to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and administered to be in compliance therewith. Notwithstanding anything herein to the contrary: (i) if at the time of Executive’s termination of employment with the Company, Executive is a “specified employee” as defined in Section 409A and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Executive) until the date that is six (6) months following Executive’s termination of employment with the Company (or the earliest date as is permitted under Section 409A); (ii) if any other payments of money or other benefits due to Executive hereunder could cause the application of an accelerated or additional tax under Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner determined by the Company that does not cause such an accelerated or additional tax; (iii) to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, Executive shall not be considered to have terminated employment with the Company for purposes of this Agreement and no payment shall be due to Executive under this Agreement until Executive would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A; and (iv) each amount to be paid or benefit to be provided to Executive pursuant to this Agreement, which constitutes deferred compensation subject to Section 409A, shall be construed as a separate identified payment for purposes of Section 409A. To the extent required to avoid an accelerated or additional tax under Section 409A, amounts reimbursable to Executive under this Agreement shall be paid to Executive on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to Executive) during any one year may not affect

 

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amounts reimbursable or provided in any subsequent year, or be subject to liquidation or exchange for another benefit. Neither the Company nor any of its employees or representatives shall have any liability to Executive with respect to Section 409A.

7.14 Survival. Except as otherwise expressly provided in this Agreement, all covenants, representations and warranties, express or implied, in addition to the provisions of Sections 6 and 7 of this Agreement, shall survive the termination of this Agreement.

7.15 Indemnification and Insurance. The Company shall indemnify Executive to the full extent provided for in its corporate Bylaws and to the maximum extent that the Company indemnifies any of its other directors and senior executive officers, and he will be entitled to the protection of any insurance policies the Company may elect to maintain generally for the benefit of its directors and senior executive officers against all costs, charges, liabilities and expenses incurred or sustained by him in connection with any action, suit or proceeding to which he may be made a party by reason of his being or having been a director, officer or employee of the Company or any of its affiliates or his serving or having served any other enterprise, plan or trust as a director, officer, employee or fiduciary at the request of the Company or any of its affiliates (other than any dispute, claim or controversy arising under or relating to this Agreement (except for this Section 7.15)). The Company will enter into an indemnification agreement with Executive in the standard form that it has or will adopt for the benefit of its other directors and senior executive officers. The provisions of this Section 7.15 shall survive any termination of Executive’s employment or any termination of this Agreement.

7.16 Section 280G. In the event that it shall be determined that any payment or distribution to or for the benefit of Executive under this Agreement or under any other Company plan, contract or agreement would, but for the effect of this Section 7.16, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (collectively, such excise tax, together with any such interest or penalties, the Excise Tax ”), then, at the election of Executive, in the event that the after-tax value of all Payments (as defined below) to Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to Executive of the Safe Harbor Amount (as defined below), (1) the cash portions of the Payments payable to Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value (as defined below) of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount, and (2) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to Executive under any other plans shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount, and (3) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement and otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount. As used herein, (x) “ Payment ” shall mean any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable pursuant to this Agreement or otherwise, (y) “ Safe Harbor

 

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Amount ” shall mean 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code, and (z) “ Parachute Value ” of a Payment shall mean the present value as of the date of the Change in Control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. All calculations under this section shall be made reasonably by the Company and the Company’s outside auditor at the Company’s expense and at the times reasonably requested by Executive.

[signatures on next page]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Employment Agreement to be duly executed on the date and year first written above.

 

J.A. COSMETICS US, INC.
By:  

/s/ Frank Pisani

Name:   Frank Pisani
Title:   Chief Financial Officer

 

[Signature Page - Employment Agreement]


J.A. COSMETICS HOLDINGS, INC.
By:  

/s/ Ronald Cami

Name:   Ronald Cami
Title:   Vice President

 

[Signature Page - Employment Agreement]


/s/ Scott Milsten

Scott Milsten

 

[Signature Page - Employment Agreement]

Exhibit 10.22

EMPLOYMENT AGREEMENT

This Employment Agreement (this “ Agreement ”), is made and entered into on the 2nd day of February, 2014, by and among J.A. Cosmetics US, Inc. (together with its successor, the “ Company ”), J.A. Cosmetics Holdings, Inc., the owner of all of the outstanding capital stock of the Company (together with its successor, “ Holdings ”), and Richard F. Baruch Jr. (“ Executive ”). This Agreement shall become effective as of the Effective Date (as hereinafter defined).

WHEREAS, the Company desires to employ Executive on the terms and conditions contained herein on February 2, 2014 (the “ Effective Date ”); and

WHEREAS, Executive desires to be employed by and render services to the Company upon and subject to the terms, conditions and other provisions set forth herein.

NOW THEREFORE, in consideration of the promises and mutual covenants and agreements contained herein, the adequacy of all of which consideration is hereby acknowledged, the parties hereby agree as follows:

 

  1. DEFINITIONS

The following words and terms shall have the meanings set forth below for the purposes of this Agreement:

Board of Directors ” means the Board of Directors of Holdings.

Cause ” means (i) a breach by Executive of Executive’s obligations under Section 2.2 (other than as a result of physical or mental incapacity) which constitutes material nonperformance by Executive of his obligations and duties thereunder, which Executive has failed to remedy after the Board of Directors has given Executive written notice of, and at least fifteen (15) days to remedy, such breach, (ii) commission by Executive of an act of fraud, embezzlement, misappropriation, willful misconduct or breach of fiduciary duty against the Company (other than acts, such as making personal use of Company office supplies, as have only a de minimis effect on the Company), (iii) a material breach by Executive of Section 6 of this Agreement, (iv) Executive’s conviction, plea of no contest or nolo contendere, deferred adjudication or unadjudicated probation for any felony or any crime involving moral turpitude, (v) the failure of Executive to carry out, or comply with, in any material respect, any lawful directive of the Board of Directors (other than any such failure resulting from Executive’s physical or mental incapacity) which Executive has failed to remedy after the Board of Directors has given Executive written notice of, and at least fifteen (15) days to remedy, such failure, or (vi) Executive’s unlawful use (including being under the influence) or possession of illegal drugs. For purposes of the previous sentence, no act or failure to act on Executive’s part shall be deemed “willful” unless done, or omitted to be done, by Executive not in good faith and without reasonable belief that Executive’s action or omission was in the best interest of the Company.

Disability ” means Executive’s inability to perform, with or without reasonable accommodation, the essential functions of his position hereunder for a period of 180 consecutive days due to mental or physical incapacity, as determined by mutual agreement of a physician


selected by the Company or its insurers and a physician selected by Executive; provided, however, if the opinion of the Company’s physician and Executive’s physician conflict, the Company’s physician and Executive’s physician shall together agree upon a third physician, whose opinion shall be binding.; provided , however , that Executive shall not be considered to have a Disability unless it is also treated as a disability under the Company’s long-term disability policy.

Good Reason ” means: (i) a material default in the performance of the Company’s obligations under this Agreement; (ii) a significant diminution of Executive’s responsibilities, duties or authority as Senior Vice President – Chief Commercial Officer, or a material diminution of Executive’s base compensation, unless such diminution is mutually agreed between Executive and the Company; or (iii) the relocation of Executive’s principal office, without his consent, to a location that is in excess of fifty (50) miles from San Francisco (it being understood and agreed that Executive’s travel for business purposes shall not be considered such a relocation); provided, however, that Executive’s termination will not be for Good Reason unless (x) Executive has given the Company at least thirty (30) days prior written notice of his intent to terminate his employment for Good Reason, which notice shall specify the facts and circumstances constituting Good Reason and be given within ninety (90) days of the initial occurrence thereof, (y) the Company has not remedied such facts and circumstances constituting Good Reason within thirty (30) days following the receipt of such notice, and (z) Executive terminates employment within six months following the expiration of such thirty (30)-day cure period.

Notice of Termination ” means a dated notice that (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated, (iii) specifies a Termination Date, except in the case of the Company’s termination of Executive’s employment for Cause, for which the Termination Date may be the date of the notice; provided , however , that Executive has been provided with any applicable cure period, and (iv) is given in the manner specified in Section 7.2 hereof. With the exception of termination of Executive’s employment due to Executive’s death, any purported termination of Executive’s employment by the Company for any reason, including without limitation for Cause or Disability, or by Executive for any reason, shall be communicated by a written “Notice of Termination” to the other party. The failure by the Company or Executive to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Cause or Good Reason, as applicable, shall not waive any right of the Company or Executive under this Agreement or preclude the Company or Executive from asserting such fact or circumstance in enforcing the Company’s or Executive’s rights under this Agreement.

Termination Date ” means (i) if Executive’s employment is terminated for Cause or Disability, the date specified in the Notice of Termination, (ii) in the case of termination of employment due to death, the date of Executive’s death, (iii) if either party elects not to extend the Term of this Agreement pursuant to Section 2.1, the close of business on the day immediately preceding the next scheduled Extension Date, or (iv) if Executive’s employment is terminated for any other reason, the date on which a Notice of Termination is given or as specified in such Notice.

 

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  2. EMPLOYMENT

2.1 Agreement and Term . The Company hereby employs Executive as an employee of the Company, and Executive hereby accepts said employment and agrees to render such services to the Company, on the terms and conditions set forth in this Agreement. Unless terminated earlier as set forth herein, the term of employment under this Agreement shall commence on the Effective Date and shall end on the fifth anniversary thereof (the “ Term ”); provided , however , that commencing on the fifth anniversary of the Effective Date and on each anniversary thereafter (each an “ Extension Date ”), the Term shall be automatically extended for an additional one year period, unless either party gives written notice that the Term shall not be so extended at least sixty (60) days prior to the next Extension Date.

2.2 Position and Duties . Except as otherwise provided in this Agreement, during the Term of this Agreement, Executive shall serve as Senior Vice President – Chief Commercial Officer and shall report directly to the Chief Executive Officer. Executive shall perform duties, undertake the responsibilities, and exercise the authorities customarily performed, undertaken and exercised by persons situated in a similar capacity at a similar company. Executive shall carry out his duties and responsibilities at all times in compliance with the Company’s Manual of Corporate Authorities, as in effect from time to time, and in compliance with any other policies promulgated from time to time by the Company. Executive shall also perform such other duties, commensurate with his position, as reasonably requested by the Board of Directors. During the Term of this Agreement, Executive shall use his best efforts to serve the Company faithfully, diligently and competently and to the best of his ability, and to devote his full time business hours, energy, ability, attention and skill to the business of the Company; provided , however , that the foregoing is not intended to preclude Executive from noncompetitive activities, conducted outside normal business hours permitted under Section 2.3 hereof.

2.3 Outside Activities . It shall not be a violation of this Agreement for Executive to (i) deliver lectures or fulfill speaking engagements; (ii) manage personal investments; or (iii) subject to the prior consent of the Board of Directors (which consent shall not be unreasonably withheld), serve on industry trade, civic, or charitable boards or committees or on for-profit corporate boards of directors and advisory committees, as long as the activities set forth in (i) – (iii) (taken together or separately) do not materially interfere with the performance of Executive’s duties hereunder and are not in conflict or competitive with, or adverse to, the Company. Executive shall not, however, under any circumstances, provide services or advice in any capacity whatsoever for or on behalf of any entity that competes with or is competitive with the Company.

2.4 Location . During the Term, Executive shall be based in the San Francisco Bay Area.

 

  3. COMPENSATION AND BENEFITS

3.1 Salary . The Company shall compensate and pay Executive for his services at a rate equivalent to $325,000 per year, less payroll deductions and all required tax withholdings (“ Base Salary ”), which salary shall be payable in accordance with the Company’s customary payroll practices applicable to its executives, but no less frequently than monthly.

 

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3.2 Bonus . During the Term of this Agreement, Executive shall have the opportunity to earn annual performance bonuses based on performance criteria to be established by the Board of Directors after consultation with Executive. Executive shall be eligible to receive a target cash bonus of 40% of his Base Salary based upon the attainment of performance objectives established by the Board of Directors after consultation with Executive. Unless set forth otherwise herein, Executive must be actively employed with the Company through the end of the applicable fiscal year in order to receive any annual bonus payout pursuant to this subsection. Any bonus payable hereunder in respect of a fiscal year shall be paid at the same time annual bonuses are paid to other senior executives of the Company in respect of such fiscal year; but in any event within the fiscal year following the fiscal year of performance.

3.3 Employee Benefits . During the Term of this Agreement, to the extent eligible under the applicable plans or programs, Executive shall be entitled to participate in the employee benefits plans and programs made available to executive level employees of the Company generally, such as health, medical, dental and other insurance coverage and group retirement plans. The terms and conditions of Executive’s participation in any employee benefit plan or program shall be subject to the terms and conditions of such plan or program, as may be modified by the Company from time to time. Nothing in this Agreement shall preclude the Company from amending or terminating any employee benefit plan or program.

3.4 Grant of Options . Subject to obtaining requisite corporate approvals, Executive shall be granted under the 2014 Equity Incentive Plan of Holdings (the “ Equity Plan ”) options to purchase 134,550 shares of common stock of Holdings (the “ Options ”). Such grant shall be made pursuant to, and the terms of the Options shall be subject to, a stock option grant agreement between Executive and Holdings substantially in the form attached as Exhibit A hereto. The Options will have a per-share exercise price equal to the fair market value of a share of common stock of Holdings on the date of grant and a term of ten years from the date of grant.

3.5 Paid Leave . Executive shall be entitled to four weeks of paid vacation leave each year, subject an annual accrual cap of thirty (30) days. Executive shall also be entitled to all paid holidays to which executive level employees of the Company are entitled. Accrued unused vacation leave shall be paid in the event of a termination of employment.

 

  4. EXPENSES

4.1 Expenses . The Company shall reimburse Executive or otherwise provide for or pay for reasonable out-of-pocket expenses incurred by Executive in furtherance of or in connection with the business of the Company, including, but not limited to, travel and entertainment expenses commensurate with his duties hereunder (including attendance at industry conferences), subject to the Company’s policies as periodically reviewed by the Board of Directors and in effect from time to time, including without limitation such reasonable documentation and other limitations as may be established or required by the Company.

 

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  5. TERMINATION

5.1 Termination Due to Death or Disability . If Executive’s employment is terminated by reason of Executive’s death or Disability, Executive or his estate shall be entitled to receive: (a) Executive’s accrued Base Salary through the Termination Date; (b) an amount for reimbursement, paid within sixty (60) days following submission by Executive (or if applicable, Executive’s estate) to the Company of appropriate supporting documentation for any unreimbursed business expenses properly incurred prior to the Termination Date by Executive pursuant to Section 4 and in accordance with Company policy; (c) any accrued and unpaid vacation pay, paid within sixty (60) days of the Termination Date; and (d) such employee benefits, if any, to which Executive (or, if applicable, Executive’s estate) or his dependents may be entitled under the employee benefit plans or programs of the Company, paid in accordance with the terms of the applicable plans or programs (the amounts described in clauses (a) through (d) hereof being referred to as the “ Accrued Rights ”). In addition, Executive or his estate shall be entitled to receive (x) in a lump sum in cash within two and one-half months after the Termination Date (or such earlier date as required by applicable law), the amount of any annual bonus earned for any previously completed fiscal year in accordance with Section 3.2 that has not been paid (the “ Accrued Bonus ”); and (y) an amount equal to the product of (i) the fraction of the current fiscal year that has elapsed through the date of Executive’s termination and (ii) the Board-approved annual bonus payout for Executive for such fiscal year based on actual Company performance for such fiscal year measured following the completion thereof, payable at the time the annual bonus would have been paid to Executive had he remained employed through the end of the such fiscal year (the “ Pro-Rata Bonus ”).

5.2 Termination by Executive without Good Reason and other than Disability or Death . In the event Executive terminates his employment for any reason other than Good Reason, Disability or death, Executive shall be entitled to receive the Accrued Rights, but following the Termination Date, Executive shall have no further rights to any other compensation or benefits under this Agreement, including without limitation any severance or continuation of benefits or otherwise.

5.3 Termination by the Company for Cause . In the event the Company terminates his employment for Cause, Executive shall be entitled to receive the Accrued Rights, but following the Termination Date, Executive shall have no further rights to any other compensation or benefits under this Agreement, including without limitation any severance or continuation of benefits or otherwise.

5.4 Termination by the Company Other Than for Death, Disability or Cause or by Executive for Good Reason . If Executive’s employment is terminated by the Company prior to the end of the Term for reasons other than death, Disability or Cause, or by Executive prior to the end of the Term for Good Reason, Executive shall be entitled to receive (a) an amount equal to his Base Salary, payable on a monthly basis, for a period of twelve (12) months following the Termination Date; (b) for a period of eighteen (18) months following the Termination Date that Executive is eligible to elect and does elect to continue coverage for himself and his eligible dependents under the Company’s group health plans, as applicable, under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and/or Sections 601 through 608 of the Employee Retirement Income Security Act of 1974, as amended

 

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(collectively, “ COBRA ”), medical and dental coverage as required by COBRA and prompt reimbursement for the premium costs charged to Executive for such COBRA continuation coverage; provided, however, that (i) such COBRA coverage shall terminate if and to the extent Executive becomes eligible to receive medical and dental coverage from a subsequent employer (and any such eligibility shall be promptly reported to the Company by Executive) and (ii) the Company’s obligation to reimburse Executive for such premium costs shall cease if, upon the advice of legal counsel, the Company determines that it would reasonably be expected to be subject to any penalty, excise or other tax for providing discriminatory benefits; provided that, in such event, the Company shall implement reasonable comparable alternative payments or benefits to Executive that would avoid such penalty, excise tax or other tax; (c) the Accrued Bonus; (d) the Pro-Rata Bonus, provided that Executive has been employed for at least six (6) months of the fiscal year in which such termination occurs, and (e) the Accrued Rights; provided that the payments described in clauses (a), (b) and (d) shall be subject to Executive’s continued compliance with the provisions of Section 6 and of the release delivered under Section 5.9.

5.5 Termination by Mutual Consent . Notwithstanding any of the foregoing provisions of this Section 5, if at any time during the course of this Agreement the parties by mutual consent decide to terminate Executive’s employment, they may do so by separate agreement setting forth the terms and conditions of such termination.

5.6 Termination by Non-Extension of Term . Notwithstanding anything herein to the contrary, in the event either party elects not to extend the Term of this Agreement pursuant to Section 2.1 hereto, Executive’s employment with the Company hereunder shall automatically terminate upon expiration of the Term of this Agreement on the Termination Date. In the event of such non-extension of the Term, unless Executive’s employment is earlier terminated otherwise pursuant to Section 5 hereof, Executive shall be entitled to receive the Accrued Rights and the Accrued Bonus. Following the Termination Date, Executive shall have no further rights to any other compensation or benefits under this Agreement, including without limitation any severance or continuation of benefits or otherwise.

5.7 Payment of Severance . Subject to Section 7.13, any severance payments pursuant to Section 5.4(a) hereof shall be paid commencing on the sixtieth (60th) day following the Termination Date (with a lump sum catch-up payment for any installments otherwise payable within sixty (60) days following the Termination Date) and in accordance with the Company’s standard payroll schedule and practices.

5.8 Release of Claims; Offsets . As a condition to the receipt of any payments of benefits described hereunder subsequent to the termination of the employment of Executive (other than Accrued Rights), Executive shall be required to execute, and not subsequently revoke, within sixty (60) days following the termination of his employment a release in a form reasonably acceptable to the Company of all claims arising out of his employment or the termination thereof. Subject to the limitations of applicable wage laws, the Company’s obligations to pay the severance benefits hereunder shall be subject to set-off, counterclaim or recoupment of amounts owed by Executive to the Company or any of its affiliates, except to the extent that the severance benefits constitute “nonqualified deferred compensation” for purposes of Section 409A (as defined in Section 7.13) and such offset would result in the imposition of tax or other adverse tax consequences under Section 409A. In no

 

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event shall Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not Executive obtains other employment.

5.9    Cooperation with Company after Termination of Employment . Following termination of Executive’s employment for any reason, Executive shall reasonably cooperate with the Company in all matters relating to the winding up of his pending work on behalf of the Company including, but not limited to, any litigation in which the Company is involved and the orderly transfer of any such pending work to other employees of the Company as may be designated by the Company. The Company shall reasonably compensate Executive for services rendered pursuant to this Section 5.9 at a rate to be determined by the parties. In addition, the Company shall reimburse Executive for any reasonable out-of-pocket expenses he incurs in performing any work on behalf of the Company following the termination of his employment.

 

  6. NON-SOLICITATION & NON-COMPETITION

6.1    Non-Compete . Executive agrees that during the Term and for one year following the Termination Date (the “ Restricted Period ”), Executive shall not, anywhere in the areas where the Company conducts business during the Term (the “ Restricted Territory ”), directly or indirectly, own, manage, operate, join, control or participate in the ownership, management, operation or control of, or be an officer or an employee of any business or organization that, directly or indirectly, develops, processes, packages, markets, promotes or sells color cosmetics or related services in the Restricted Territories (each, a “ Restricted Business ”). The foregoing shall not restrict Executive from (a) owning up to 5% of any class of securities of any person engaged in a Restricted Business if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934, as amended, as long as such securities are held solely as a passive investment and not with a view to influencing, controlling or directing the affairs of such person), or (b) following Executive’s termination of employment, being an officer, director, employee, shareholder, consultant, contractor, partner, joint venturer, agent, equity owner or acting in another capacity of or for (i) a business that principally sells retail goods (such as Wal-Mart) for which sales of products manufactured by a Restricted Business generate less than 10% of its revenue or (ii) a business entity that has multiple lines of business, some of which are not a Restricted Business, so long as Executive’s services for such entity are restricted so that he will provide no services or other assistance in support of, and will not otherwise be involved with, any Restricted Business conducted by such entity (except that Executive shall be permitted to serve in a management capacity with responsibility for multiple product lines so long as such responsibility does not cover product lines for which more than 10% of the collective revenues are generated by a Restricted Business).

6.2    Non-Solicitation . Executive agrees that during the Restricted Period, Executive will not, directly or indirectly, for himself or on behalf of or in conjunction with any other person, (i) hire or attempt to hire any person that is an employee of the Company or was within six months prior to the Termination Date; provided , however , this Section 6.2 (including clause (ii) below) shall not be breached by a solicitation to the general public or through general advertising, and Executive may solicit for employment any person who at the Termination Date

 

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had not been an employee of the Company at any time within six months preceding such date or whose employment with the Company had terminated more than six months prior to Executive’s solicitation of such person or (ii) solicit, advise or encourage any person, firm, government agency or corporation to withdraw, curtail or cancel its business with the Company.

6.3    Non-Disparagement . During the Term and thereafter, Executive agrees that he will not, at any time, make, directly or indirectly, any oral or written statements that are disparaging of the Company, its products or services, or any of its present or former officers, directors, stockholders or employees (or any of their respective Affiliates), and the Company shall instruct its Board and executives not to disparage Executive orally or in writing at any time; provided that either party may confer in confidence with its legal representatives and make truthful statements as required by law.

6.4    Reasonable Limitation and Severability . The parties agree that the above restrictions on competition are (i) reasonable given Executive’s role with the Company, and are necessary to protect the interests of the Company and (ii) completely severable and independent agreements supported by good and valuable consideration and, as such, shall survive the termination of this Agreement for any reason whatsoever. The parties further agree that any invalidity or unenforceability of any one or more of such restrictions on competition shall not render invalid or unenforceable any remaining restrictions on competition. Additionally, should a court of competent jurisdiction determine that the scope of any provision of this Section 6 is too broad to be enforced as written, the parties hereby authorize the court to reform the provision to such narrower scope as it determines to be reasonable and enforceable and the parties intend that the affected provision be enforced as so amended.

6.5    Confidential Information . Executive acknowledges and agrees that the customers, business connections, customer lists, procedures, operations, techniques and other aspects of and information about the business of the Company (the “ Confidential Information ”) are established at great expense and protected as confidential information and provide the Company with a substantial competitive advantage in conducting its business. Executive further acknowledges and agrees that by virtue of his employment with the Company, he has had access to and will have access to, and has been entrusted with and will be entrusted with Confidential Information, and that the Company would suffer great loss and injury if Executive would disclose this information or use it in a manner not specifically authorized by the Company. Therefore, Executive agrees that during the Term and at all times thereafter, he will not, directly or indirectly, either individually or as an employee, agent, partner, shareholder, owner trustee, beneficiary, co-venturer distributor, consultant or in any other capacity, use or disclose or cause to be used or disclosed any Confidential Information, unless and to the extent (i) that any such information becomes generally known to and available for use by the public other than as a result of Executive’s acts or omissions, (ii) authorized in writing by the Board of Directors or compelled by legal process (provided that Executive provides the Company with advance notice adequate to afford the Company reasonable opportunity to limit or prevent such disclosure), or (iii) use or disclosure is to an employee of the Company or a person to whom disclosure is reasonably necessary or appropriate in connection with the performance by Executive of his duties as an employee or director of the Company. Executive shall deliver to the Company at the termination of the Term, or at any other time the Company may request, all memoranda, notes, plans, records, reports, computer tapes, printouts and software and other documents and data

 

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(and copies thereof) relating to the Confidential Information or Work Product (as defined below) which he may then possess or have under his control, provided that Executive shall be entitled to retain his telephone, address and other contact directories subject to compliance with Sections 6.1 through 6.3. Executive acknowledges and agrees that all inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not patentable) that relate to the Company’s actual or anticipated business and that are conceived, developed or made by Executive while employed by the Company and during work hours or by the use of the facilities or Confidential Information of the Company (“ Work Product ”) belong to the Company.

 

  7. GENERAL PROVISIONS

7.1 Assignment . The Company shall assign this Agreement and its rights and obligations hereunder in whole, but not in part, to any company or other entity with or into which the Company may hereafter merge or consolidate or to which the Company may transfer all or substantially all of its assets, and in any such case said company or other entity shall by operation of law or expressly in writing assume all obligations of the Company hereunder as fully as if it had been originally made a party hereto. Such assignment will not release the Company from any payment obligations hereunder. Executive may not assign or transfer this Agreement or any rights or obligations hereunder.

7.2 Notice . For the purposes of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when delivered or mailed by certified or registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth below:

 

To the Company:    TPG Growth
   345 California Street, Suite 3300
   San Francisco, California 94104
   Attn: ###
   Facsimile: ###
   Email: ###
To Executive:    Richard F. Baruch Jr.
   ###
   ###
   ###

7.3 Amendment and Waiver . No provision of this Agreement may be amended or waived unless such amendment or waiver is in writing and signed by each of the parties hereto.

7.4 Non-Waiver of Breach . No failure by either party to declare a default due to any breach of any obligation under this Agreement by the other, nor failure by either party to act quickly with regard thereto, shall be considered to be a waiver of any such obligation, or of any future breach.

 

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7.5 Severability . In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect.

7.6 Governing Law . To the extent not preempted by federal law, the validity and effect of this Agreement and the rights and obligations of the parties hereto shall be construed and determined in accordance with the law of California.

7.7 Arbitration .

(a) Except with respect to disputes and claims under Section 6 (which the parties hereto may pursue in any court of competent jurisdiction as specified herein and with respect to which each party shall bear the cost of its own attorneys’ fees and expenses, except to the extent otherwise required by applicable law), each party hereto agrees that arbitration, pursuant to the procedures set forth in the National Rules for the Resolution of Employment Disputes of the American Arbitration Association (“ AAA ”) as adopted and effective as of June 1, 1997 or such later version as may then be in effect) (the “ AAA Rules ”), shall be the sole and exclusive method for resolving any claim or dispute (“ Claim ”) arising out of or relating to the rights and obligations of the parties under this Agreement and the employment of Executive by the Company (including any Claim regarding employment discrimination, sexual harassment, termination and discharge), whether such Claim arose or the facts on which such Claim is based occurred prior to or after the execution and delivery of this Agreement.

(b) The parties hereto agree that (i) one arbitrator shall be appointed pursuant to the AAA Rules to conduct any such arbitration, (ii) all meetings of the parties and all hearings with respect to any such arbitration shall take place in Oakland, California and (iii) each party to the arbitration shall bear its own costs and expenses (including all attorneys’ fees and expenses, except to the extent otherwise required by applicable law) and all costs and expenses of the arbitration proceeding (such as filing fees, the arbitrator’s fees, hearing expenses, etc.) shall be borne equally by the parties hereto; provided, however, that the arbitrator shall, in the award, allocate all such costs and expenses against the party who did not prevail.

(c) In addition, the parties hereto agree that (i) the arbitrator shall have no authority to make any decision, judgment, ruling, finding, award or other determination that does not conform to the terms and conditions of this Agreement (as executed and delivered by the parties hereto), (ii) the arbitrator shall have no greater authority to award any relief than a court having proper jurisdiction and (iii) the arbitrator shall have no authority to commit an Error of Law (as defined below) in its decision, judgment, ruling, finding, award or other determination, and on appeal from or motion to vacate or confirm such decision, judgment, ruling, finding, award or other determination, a court having proper jurisdiction may vacate any such decision, judgment, ruling, finding, award or other determination to the extent containing an Error of Law. For purposes of this Agreement, an “ Error of Law ” means any decision, judgment, ruling, finding, award or other determination that is inconsistent with the laws governing this Agreement pursuant to Section 7.6. Any decision, judgment, ruling, finding, award or other determination of the arbitrator and any information disclosed in the course of any arbitration hereunder (collectively, the “ Arbitration Information ”) shall be kept confidential by the parties subject to Section 7.7(d), and any appeal from or motion to vacate or confirm such decision, judgment, ruling, finding, award or other determination shall be filed under seal if permitted by the court.

 

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(d)    In the event that any party or such party’s affiliates, associates or representatives is requested or required (by oral question or request for information or documents in any legal proceeding, interrogatory, subpoena, civil investigative demand, or similar process) to disclose any Arbitration Information (the “ Disclosing Party ”), such Disclosing Party shall notify the other party promptly of the request or requirement so that the other party may seek an appropriate protective order or waive compliance with the provisions of this Section 7.7. If, in the absence of a protective order or the receipt of a waiver hereunder, the Disclosing Party or any of its affiliates, associates or representatives believes in good faith, upon the advice of legal counsel, that it is compelled to disclose any such Arbitration Information, such Disclosing Party may disclose such portion of the Arbitration Information as it believes in good faith, upon the advice of legal counsel, it is required to disclose; provided that the Disclosing Party shall use reasonable efforts to obtain, at the request and expense of the other party, an order or other assurance that confidential treatment shall be accorded to such portion of the Arbitration Information required to be disclosed as the other party shall designate. Notwithstanding anything in this Section 7.7 to the contrary, the parties shall have no obligation to keep confidential any Arbitration Information that becomes generally known to and available for use by the public other than as a result of the disclosing party’s acts or omissions or the acts or omissions of such party’s affiliates, associates or representatives. The parties agree that, subject to the right of any party to appeal or move to vacate or confirm any decision, judgment, ruling, finding, award or other determination of an arbitration as provided in this Section 7.7, the decision, judgment, ruling, finding, award or other determination of any arbitration under the AAA Rules shall be final, conclusive and binding on all of the parties hereto; provided, however, nothing in this Section 7.7 shall prohibit any party hereto from instituting litigation to enforce any final decision, judgment, ruling, finding, award or other determination of the arbitration.

7.8    Entire Agreement . This Agreement contains all of the terms agreed upon by the Company and Executive with respect to the subject matter hereof and supersedes all prior agreements, arrangements and communications between the parties dealing with such subject matter, whether oral or written.

7.9    Binding Effect . This Agreement shall be binding upon and shall inure to the benefit of the transferees, successors and assigns of the Company, including any company with which the Company may merge or consolidate,

7.10    Headings . Numbers and titles to Sections hereof are for information purposes only and, where inconsistent with the text, are to be disregarded.

7.11    Counterparts . This Agreement may be executed in any number of counterparts, including by facsimile or other electronic transmission, each of which shall be deemed an original, but all of which when taken together, shall be and constitute one and the same instrument.

7.12    Specific Enforcement; Remedies . The provisions of Section 6 of this Agreement are to be specifically enforced if not performed according to their terms. Without

 

11


limiting the generality of the foregoing, the parties acknowledge that the Company would be irreparably damaged and there would be no adequate remedy at law for Executive’s breach of Section 6 of this Agreement and further acknowledge that the Company may seek entry of a temporary restraining order or preliminary injunction, in addition to any other remedies available at law or in equity, to enforce the provisions thereof, without the Company being required to post a bond or other security therefor. In addition, in the event of a material violation by Executive of the provisions of Section 6, any severance being paid to Executive pursuant to this Agreement or otherwise shall immediately cease, and any severance previously paid to Executive shall be immediately repaid to the Company.

7.13 Taxes & IRC Section 409A Matters . The Company may withhold from any payment hereunder such state, federal or local income, employment or other taxes and other legally mandated withholdings as it reasonably deems appropriate. The Company makes no representation about the tax treatment or impact of any payment(s) hereunder. The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of the Code, as amended (“ Section 409A ”), to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and administered to be in compliance therewith. Notwithstanding anything herein to the contrary: (i) if at the time of Executive’s termination of employment with the Company, Executive is a “specified employee” as defined in Section 409A and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Executive) until the date that is six (6) months following Executive’s termination of employment with the Company (or the earliest date as is permitted under Section 409A); (ii) if any other payments of money or other benefits due to Executive hereunder could cause the application of an accelerated or additional tax under Section 409A, such payments ‘or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner determined by the Company that does not cause such an accelerated or additional tax; (iii) to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, Executive shall not be considered to have terminated employment with the Company for purposes of this Agreement and no payment shall be due to Executive under this Agreement until Executive would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A; and (iv) each amount to be paid or benefit to be provided to Executive pursuant to this Agreement, which constitutes deferred compensation subject to Section 409A, shall be construed as a separate identified payment for purposes of Section 409A. To the extent required to avoid an accelerated or additional tax under Section 409A, amounts reimbursable to Executive under this Agreement shall be paid to Executive on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to Executive) during any one year may not affect amounts reimbursable or provided in any subsequent year, or be subject to liquidation or exchange for another benefit. Neither the Company nor any of its employees or representatives shall have any liability to Executive with respect to Section 409A.

 

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7.14 Survival . Except as otherwise expressly provided in this Agreement, all covenants, representations and warranties, express or implied, in addition to the provisions of Sections 6 and 7 of this Agreement, shall survive the termination of this Agreement.

7.15 Indemnification and Insurance . The Company shall indemnify Executive to the full extent provided for in its corporate Bylaws and to the maximum extent that the Company indemnifies any of its other directors and senior executive officers, and he will be entitled to the protection of any insurance policies the Company may elect to maintain generally for the benefit of its directors and senior executive officers against all costs, charges, liabilities and expenses incurred or sustained by him in connection with any action, suit or proceeding to which he may be made a party by reason of his being or having been a director, officer or employee of the Company or any of its affiliates or his serving or having served any other enterprise, plan or trust as a director, officer, employee or fiduciary at the request of the Company or any of its affiliates (other than any dispute, claim or controversy arising under or relating to this Agreement (except for this Section 7.15)). The Company will enter into an indemnification agreement with Executive in the standard form that it has or will adopt for the benefit of its other directors and senior executive officers. The provisions of this Section 7.15 shall survive any termination of Executive’s employment or any termination of this Agreement.

7.16 Section 280G . In the event that it shall be determined that any payment or distribution to or for the benefit of Executive under this Agreement or under any other Company plan, contract or agreement would, but for the effect of this Section 7.16, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (collectively, such excise tax, together with any such interest or penalties, the “ Excise Tax ”), then, at the election of Executive, in the event that the after-tax value of all Payments (as defined below) to Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to Executive of the Safe Harbor Amount (as defined below), (1) the cash portions of the Payments payable to Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value (as defined below) of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount, and (2) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to Executive under any other plans shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount, and (3) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement and otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount. As used herein, (x) “ Payment ” shall mean any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable pursuant to this Agreement or otherwise, (y) “ Safe Harbor Amount ” shall mean 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code, and (z) “ Parachute Value ” of a Payment shall mean the present value as of the date of the Change in Control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the

 

13


Code for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. All calculations under this section shall be made reasonably by the Company and the Company’s outside auditor at the Company’s expense and at the times reasonably requested by Executive.

[signatures on next page]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Employment Agreement to be duly executed on the date and year first written above.

 

J.A. COSMETICS US, INC.    
By:  

/s/ Tarang P. Amin

   

/s/ Richard F. Baruch Jr.

Name:  

Tarang P. Amin

    Richard F. Baruch Jr.
Title:  

President & CEO

   
J.A. COSMETICS HOLDINGS, INC.    
By:  

/s/ Tarang P. Amin

   
Name:  

Tarang P. Amin

   
Title:  

President & CEO

   

 

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Exhibit 10.24

EMPLOYMENT AGREEMENT

This Employment Agreement (this “ Agreement ”), is made and entered into on the 8th day of July 2016 by and among e.l.f. Cosmetics, Inc. (together with its successor, the “ Company ”), e.l.f. Beauty, Inc., the owner of all of the outstanding capital stock of the Company (together with its successor, “ Holdings ”), and Jon Fieldman (“ Executive ”). This Agreement shall become effective as of the Effective Date (as hereinafter defined).

WHEREAS, the Company desires to employ Executive on the terms and conditions contained herein on July 18, 2016 (the “ Effective Date ”); and

WHEREAS, Executive desires to be employed by and render services to the Company upon and subject to the terms, conditions and other provisions set forth herein.

NOW THEREFORE, in consideration of the promises and mutual covenants and agreements contained herein, the adequacy of all of which consideration is hereby acknowledged, the parties hereby agree as follows:

 

  1. DEFINITIONS

The following words and terms shall have the meanings set forth below for the purposes of this Agreement:

Board of Directors ” means the Board of Directors of Holdings.

Cause ” means (i) a breach by Executive of Executive’s obligations under Section 2.2 (other than as a result of physical or mental incapacity) which constitutes material nonperformance by Executive of his obligations and duties thereunder, which Executive has failed to remedy after the Board of Directors has given Executive written notice of, and at least fifteen (15) days to remedy, such breach, (ii) commission by Executive of an act of fraud, embezzlement, misappropriation, willful misconduct or breach of fiduciary duty against the Company (other than acts, such as making personal use of Company office supplies, as have only a de minimis effect on the Company), (iii) a material breach by Executive of Section 6 of this Agreement, (iv) Executive’s conviction, plea of no contest or nolo contendere, deferred adjudication or unadjudicated probation for any felony or any crime involving moral turpitude, (v) the failure of Executive to carry out, or comply with, in any material respect, any lawful directive of the Board of Directors (other than any such failure resulting from Executive’s physical or mental incapacity) which Executive has failed to remedy after the Board of Directors has given Executive written notice of, and at least fifteen (15) days to remedy, such failure, or (vi) Executive’s unlawful use (including being under the influence) or possession of illegal drugs. For purposes of the previous sentence, no act or failure to act on Executive’s part shall be deemed “willful” unless done, or omitted to be done, by Executive not in good faith and without reasonable belief that Executive’s action or omission was in the best interest of the Company.

Disability ” means Executive’s inability to perform, with or without reasonable accommodation, the essential functions of his position hereunder for a period of 180 consecutive days due to mental or physical incapacity, as determined by mutual agreement of a physician


selected by the Company or its insurers and a physician selected by Executive; provided, however, if the opinion of the Company’s physician and Executive’s physician conflict, the Company’s physician and Executive’s physician shall together agree upon a third physician, whose opinion shall be binding.; provided , however , that Executive shall not be considered to have a Disability unless it is also treated as a disability under the Company’s long-term disability policy.

Good Reason ” means: (i) a material default in the performance of the Company’s obligations under this Agreement; (ii) a significant diminution of Executive’s responsibilities, duties or authority as Senior Vice President, Operations, or a material diminution of Executive’s base compensation, unless such diminution is mutually agreed between Executive and the Company; or (iii) the relocation of Executive’s principal office, without his consent, to a location that is in excess of fifty (50) miles from San Francisco (it being understood and agreed that Executive’s travel for business purposes shall not be considered such a relocation); provided, however, that Executive’s termination will not be for Good Reason unless (x) Executive has given the Company at least thirty (30) days prior written notice of his intent to terminate his employment for Good Reason, which notice shall specify the facts and circumstances constituting Good Reason and be given within ninety (90) days of the initial occurrence thereof, (y) the Company has not remedied such facts and circumstances constituting Good Reason within thirty (30) days following the receipt of such notice, and (z) Executive terminates employment within six months following the expiration of such thirty (30)-day cure period.

Notice of Termination ” means a dated notice that (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated, (iii) specifies a Termination Date, except in the case of the Company’s termination of Executive’s employment for Cause, for which the Termination Date may be the date of the notice; provided , however , that Executive has been provided with any applicable cure period, and (iv) is given in the manner specified in Section 7.2 hereof. With the exception of termination of Executive’s employment due to Executive’s death, any purported termination of Executive’s employment by the Company for any reason, including without limitation for Cause or Disability, or by Executive for any reason, shall be communicated by a written “Notice of Termination” to the other party. The failure by the Company or Executive to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Cause or Good Reason, as applicable, shall not waive any right of the Company or Executive under this Agreement or preclude the Company or Executive from asserting such fact or circumstance in enforcing the Company’s or Executive’s rights under this Agreement.

Termination Date ” means (i) if Executive’s employment is terminated for Cause or Disability, the date specified in the Notice of Termination, (ii) in the case of termination of employment due to death, the date of Executive’s death, (iii) if either party elects not to extend the Term of this Agreement pursuant to Section 2.1, the close of business on the day immediately preceding the next scheduled Extension Date, or (iv) if Executive’s employment is terminated for any other reason, the date on which a Notice of Termination is given or as specified in such Notice.

 

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  2. EMPLOYMENT

2.1 Agreement and Term. The Company hereby employs Executive as an employee of the Company, and Executive hereby accepts said employment and agrees to render such services to the Company, on the terms and conditions set forth in this Agreement. Unless terminated earlier as set forth herein, the term of employment under this Agreement shall commence on the Effective Date and shall end on the fifth anniversary thereof (the “ Term ”); provided , however , that commencing on the fifth anniversary of the Effective Date and on each anniversary thereafter (each an “ Extension Date ”), the Term shall be automatically extended for an additional one year period, unless either party gives written notice that the Term shall not be so extended at least sixty (60) days prior to the next Extension Date.

2.2 Position and Duties. Except as otherwise provided in this Agreement, during the Term of this Agreement, Executive shall serve as Senior Vice President, Operations and shall report directly to the Chief Executive Officer. Executive shall perform duties, undertake the responsibilities, and exercise the authorities customarily performed, undertaken and exercised by persons situated in a similar capacity at a similar company. Executive shall carry out his duties and responsibilities at all times in compliance with the Company’s Manual of Corporate Authorities, as in effect from time to time, and in compliance with any other policies promulgated from time to time by the Company. Executive shall also perform such other duties, commensurate with his position, as reasonably requested by the Board of Directors. During the Term of this Agreement, Executive shall use his best efforts to serve the Company faithfully, diligently and competently and to the best of his ability, and to devote his full time business hours, energy, ability, attention and skill to the business of the Company; provided , however , that the foregoing is not intended to preclude Executive from noncompetitive activities, conducted outside normal business hours permitted under Section 2.3 hereof.

2.3 Outside Activities . It shall not be a violation of this Agreement for Executive to (i) deliver lectures or fulfill speaking engagements; (ii) manage personal investments; (iii) subject to the prior consent of the Board of Directors (which consent shall not be unreasonably withheld), serve on industry trade, civic, or charitable boards or committees or on for-profit corporate boards of directors and advisory committees; or (iv) officiate high school basketball, as long as the activities set forth in (i) – (iv) (taken together or separately) do not materially interfere with the performance of Executive’s duties hereunder and are not in conflict or competitive with, or adverse to, the Company. Executive shall not, however, under any circumstances, provide services or advice in any capacity whatsoever for or on behalf of any entity that competes with or is competitive with the Company.

2.4 Location . During the Term, Executive shall be based in the San Francisco Bay area.

 

  3. COMPENSATION AND BENEFITS

3.1 Salary. The Company shall compensate and pay Executive for his services at a rate equivalent to $325,000 per year, less payroll deductions and all required tax withholdings (“ Base Salary ”), which salary shall be payable in accordance with the Company’s customary payroll practices applicable to its executives, but no less frequently than monthly.

 

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3.2 Bonus. During the Term of this Agreement, Executive shall have the opportunity to earn annual performance bonuses based on performance criteria to be established by the Board of Directors after consultation with Executive. Executive shall be eligible to receive a target cash bonus of 40% of his Base Salary based upon the attainment of performance objectives established by the Board of Directors after consultation with Executive. Unless set forth otherwise herein, Executive must be actively employed with the Company through the date on which the Compensation Committee of the Board of Directors establishes the bonus for the applicable fiscal year in order to receive any annual bonus payout pursuant to this subsection. Any bonus payable hereunder in respect of a fiscal year shall be paid at the same time annual bonuses are paid to other senior executives of the Company in respect of such fiscal year; but in any event within the fiscal year following the fiscal year of performance.

3.3 Employee Benefits . During the Term of this Agreement, to the extent eligible under the applicable plans or programs, Executive shall be entitled to participate in the employee benefits plans and programs made available to executive level employees of the Company generally, such as health, medical, dental and other insurance coverage and group retirement plans. The terms and conditions of Executive’s participation in any employee benefit plan or program shall be subject to the terms and conditions of such plan or program, as may be modified by the Company from time to time. Nothing in this Agreement shall preclude the Company from amending or terminating any employee benefit plan or program.

3.4 Grant of Options . Subject to obtaining requisite corporate approvals, Executive shall be granted under the 2014 Equity Incentive Plan of Holdings (the “ Equity Plan ”) options to purchase 117,000 shares of common stock of Holdings (the “ Options ”). Such grant shall be made pursuant to, and the terms of the Options shall be subject to, a stock option grant agreement between Executive and Holdings substantially in the form attached as Exhibit A hereto. The Options will have a per-share exercise price equal to the fair market value of a share of common stock of Holdings on the date of grant and a term of ten years from the date of grant.

3.5 Paid Leave . Executive shall be entitled to four weeks of paid leave each year, subject an annual accrual cap of thirty (30) days. Executive shall also be entitled to all paid holidays to which executive level employees of the Company are entitled. Accrued unused leave shall be paid in the event of a termination of employment.

 

  4. EXPENSES

4.1 Expenses. The Company shall reimburse Executive or otherwise provide for or pay for reasonable out-of-pocket expenses incurred by Executive in furtherance of or in connection with the business of the Company, including, but not limited to, travel and entertainment expenses commensurate with his duties hereunder (including attendance at industry conferences), subject to the Company’s policies as periodically reviewed by the Board of Directors and in effect from time to time, including without limitation such reasonable documentation and other limitations as may be established or required by the Company.

 

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  5. TERMINATION

5.1 Termination Due to Death or Disability . If Executive’s employment is terminated by reason of Executive’s death or Disability, Executive or his estate shall be entitled to receive: (a) Executive’s accrued Base Salary through the Termination Date; (b) an amount for reimbursement, paid within sixty (60) days following submission by Executive (or if applicable, Executive’s estate) to the Company of appropriate supporting documentation for any unreimbursed business expenses properly incurred prior to the Termination Date by Executive pursuant to Section 4 and in accordance with Company policy; (c) any accrued and unpaid vacation pay, paid within sixty (60) days of the Termination Date; and (d) such employee benefits, if any, to which Executive (or, if applicable, Executive’s estate) or his dependents may be entitled under the employee benefit plans or programs of the Company, paid in accordance with the terms of the applicable plans or programs (the amounts described in clauses (a) through (d) hereof being referred to as the “ Accrued Rights ”). In addition, Executive or his estate shall be entitled to receive (x) in a lump sum in cash within two and one-half months after the Termination Date (or such earlier date as required by applicable law), the amount of any annual bonus earned for any previously completed fiscal year in accordance with Section 3.2 that has not been paid (the “ Accrued Bonus ”); and (y) an amount equal to the product of (i) the fraction of the current fiscal year that has elapsed through the date of Executive’s termination and (ii) the Board-approved annual bonus payout for Executive for such fiscal year based on actual Company performance for such fiscal year measured following the completion thereof, payable at the time the annual bonus would have been paid to Executive had he remained employed through the end of the such fiscal year (the “ Pro-Rata Bonus ”).

5.2 Termination by Executive without Good Reason and other than Disability or Death. In the event Executive terminates his employment for any reason other than Good Reason, Disability or death, Executive shall be entitled to receive the Accrued Rights, but following the Termination Date, Executive shall have no further rights to any other compensation or benefits under this Agreement, including without limitation any severance or continuation of benefits or otherwise.

5.3 Termination by the Company for Cause. In the event the Company terminates his employment for Cause, Executive shall be entitled to receive the Accrued Rights, but following the Termination Date, Executive shall have no further rights to any other compensation or benefits under this Agreement, including without limitation any severance or continuation of benefits or otherwise.

5.4 Termination by the Company Other Than for Death, Disability or Cause or by Executive for Good Reason. If Executive’s employment is terminated by the Company prior to the end of the Term for reasons other than death, Disability or Cause, or by Executive prior to the end of the Term for Good Reason, Executive shall be entitled to receive (a) an amount equal to his Base Salary, payable on a monthly basis, for a period of twelve (12) months following the Termination Date; (b) for a period of eighteen (18) months following the Termination Date that Executive is eligible to elect and does elect to continue coverage for himself and his eligible dependents under the Company’s group health plans, as applicable, under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and/or Sections 601 through 608 of the Employee Retirement Income Security Act of 1974, as amended

 

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(collectively, “ COBRA ”), medical and dental coverage as required by COBRA and prompt reimbursement for the premium costs charged to Executive for such COBRA continuation coverage; provided, however, that (i) such COBRA coverage shall terminate if and to the extent Executive becomes eligible to receive medical and dental coverage from a subsequent employer (and any such eligibility shall be promptly reported to the Company by Executive) and (ii) the Company’s obligation to reimburse Executive for such premium costs shall cease if, upon the advice of legal counsel, the Company determines that it would reasonably be expected to be subject to any penalty, excise or other tax for providing discriminatory benefits; provided that, in such event, the Company shall implement reasonable comparable alternative payments or benefits to Executive that would avoid such penalty, excise tax or other tax; (c) the Accrued Bonus; (d) the Pro-Rata Bonus, provided that Executive has been employed for at least six (6) months of the fiscal year in which such termination occurs, and (e) the Accrued Rights; provided that the payments described in clauses (a), (b) and (d) shall be subject to Executive’s continued compliance with the provisions of Section 6 and of the release delivered under Section 5.8.

5.5 Termination by Mutual Consent. Notwithstanding any of the foregoing provisions of this Section 5, if at any time during the course of this Agreement the parties by mutual consent decide to terminate Executive’s employment, they may do so by separate agreement setting forth the terms and conditions of such termination.

5.6 Termination by Non-Extension of Term. Notwithstanding anything herein to the contrary, in the event either party elects not to extend the Term of this Agreement pursuant to Section 2.1 hereto, Executive’s employment with the Company hereunder shall automatically terminate upon expiration of the Term of this Agreement on the Termination Date. In the event of such non-extension of the Term, unless Executive’s employment is earlier terminated otherwise pursuant to Section 5 hereof, Executive shall be entitled to receive the Accrued Rights and the Accrued Bonus. Following the Termination Date, Executive shall have no further rights to any other compensation or benefits under this Agreement, including without limitation any severance or continuation of benefits or otherwise.

5.7 Payment of Severance. Subject to Section 7.13, any severance payments pursuant to Section 5.4(a) hereof shall be paid commencing on the sixtieth (60th) day following the Termination Date (with a lump sum catch-up payment for any installments otherwise payable within sixty (60) days following the Termination Date) and in accordance with the Company’s standard payroll schedule and practices.

5.8 Release of Claims; Offsets. As a condition to the receipt of any payments of benefits described hereunder subsequent to the termination of the employment of Executive (other than Accrued Rights), Executive shall be required to execute, and not subsequently revoke, within sixty (60) days following the termination of his employment a release in a form reasonably acceptable to the Company of all claims arising out of his employment or the termination thereof. Subject to the limitations of applicable wage laws, the Company’s obligations to pay the severance benefits hereunder shall be subject to set-off, counterclaim or recoupment of amounts owed by Executive to the Company or any of its affiliates, except to the extent that the severance benefits constitute “nonqualified deferred compensation” for purposes of Section 409A (as defined in Section 7.13) and such offset would result in the imposition of tax or other adverse tax consequences under Section 409A. In no event shall Executive be obligated

 

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to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not Executive obtains other employment.

5.9 Cooperation with Company after Termination of Employment. Following termination of Executive’s employment for any reason, Executive shall reasonably cooperate with the Company in all matters relating to the winding up of his pending work on behalf of the Company including, but not limited to, any litigation in which the Company is involved and the orderly transfer of any such pending work to other employees of the Company as may be designated by the Company. The Company shall reasonably compensate Executive for services rendered pursuant to this Section 5.9 at a rate to be determined by the parties. In addition, the Company shall reimburse Executive for any reasonable out-of-pocket expenses he incurs in performing any work on behalf of the Company following the termination of his employment.

 

  6. NON-SOLICITATION & NON-COMPETITION

6.1 Non-Compete. Executive agrees that during the Term and for one year following the Termination Date (the “ Restricted Period ”), Executive shall not, anywhere in the areas where the Company conducts business during the Term (the “ Restricted Territory ”), directly or indirectly, own, manage, operate, join, control or participate in the ownership, management, operation or control of, or be an officer or an employee of any business or organization that, directly or indirectly, develops, processes, packages, markets, promotes or sells color cosmetics or related services in the Restricted Territories (each, a “ Restricted Business ”). The foregoing shall not restrict Executive from (a) owning up to 5% of any class of securities of any person engaged in a Restricted Business if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934, as amended, as long as such securities are held solely as a passive investment and not with a view to influencing, controlling or directing the affairs of such person), or (b) following Executive’s termination of employment, being an officer, director, employee, shareholder, consultant, contractor, partner, joint venturer, agent, equity owner or acting in another capacity of or for (i) a business that principally sells retail goods (such as Wal-Mart) for which sales of products manufactured by a Restricted Business generate less than 10% of its revenue or (ii) a business entity that has multiple lines of business, some of which are not a Restricted Business, so long as Executive’s services for such entity are restricted so that he will provide no services or other assistance in support of, and will not otherwise be involved with, any Restricted Business conducted by such entity (except that Executive shall be permitted to serve in a management capacity with responsibility for multiple product lines so long as such responsibility does not cover product lines for which more than 10% of the collective revenues are generated by a Restricted Business).

6.2 Non-Solicitation . Executive agrees that during the Restricted Period, Executive will not, directly or indirectly, for himself or on behalf of or in conjunction with any other person, (i) hire or attempt to hire any person that is an employee of the Company or was within six months prior to the Termination Date; provided , however , this Section 6.2 (including clause (ii) below) shall not be breached by a solicitation to the general public or through general advertising, and Executive may solicit for employment any person who at the Termination Date had not been an employee of the Company at any time within six months preceding such date or

 

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whose employment with the Company had terminated more than six months prior to Executive’s solicitation of such person or (ii) solicit, advise or encourage any person, firm, government agency or corporation to withdraw, curtail or cancel its business with the Company.

6.3 Non-Disparagement . During the Term and thereafter, Executive agrees that he will not, at any time, make, directly or indirectly, any oral or written statements that are disparaging of the Company, its products or services, or any of its present or former officers, directors, stockholders or employees (or any of their respective Affiliates), and the Company shall instruct its Board and executives not to disparage Executive orally or in writing at any time; provided that either party may confer in confidence with its legal representatives and make truthful statements as required by law.

6.4 Reasonable Limitation and Severability . The parties agree that the above restrictions on competition are (i) reasonable given Executive’s role with the Company, and are necessary to protect the interests of the Company and (ii) completely severable and independent agreements supported by good and valuable consideration and, as such, shall survive the termination of this Agreement for any reason whatsoever. The parties further agree that any invalidity or unenforceability of any one or more of such restrictions on competition shall not render invalid or unenforceable any remaining restrictions on competition. Additionally, should a court of competent jurisdiction determine that the scope of any provision of this Section 6 is too broad to be enforced as written, the parties hereby authorize the court to reform the provision to such narrower scope as it determines to be reasonable and enforceable and the parties intend that the affected provision be enforced as so amended.

6.5 Confidential Information. Executive acknowledges and agrees that the customers, business connections, customer lists, procedures, operations, techniques and other aspects of and information about the business of the Company (the “ Confidential Information ”) are established at great expense and protected as confidential information and provide the Company with a substantial competitive advantage in conducting its business. Executive further acknowledges and agrees that by virtue of his employment with the Company, he has had access to and will have access to, and has been entrusted with and will be entrusted with Confidential Information, and that the Company would suffer great loss and injury if Executive would disclose this information or use it in a manner not specifically authorized by the Company. Therefore, Executive agrees that during the Term and at all times thereafter, he will not, directly or indirectly, either individually or as an employee, agent, partner, shareholder, owner trustee, beneficiary, co-venturer distributor, consultant or in any other capacity, use or disclose or cause to be used or disclosed any Confidential Information, unless and to the extent (i) that any such information becomes generally known to and available for use by the public other than as a result of Executive’s acts or omissions, (ii) authorized in writing by the Board of Directors or compelled by legal process (provided that Executive provides the Company with advance notice adequate to afford the Company reasonable opportunity to limit or prevent such disclosure), or (iii) use or disclosure is to an employee of the Company or a person to whom disclosure is reasonably necessary or appropriate in connection with the performance by Executive of his duties as an employee or director of the Company. Executive shall deliver to the Company at the termination of the Term, or at any other time the Company may request, all memoranda, notes, plans, records, reports, computer tapes, printouts and software and other documents and data (and copies thereof) relating to the Confidential Information or Work

 

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Product (as defined below) which he may then possess or have under his control, provided that Executive shall be entitled to retain his telephone, address and other contact directories subject to compliance with Sections 6.1 through 6.3. Executive acknowledges and agrees that all inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not patentable) that relate to the Company’s actual or anticipated business and that are conceived, developed or made by Executive while employed by the Company and during work hours or by the use of the facilities or Confidential Information of the Company (“ Work Product ”) belong to the Company.

 

  7. GENERAL PROVISIONS

7.1 Assignment. The Company shall assign this Agreement and its rights and obligations hereunder in whole, but not in part, to any company or other entity with or into which the Company may hereafter merge or consolidate or to which the Company may transfer all or substantially all of its assets, and in any such case said company or other entity shall by operation of law or expressly in writing assume all obligations of the Company hereunder as fully as if it had been originally made a party hereto. Such assignment will not release the Company from any payment obligations hereunder. Executive may not assign or transfer this Agreement or any rights or obligations hereunder.

7.2 Notice. For the purposes of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when delivered or mailed by certified or registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth below:

 

To the Company:    570 10 th Street, 3 rd Floor
   Oakland, California 94607
   Attn: General Counsel
   Facsimile: ###
   Email: ###
To Executive:   

Jon Fieldman

###

###

Email: ###

7.3 Amendment and Waiver. No provision of this Agreement may be amended or waived unless such amendment or waiver is in writing and signed by each of the parties hereto.

7.4 Non-Waiver of Breach. No failure by either party to declare a default due to any breach of any obligation under this Agreement by the other, nor failure by either party to act quickly with regard thereto, shall be considered to be a waiver of any such obligation, or of any future breach.

 

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7.5 Severability. In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect.

7.6 Governing Law. To the extent not preempted by federal law, the validity and effect of this Agreement and the rights and obligations of the parties hereto shall be construed and determined in accordance with the law of California.

 

  7.7 Arbitration .

(a) Except with respect to disputes and claims under Section 6 (which the parties hereto may pursue in any court of competent jurisdiction as specified herein and with respect to which each party shall bear the cost of its own attorneys’ fees and expenses, except to the extent otherwise required by applicable law), each party hereto agrees that arbitration, pursuant to the procedures set forth in the National Rules for the Resolution of Employment Disputes of the American Arbitration Association (“ AAA ”) as adopted and effective as of June 1, 1997 or such later version as may then be in effect) (the “ AAA Rules ”), shall be the sole and exclusive method for resolving any claim or dispute (“ Claim ”) arising out of or relating to the rights and obligations of the parties under this Agreement and the employment of Executive by the Company (including any Claim regarding employment discrimination, sexual harassment, termination and discharge), whether such Claim arose or the facts on which such Claim is based occurred prior to or after the execution and delivery of this Agreement.

(b) The parties hereto agree that (i) one arbitrator shall be appointed pursuant to the AAA Rules to conduct any such arbitration, (ii) all meetings of the parties and all hearings with respect to any such arbitration shall take place in Oakland, California and (iii) each party to the arbitration shall bear its own costs and expenses (including all attorneys’ fees and expenses, except to the extent otherwise required by applicable law) and all costs and expenses of the arbitration proceeding (such as filing fees, the arbitrator’s fees, hearing expenses, etc.) shall be borne equally by the parties hereto; provided, however, that the arbitrator shall, in the award, allocate all such costs and expenses against the party who did not prevail.

(c) In addition, the parties hereto agree that (i) the arbitrator shall have no authority to make any decision, judgment, ruling, finding, award or other determination that does not conform to the terms and conditions of this Agreement (as executed and delivered by the parties hereto), (ii) the arbitrator shall have no greater authority to award any relief than a court having proper jurisdiction and (iii) the arbitrator shall have no authority to commit an Error of Law (as defined below) in its decision, judgment, ruling, finding, award or other determination, and on appeal from or motion to vacate or confirm such decision, judgment, ruling, finding, award or other determination, a court having proper jurisdiction may vacate any such decision, judgment, ruling, finding, award or other determination to the extent containing an Error of Law. For purposes of this Agreement, an “ Error of Law ” means any decision, judgment, ruling, finding, award or other determination that is inconsistent with the laws governing this Agreement pursuant to Section 7.6. Any decision, judgment, ruling, finding, award or other determination of the arbitrator and any information disclosed in the course of any arbitration hereunder (collectively, the “ Arbitration Information ”) shall be kept confidential by the parties subject to Section 7.7(d), and any appeal from or motion to vacate or confirm such decision, judgment, ruling, finding, award or other determination shall be filed under seal if permitted by the court.

 

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(d) In the event that any party or such party’s affiliates, associates or representatives is requested or required (by oral question or request for information or documents in any legal proceeding, interrogatory, subpoena, civil investigative demand, or similar process) to disclose any Arbitration Information (the “ Disclosing Party ”), such Disclosing Party shall notify the other party promptly of the request or requirement so that the other party may seek an appropriate protective order or waive compliance with the provisions of this Section 7.7. If, in the absence of a protective order or the receipt of a waiver hereunder, the Disclosing Party or any of its affiliates, associates or representatives believes in good faith, upon the advice of legal counsel, that it is compelled to disclose any such Arbitration Information, such Disclosing Party may disclose such portion of the Arbitration Information as it believes in good faith, upon the advice of legal counsel, it is required to disclose; provided that the Disclosing Party shall use reasonable efforts to obtain, at the request and expense of the other party, an order or other assurance that confidential treatment shall be accorded to such portion of the Arbitration Information required to be disclosed as the other party shall designate. Notwithstanding anything in this Section 7.7 to the contrary, the parties shall have no obligation to keep confidential any Arbitration Information that becomes generally known to and available for use by the public other than as a result of the disclosing party’s acts or omissions or the acts or omissions of such party’s affiliates, associates or representatives. The parties agree that, subject to the right of any party to appeal or move to vacate or confirm any decision, judgment, ruling, finding, award or other determination of an arbitration as provided in this Section 7.7, the decision, judgment, ruling, finding, award or other determination of any arbitration under the AAA Rules shall be final, conclusive and binding on all of the parties hereto; provided, however, nothing in this Section 7.7 shall prohibit any party hereto from instituting litigation to enforce any final decision, judgment, ruling, finding, award or other determination of the arbitration.

7.8 Entire Agreement. This Agreement contains all of the terms agreed upon by the Company and Executive with respect to the subject matter hereof and supersedes all prior agreements, arrangements and communications between the parties dealing with such subject matter, whether oral or written.

7.9 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the transferees, successors and assigns of the Company, including any company with which the Company may merge or consolidate.

7.10 Headings. Numbers and titles to Sections hereof are for information purposes only and, where inconsistent with the text, are to be disregarded.

7.11 Counterparts. This Agreement may be executed in any number of counterparts, including by facsimile or other electronic transmission, each of which shall be deemed an original, but all of which when taken together, shall be and constitute one and the same instrument.

 

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7.12 Specific Enforcement; Remedies. The provisions of Section 6 of this Agreement are to be specifically enforced if not performed according to their terms. Without limiting the generality of the foregoing, the parties acknowledge that the Company would be irreparably damaged and there would be no adequate remedy at law for Executive’s breach of Section 6 of this Agreement and further acknowledge that the Company may seek entry of a temporary restraining order or preliminary injunction, in addition to any other remedies available at law or in equity, to enforce the provisions thereof, without the Company being required to post a bond or other security therefor. In addition, in the event of a material violation by Executive of the provisions of Section 6, any severance being paid to Executive pursuant to this Agreement or otherwise shall immediately cease, and any severance previously paid to Executive shall be immediately repaid to the Company.

7.13 Taxes & IRC Section 409A Matters. The Company may withhold from any payment hereunder such state, federal or local income, employment or other taxes and other legally mandated withholdings as it reasonably deems appropriate. The Company makes no representation about the tax treatment or impact of any payment(s) hereunder. The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of the Code, as amended (“ Section 409A ”), to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and administered to be in compliance therewith. Notwithstanding anything herein to the contrary: (i) if at the time of Executive’s termination of employment with the Company, Executive is a “specified employee” as defined in Section 409A and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Executive) until the date that is six (6) months following Executive’s termination of employment with the Company (or the earliest date as is permitted under Section 409A); (ii) if any other payments of money or other benefits due to Executive hereunder could cause the application of an accelerated or additional tax under Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner determined by the Company that does not cause such an accelerated or additional tax; (iii) to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, Executive shall not be considered to have terminated employment with the Company for purposes of this Agreement and no payment shall be due to Executive under this Agreement until Executive would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A; and (iv) each amount to be paid or benefit to be provided to Executive pursuant to this Agreement, which constitutes deferred compensation subject to Section 409A, shall be construed as a separate identified payment for purposes of Section 409A. To the extent required to avoid an accelerated or additional tax under Section 409A, amounts reimbursable to Executive under this Agreement shall be paid to Executive on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to Executive) during any one year may not affect amounts reimbursable or provided in any subsequent year, or be subject to liquidation or exchange for another benefit. Neither the Company nor any of its employees or representatives shall have any liability to Executive with respect to Section 409A.

 

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7.14 Survival . Except as otherwise expressly provided in this Agreement, all covenants, representations and warranties, express or implied, in addition to the provisions of Sections 6 and 7 of this Agreement, shall survive the termination of this Agreement.

7.15 Indemnification and Insurance . The Company shall indemnify Executive to the full extent provided for in its corporate Bylaws and to the maximum extent that the Company indemnifies any of its other directors and senior executive officers, and he will be entitled to the protection of any insurance policies the Company may elect to maintain generally for the benefit of its directors and senior executive officers against all costs, charges, liabilities and expenses incurred or sustained by him in connection with any action, suit or proceeding to which he may be made a party by reason of his being or having been a director, officer or employee of the Company or any of its affiliates or his serving or having served any other enterprise, plan or trust as a director, officer, employee or fiduciary at the request of the Company or any of its affiliates (other than any dispute, claim or controversy arising under or relating to this Agreement (except for this Section 7.15)). The Company will enter into an indemnification agreement with Executive in the standard form that it has or will adopt for the benefit of its other directors and senior executive officers. The provisions of this Section 7.15 shall survive any termination of Executive’s employment or any termination of this Agreement.

7.16 Section 280G . In the event that it shall be determined that any payment or distribution to or for the benefit of Executive under this Agreement or under any other Company plan, contract or agreement would, but for the effect of this Section 7.16, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (collectively, such excise tax, together with any such interest or penalties, the “ Excise Tax ”), then, at the election of Executive, in the event that the after-tax value of all Payments (as defined below) to Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to Executive of the Safe Harbor Amount (as defined below), (1) the cash portions of the Payments payable to Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value (as defined below) of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount, and (2) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to Executive under any other plans shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount, and (3) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement and otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount. As used herein, (x) “ Payment ” shall mean any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable pursuant to this Agreement or otherwise, (y) “ Safe Harbor Amount ” shall mean 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code, and (z) “ Parachute Value ” of a Payment shall mean the present value as of the date of the Change in Control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code

 

13


for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. All calculations under this section shall be made reasonably by the Company and the Company’s outside auditor at the Company’s expense and at the times reasonably requested by Executive.

[signatures on next page]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Employment Agreement to be duly executed on the date and year first written above.

e.l.f. Cosmetics, Inc.

 

        By:  

/s/ Scott K. Milsten

   

/s/ Jon Fieldman

        Name:   Scott K. Milsten     Jon Fieldman
        Title:   Senior Vice President, General Counsel    

e.l.f. Beauty, Inc.

 

        By:  

/s/ Scott K. Milsten

        Name:   Scott K. Milsten
        Title:   Senior Vice President, General Counsel

 

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Exhibit 10.25

e.l.f. Beauty, Inc.

Indemnification Agreement

This Indemnification Agreement (“ Agreement ”) is made as of                          , 20     by and between e.l.f. Beauty, Inc., a Delaware corporation (the “ Company ”), and                      (“ Indemnitee ”). [This Agreement supersedes and replaces any and all previous Agreements between the Company and Indemnitee covering the subject matter of this Agreement.]

RECITALS

WHEREAS, highly competent persons have become more reluctant to serve publicly-held corporations as directors or officers or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the corporation;

WHEREAS, the Board of Directors of the Company (the “ Board ”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among United States-based corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The Amended and Restated Bylaws (the “ Bylaws ”) and the Amended and Restated Certificate of Incorporation of the Company (the “ Certificate of Incorporation ”) require indemnification of the officers and directors of the Company. Indemnitee may also be entitled to indemnification pursuant to the General Corporation Law of the State of Delaware (the “ DGCL ”). The Bylaws, the Certificate of Incorporation and the DGCL expressly provide that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification;

WHEREAS, the uncertainties relating to such insurance and to indemnification have increased the difficulty of attracting and retaining such persons;

WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company and its stockholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future;

WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified;

WHEREAS, this Agreement is a supplement to and in furtherance of the Bylaws, the Certificate of Incorporation and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder; [and]


WHEREAS, Indemnitee does not regard the protection available under the Bylaws, the Certificate of Incorporation and insurance as adequate in the present circumstances, and may not be willing to serve as an officer or director without adequate protection, and the Company desires Indemnitee to serve in such capacity. Indemnitee is willing to serve, continue to serve and take on additional service for or on behalf of the Company on the condition that he or she be so indemnified; [and]

[WHEREAS, Indemnitee is a representative of [                    ], a [                     limited partnership] (the “ Fund ”), and has certain rights to indemnification and/or insurance provided by the Fund which Indemnitee and the Fund intend to be secondary to the primary obligation of the Company to indemnify Indemnitee as provided herein, with the Company’s acknowledgement and agreement to the foregoing being a material condition to Indemnitee’s willingness to serve on the Board.]

NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:

Section 1. Services to the Company.  Indemnitee agrees to serve as a director, officer, employee or agent of the Company, as applicable, or, at the request of the Company, as a director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, trust or other enterprise, as applicable. Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or any obligation imposed by operation of law), in which event the Company shall have no obligation under this Agreement to continue Indemnitee in such position. This Agreement shall not be deemed an employment contract between the Company (or any of its subsidiaries or any Enterprise (as defined below)) and Indemnitee. Indemnitee specifically acknowledges that Indemnitee’s employment with the Company (or any of its subsidiaries or any Enterprise), if any, is at will, and the Indemnitee may be discharged at any time for any reason, with or without cause, except as may be otherwise provided in any written employment contract between Indemnitee and the Company (or any of its subsidiaries or any Enterprise), other applicable formal severance policies duly adopted by the Board, or, with respect to service as a director or officer of the Company, by the Certificate of Incorporation, the Bylaws and the DGCL. The foregoing notwithstanding, this Agreement shall continue in force after Indemnitee has ceased to serve as a director, officer, employee or agent of the Company, as applicable, or, at the request of the Company, as a director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, trust or other enterprise, as applicable, as provided in Section 16 hereof.

Section 2. Definitions. As used in this Agreement:

(a) References to “ agent ” shall mean any person who is or was a director, officer or employee of the Company or a subsidiary of the Company or other person authorized by the Company to act for the Company, to include such person serving in such capacity as a director, officer, employee, fiduciary or other official of another corporation, partnership, limited liability company, joint venture, trust or other enterprise at the request of, for the convenience of, or to represent the interests of the Company or a subsidiary of the Company.

(b) A “ Change in Control ” shall be deemed to occur upon the earliest to occur after the date of this Agreement of any of the following events:

i. Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then

 

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outstanding securities unless the change in relative Beneficial Ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors;

ii. Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 2(b)(i), 2(b)(iii) or 2(b)(iv)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board;

iii. Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty-one percent (51%) of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity;

iv. Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and

v. Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement.

For purposes of this Section 2(b), the following terms shall have the following meanings:

(A) “ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended from time to time.

(B) “ Person ” shall have the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided , however , that Person shall exclude (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company.

(C) “ Beneficial Owner ” shall have the meaning given to such term in Rule 13d-3 under the Exchange Act; provided , however , that Beneficial Owner shall exclude any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving a merger of the Company with another entity.

 

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(c) “ Corporate Status ” describes the status of a person who is or was a director, trustee, partner, managing member, officer, employee, agent or fiduciary of the Company or of any other corporation, limited liability company, partnership or joint venture, trust or other enterprise which such person is or was serving at the request of the Company.

(d) “ Disinterested Director ” shall mean a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.

(e) “ Enterprise ” shall mean the Company and any other corporation, limited liability company, partnership, joint venture, trust or other enterprise of which Indemnitee is or was serving at the request of the Company as a director, officer, trustee, partner, managing member, employee, agent or fiduciary.

(f) “ Expenses ” shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts and other professionals, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, fax transmission charges, secretarial services, any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, ERISA excise taxes and penalties, and all other disbursements, obligations or expenses of the types customarily incurred in connection with, or as a result of, prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a deponent or witness in, or otherwise participating in, a Proceeding. Expenses also shall include (i) Expenses incurred in connection with any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating to any cost bond, supersedeas bond or other appeal bond or its equivalent, and (ii) expenses incurred in connection with recovery under any directors’ and officers’ liability insurance policies maintained by the Company, regardless of whether the Indemnitee is ultimately determined to be entitled to such indemnification, advancement or Expenses or insurance recovery, as the case may be, and (iii) for purposes of Section 14(d) only, Expenses incurred by or on behalf of Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement, by litigation or otherwise. The parties agree that for the purposes of any advancement of Expenses for which Indemnitee has made written demand to the Company in accordance with this Agreement, all Expenses included in such demand that are certified by affidavit of Indemnitee’s counsel as being reasonable shall be presumed conclusively to be reasonable. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.

(g) “ Independent Counsel ” shall mean a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five (5) years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees and expenses of the Independent Counsel referred to above and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.

 

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(h) The term “ Proceeding ” shall include any threatened, pending or completed action, suit, claim, counterclaim, cross claim, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought in the right of the Company or otherwise and whether of a civil, criminal, administrative, regulatory, legislative or investigative (formal or informal) nature, including any appeal therefrom, in which Indemnitee was, is or will be involved as a party, potential party, non-party witness or otherwise by reason of the fact that Indemnitee is or was a director or officer of the Company, by reason of any action taken by him or her (or a failure to take action by him or her) or of any action (or failure to act) on his or her part while acting pursuant to his or her Corporate Status, in each case whether or not serving in such capacity at the time any liability or Expense is incurred for which indemnification, reimbursement or advancement of Expenses can be provided under this Agreement. If the Indemnitee believes in good faith that a given situation may lead to or culminate in the institution of a Proceeding, this shall be considered a Proceeding under this paragraph.

(i) Reference to “ other enterprise” shall include employee benefit plans; references to “ fines ” shall include any excise tax assessed with respect to any employee benefit plan; references to “ serving at the request of the Company ” shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he or she reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in manner “not opposed to the best interests of the Company” as referred to in this Agreement.

Section 3. Indemnity in Third-Party Proceedings.  The Company shall indemnify Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee shall be indemnified to the fullest extent permitted by applicable law against all Expenses, judgments, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines and amounts paid in settlement) actually and reasonably incurred by Indemnitee or on his or her behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee 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, in the case of a criminal Proceeding had no reasonable cause to believe that his or her conduct was unlawful. The parties hereto intend that this Agreement shall provide to the fullest extent permitted by law for indemnification in excess of that expressly permitted by statute, including, without limitation, any indemnification provided by the Certificate of Incorporation, the Bylaws, vote of its stockholders or disinterested directors or applicable law.

Section 4. Indemnity in Proceedings by or in the Right of the Company.  The Company shall indemnify Indemnitee in accordance with the provisions of this Section 4 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 4, Indemnitee shall be indemnified to the fullest extent permitted by applicable law against all Expenses actually and reasonably incurred by him or her or on his or her behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee 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. No indemnification for Expenses shall be made under this Section 4 in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudged by a court to be liable to the Company, unless and only to the extent that the Delaware Court of Chancery or any court

 

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in which the Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification.

Section 5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provisions of this Agreement, to the fullest extent permitted by applicable law and to the extent that Indemnitee is a party to (or a participant in) and is successful, on the merits or otherwise, in any Proceeding or in defense of any claim, issue or matter therein, in whole or in part, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or her in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or her or on his or her behalf in connection with or related to each successfully resolved claim, issue or matter to the fullest extent permitted by law. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.

Section 6. Indemnification for Expenses of a Witness.  Notwithstanding any other provision of this Agreement, to the fullest extent permitted by applicable law and to the extent that Indemnitee is, by reason of his or her Corporate Status, a witness or otherwise asked to participate in any aspect of a Proceeding to which Indemnitee is not a party, he or she shall be indemnified against all Expenses actually and reasonably incurred by him or her on his or her behalf in connection therewith.

Section 7. Partial Indemnification.  If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses, but not, however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.

Section 8. Additional Indemnification.

(a) Notwithstanding any limitation in Sections 3, 4 or 5, the Company shall indemnify Indemnitee to the fullest extent permitted by applicable law if Indemnitee is a party to or threatened to be made a party to or a participant in any Proceeding (including a Proceeding by or in the right of the Company to procure a judgment in its favor) against all Expenses, judgments, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines and amounts paid in settlement) actually and reasonably incurred by or on behalf of Indemnitee in connection with the Proceeding.

(b) For purposes of Section 8(a), the meaning of the phrase “to the fullest extent permitted by applicable law” shall include, but not be limited to:

i. to the fullest extent permitted by the provision of the DGCL that authorizes or contemplates additional indemnification by agreement, or the corresponding provision of any amendment to or replacement of the DGCL, and

ii. to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors.

 

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Section 9. Exclusions.  Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnification payment in connection with any claim made against Indemnitee:

(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; or

(b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law, or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “ Sarbanes-Oxley Act ”), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act); or

(c) except as provided in Section 14(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law.

Section 10. Advances of Expenses.  Notwithstanding any provision of this Agreement to the contrary (other than Section 14(d)), the Company shall advance, to the extent not prohibited by law, the Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding (or any part of any Proceeding) not initiated by Indemnitee, and such advancement shall be made within thirty (30) days after the receipt by the Company of a statement or statements requesting such advances from time to time (which shall include invoices received by the Indemnitee in connection with such Expenses but, in the case of invoices in connection with legal services, any references to legal work performed or to expenditures made that would cause Indemnitee to waive any privilege accorded by applicable law shall not be so included), whether prior to or after final disposition of any Proceeding. Advances shall be unsecured and interest free. Advances shall be made without regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement. In accordance with Section 14(d), advances shall include any and all reasonable Expenses incurred pursuing an action to enforce this right of advancement, including Expenses incurred preparing and forwarding statements to the Company to support the advances claimed. The Indemnitee shall qualify for advances upon the execution and delivery to the Company of this Agreement, which shall constitute an undertaking providing that the Indemnitee undertakes to repay the amounts advanced (without interest) to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company. No other form of undertaking shall be required other than the execution of this Agreement. This Section 10 shall not apply to any claim made by Indemnitee for which indemnity is excluded pursuant to Section 9.

 

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Section 11. Procedure for Notification and Defense of Claim.

(a) Indemnitee shall notify the Company in writing of any matter with respect to which Indemnitee intends to seek indemnification or advancement of Expenses hereunder as soon as reasonably practicable following the receipt by Indemnitee of written notice thereof or Indemnitee’s becoming aware thereof. The written notification to the Company shall include a description of the nature of the Proceeding and the facts underlying the Proceeding, in each case to the extent known to Indemnitee. To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification following the final disposition of such Proceeding. The failure by Indemnitee to notify the Company hereunder will not relieve the Company from any liability which it may have to Indemnitee hereunder or otherwise than under this Agreement, and any delay in so notifying the Company shall not constitute a waiver by Indemnitee of any rights under this Agreement, except to the extent (solely with respect to the indemnity hereunder) that such failure or delay materially prejudices the Company. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board in writing that Indemnitee has requested indemnification.

(b) The Company will be entitled to participate in the Proceeding at its own expense.

(c) The Company shall not settle any Proceeding (in whole or in part) if such settlement would impose any Expense, judgment, liability, fine, penalty or limitation on Indemnitee which Indemnitee is not entitled to be indemnified hereunder without the Indemnitee’s prior written consent.

Section 12. Procedure Upon Application for Indemnification.

(a) Upon written request by Indemnitee for indemnification pursuant to Section 11(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, or (D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by or on behalf of Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied.

 

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(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising him or her of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided , however , that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or the Delaware Court has determined that such objection is without merit. If, within twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 11(a) hereof and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).

(c) If the Company disputes a portion of the amounts for which indemnification is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

Section 13. Presumptions and Effect of Certain Proceedings.

(a) In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 11(a) of this Agreement, and the Company shall, to the fullest extent not prohibited by law, have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.

(b) Subject to Section 14(e), if the person, persons or entity empowered or selected under Section 12 of this Agreement to determine whether Indemnitee is entitled to indemnification shall

 

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not have made a determination within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall, to the fullest extent not prohibited by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided , however , that such sixty (60)-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided , further , that the foregoing provisions of this Section 13(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 12(a) of this Agreement and if (A) within fifteen (15) days after receipt by the Company of the request for such determination the Board has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) of this Agreement.

(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.

(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors or officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. The provisions of this Section 13(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement. Whether or not the foregoing provisions of this Section 13(d) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the Company.

(e) The knowledge and/or actions, or failure to act, of any director, officer, trustee, partner, managing member, fiduciary, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.

Section 14. Remedies of Indemnitee.

(a) Subject to Section 14(e), in the event that (i) a determination is made pursuant to Section 12 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 10 of this Agreement, (iii) no

 

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determination of entitlement to indemnification shall have been made pursuant to Section 12(a) of this Agreement within ninety (90) days after receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to Section 5, 6 or 7 or the last sentence of Section 12(a) of this Agreement within ten (10) days after receipt by the Company of a written request therefor, (v) payment of indemnification pursuant to Section 3, 4 or 8 of this Agreement is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification, or (vi) in the event that the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or Proceeding designed to deny, or to recover from, the Indemnitee the benefits provided or intended to be provided to the Indemnitee hereunder, Indemnitee shall be entitled to an adjudication by a court of his or her entitlement to such indemnification or advancement of Expenses. Alternatively, Indemnitee, at his or her option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an award in arbitration within one hundred eighty (180) days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 14(a); provided , however , that the foregoing clause shall not apply in respect of a proceeding brought by Indemnitee to enforce his or her rights under Section 5 of this Agreement. The Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration.

(b) In the event that a determination shall have been made pursuant to Section 12(a) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 14 shall be conducted in all respects as a de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 14 the Company shall have the burden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.

(c) If a determination shall have been made pursuant to Section 12(a) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 14, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.

(d) The Company shall, to the fullest extent not prohibited by law, be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 14 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement. It is the intent of the Company that, to the fullest extent permitted by law, the Indemnitee not be required to incur legal fees or other Expenses associated with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement by litigation or otherwise because the cost and expense thereof would substantially detract from the benefits intended to be extended to the Indemnitee hereunder. The Company shall, to the fullest extent permitted by law, indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within ten (10) days after receipt by the Company of a written request therefor) advance, to the extent not prohibited by law, such Expenses to Indemnitee, which are incurred by or on behalf of Indemnitee in connection with any action brought by Indemnitee for indemnification or advancement of Expenses from the Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company if, in the case of indemnification, Indemnitee is wholly successful on the underlying claims; if Indemnitee is not wholly successful on the underlying claims, then such indemnification shall be only to the extent Indemnitee is successful on such underlying claims or otherwise as permitted by law, whichever is greater.

 

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(e) Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement of Indemnitee to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding.

Section 15. Non-exclusivity; Survival of Rights; Insurance; Subrogation.

(a) The rights of indemnification and to receive advancement of Expenses as provided by this Agreement (i) shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Certificate of Incorporation, the Bylaws, any agreement, a vote of stockholders or a resolution of directors or otherwise, and (ii) shall be interpreted independently of, and without reference to, any other such rights to which Indemnitee may at any time be entitled. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in his or her Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in Delaware law, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under the Bylaws, the Certificate of Incorporation and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.

(b) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees or agents of the Enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such director, officer, employee or agent under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of such claim or of the commencement of a Proceeding, as the case may be, to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies.

(c) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.

(d) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable (or for which advancement is provided hereunder) hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.

(e) [The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, trustee, partner,

 

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managing member, fiduciary, employee or agent of any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such other corporation, limited liability company, partnership, joint venture, trust or other enterprise.]/[ The Company hereby acknowledges that Indemnitee has certain rights to indemnification, advancement of expenses and/or insurance provided by the Fund and certain of its affiliates (collectively, the “ Fund Indemnitors ”). The Company hereby agrees (i) that it is the indemnitor of first resort (i.e., its obligations to Indemnitee are primary and any obligation of the Fund Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee are secondary), (ii) that it shall be required to advance the full amount of Expenses incurred by Indemnitee and shall be liable for the full amount of all Expenses, judgments, fines and amounts paid in settlement to the extent legally permitted and as required by the Certificate of Incorporation or Bylaws (or any agreement between the Company and Indemnitee), without regard to any rights Indemnitee may have against the Fund Indemnitors, and (iii) that it irrevocably waives, relinquishes and releases the Fund Indemnitors from any and all claims against the Fund Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Fund Indemnitors on behalf of Indemnitee with respect to any claim for which Indemnitee has sought indemnification from the Company shall affect the foregoing and the Fund Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of Indemnitee against the Company. The Company and Indemnitee agree that the Fund Indemnitors are express third party beneficiaries of the terms hereof.]

Section 16. Duration of Agreement.  This Agreement shall continue until and terminate upon the later of: (a) ten (10) years after the date that Indemnitee shall have ceased to serve as a director, officer, employee or agent of the Company, as applicable, or, at the request of the Company, as a director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, trust or other enterprise, as applicable, or (b) one (1) year after the final termination of any Proceeding then pending in respect of which Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and of any proceeding commenced (including any appeal thereof) by Indemnitee pursuant to Section 14 of this Agreement relating thereto. The indemnification and advancement of expenses rights provided by or granted pursuant to this Agreement shall be binding upon and be enforceable by the parties hereto and their respective successors and assigns (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent of the Company or of any other Enterprise, and shall inure to the benefit of Indemnitee and his or her spouse, assigns, heirs, devisees, executors and administrators and other legal representatives. The Company shall require and shall cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company to, by written agreement, expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.

Section 17. Severability.  If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement

 

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(including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.

Section 18. Enforcement.

(a) The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director or officer of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a director or officer of the Company.

(b) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof; provided , however , that this Agreement is a supplement to and in furtherance of the Certificate of Incorporation, the Bylaws, any directors and officers liability insurance maintained by the Company and applicable law, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder and provided further , that the provisions of this Agreement shall apply retroactively as of the date such Indemnitee began service as a director, officer, employee or agent of the Company, as applicable, or, at the request of the Company, as a director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, trust or other enterprise, as applicable.

Section 19. Modification and Waiver . No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a continuing waiver.

Section 20. Notice by Indemnitee . Indemnitee agrees promptly to notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company shall not relieve the Company of any obligation which it may have to the Indemnitee under this Agreement or otherwise.

Section 21. Notices.  All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, (b) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed, (c) mailed by reputable overnight courier and receipted for by the party to whom said notice or other communication shall have been directed, or (d) sent by facsimile transmission, with receipt of oral confirmation that such transmission has been received:

(a) If to Indemnitee, at the address indicated on the signature page of this Agreement, or such other address as Indemnitee shall provide to the Company.

 

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(b) If to the Company to:

General Counsel

e.l.f. Beauty, Inc.

570 10 th Street

Oakland, CA 94607

Facsimile: ###

or to any other address as may have been furnished to Indemnitee by the Company.

Section 22. Contribution.  To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by or on behalf of Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).

Section 23. Applicable Law and Consent to Jurisdiction.  This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. Except with respect to any arbitration commenced by Indemnitee pursuant to Section 14(a) of this Agreement, the Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Chancery Court of the State of Delaware (the “ Delaware Court ”), and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of or in connection with this Agreement, (iii) appoint, to the extent such party is not otherwise subject to service of process in the State of Delaware, irrevocably The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, as its agent in the State of Delaware for acceptance of legal process in connection with any such action or proceeding against such party with the same legal force and validity as if served upon such party personally within the State of Delaware, (iv) waive any objection to the laying of venue of any such action or proceeding in the Delaware Court, and (v) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.

Section 24. Identical Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.

Section 25. Miscellaneous.  The headings of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.

 

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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year first above written.

 

e.l.f. Beauty, Inc.     Indemnitee
By:  

 

   

 

Name:       Name:   
Title:       Address:   

 

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Exhibit 21.1

List of Significant Subsidiaries of

e.l.f. Beauty, Inc.

 

Subsidiary

       

Jurisdiction of Incorporation or Organization

e.l.f. Cosmetics, Inc.       Delaware
J.A. China Holdings, LLC (a wholly owned subsidiary of e.l.f. Cosmetics, Inc.)       Delaware
J.A. Cosmetics Trading (Shanghai) Co., Ltd. (a wholly owned subsidiary of J.A. China Holdings, LLC)       People’s Republic of China – Wholly Foreign-Owned Enterprise

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the use in this Registration Statement on Form S-1 of our report dated April 28, 2016, relating to the consolidated financial statements of e.l.f. Beauty, Inc. and subsidiaries (formerly J.A. Cosmetics Holdings, Inc. and subsidiaries) appearing in the Prospectus, which is a part of this Registration Statement.

We also consent to the reference to us under the heading “Experts” in such Prospectus.

/s / DELOITTE & TOUCHE LLP

San Francisco, California

August 26, 2016

Exhibit 23.3

 

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Nickolaus R. Feimer

317 Delmar Way

San Mateo, CA 94403

July 11, 2016

Erin Daley

Vice President Brand

e.l.f. Cosmetics, Inc.

570 10 th St.

Oakland, CA 94607

Subject: Consent of Calimesa Consulting Partners, LLC

Calimesa Consulting Partners, LLC (“Calimesa”) prepared a market study dated October 2015 for e.l.f. Beauty, Inc. Calimesa consents to the use of data from such study in the Registration Statement on Form S-1 and related prospectus of e.l.f. Beauty, Inc. and to the reference in the prospectus to Calimesa’s name in connection therewith.

Dated: July 11, 2016

Calimesa Consulting Partners, LLC

 

By:   

/s/ Nickolaus R. Feimer

Name:   

Nickolaus R. Feimer

Title:   

Managing Partner

Exhibit 23.4

 

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Consent of MetrixLab

MetrixLab prepared a market study dated May 2015 for e.l.f. Beauty, Inc. MetrixLab consents to the use of data from such study in the Registration Statement on Form S-1 and related prospectus of e.l.f. Beauty, Inc. and to the reference in the prospectus to MetrixLab’s name in connection therewith.

Dated: July 13, 2016

 

MetrixLab
By:   /s/ Philippe Marx
Name:   Philippe Marx
Title:   Vice President Finance and Operations

 

MetrixLab US, Inc:    •    25A Vreeland Rd. Suite 305    •    Florham Park, NJ 07932