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Exhibit 2.1
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is dated as of the 27th day of March,
2001 by and between PHOTOMEDEX, INC., a Delaware corporation with its principal
office at 0 Xxxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxx, XX 00000 (the "Company"),
and the several purchasers named in the attached Exhibit A (individually, a
"Purchaser" and collectively, the "Purchasers").
WHEREAS, the Company desires to issue and sell to the Purchasers an
aggregate of up to 3,000,000 shares (the "Shares") of the authorized but
unissued shares of common stock, $.01 par value per share, of the Company (the
"Common Stock"); and
WHEREAS, the Purchasers, severally, wish to purchase the Shares on the
terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual agreements,
representations, warranties and covenants herein contained, the parties hereto
agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following respective meanings:
(a) "Affiliate" of a party, means any corporation or other
business entity controlled by, controlling or under common control with such
party. For this purpose "control" shall mean direct or indirect beneficial
ownership of fifty percent (50%) or more of the voting or income interest in
such corporation or other business entity.
(b) "Closing Date" means the date of the Closing.
(c) "Exchange Act" means the Securities Exchange Act of 1934,
as amended, and all of the rules and regulations promulgated there under.
(d) "Registration Rights Agreement" shall mean that certain
Registration Rights Agreement, dated as of the date hereof, among the Company
and the Purchasers.
(e) "Majority Purchasers" shall mean Purchasers, which, at any
given time, hold greater than fifty percent (50%) of the voting power of the
outstanding Shares.
(f) "SEC" shall mean the Securities and Exchange Commission.
(g) "Securities Act" shall mean the Securities Act of 1933, as
amended, and all of the rules and regulations promulgated there under.
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2. Purchase and Sale of Shares.
2.1 Purchase and Sale. Subject to and upon the terms and
conditions set forth in this Agreement, the Company agrees to issue and sell to
each Purchaser, and each Purchaser, severally, hereby agrees to purchase from
the Company, at the Closing, the number of shares of Common Stock set forth
opposite the name of such Purchaser under the heading "Number of Shares to be
Purchased" on Exhibit A hereto, at a purchase price of $5.00 per share. The
total purchase price payable by each Purchaser for the number of shares of
Common Stock that such Purchaser is hereby agreeing to purchase is set forth
opposite the name of such Purchaser under the heading "Purchase Price" on
Exhibit A hereto. The aggregate purchase price payable by the Purchasers to the
Company for all of the Shares shall be $6,150,000.
2.2 Closing. The closing of the transactions contemplated
under this Agreement (the "Closing") shall take place at the offices of Xxxx,
Forward, Xxxxxxxx & Scripps LLP, 0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, on the second business day after the Company shall have given
written notice to (the "Closing Notice") the Purchasers that all of the
conditions precedent set forth in Section 6.1 have been satisfied in full or at
such other location, date and time as may be agreed upon between the Purchasers
and the Company. At the Closing, the Company shall deliver to each Purchaser a
single stock certificate, registered in the name of such Purchaser, representing
the number of shares of Common Stock purchased by such Purchaser, against
payment of the purchase price therefore by wire transfer of immediately
available funds to such account or accounts as the Company shall designate in
writing.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to each of the Purchasers as follows:
3.1 Incorporation. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and is qualified to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification, except where the failure to so qualify would not have a material
adverse effect upon the Company. The Company has all requisite corporate power
and authority to carry on its business as now conducted.
3.2 Capitalization. The authorized capital stock of the
Company consists of 50,000,000 shares of Common Stock, of 17,802,283 shares are
outstanding on the date hereof. Except as set forth in Schedule 3.2 hereto,
there are no existing options, warrants, calls, preemptive (or similar) rights,
subscriptions or other rights, agreements, arrangements or commitments of any
character obligating the Company to issue, transfer or sell, or cause to be
issued, transferred or sold, any shares of the capital stock of the Company or
other equity interests in the Company or any securities convertible into or
exchangeable for such shares of capital stock or other equity interests, and
there are no outstanding contractual obligations of the Company to repurchase,
redeem or otherwise acquire any shares of its capital stock or other equity
interests.
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3.3 Authorization. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution, delivery and performance of this Agreement and the
Registration Rights Agreement and the consummation of the transactions
contemplated herein and therein has been taken. When executed and delivered by
the Company, each of this Agreement and the Registration Rights Agreement shall
constitute the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such may be limited
by bankruptcy, insolvency, reorganization or other laws affecting creditors'
rights generally and by general equitable principles. The Company has all
requisite corporate power to enter into this Agreement and the Registration
Rights Agreement and to carry out and perform its obligations under the terms of
this Agreement, and the Registration Rights Agreement.
3.4 Valid Issuance of the Shares. The Shares being purchased
by the Purchasers hereunder will, upon issuance pursuant to the terms hereof, be
duly authorized and validly issued, fully paid and nonassessable.
3.5 Financial Statements. The Company has furnished to each
Purchaser its audited Statements of Operations, Stockholders' Equity and Cash
Flows for the fiscal year ended (most recent), its audited Balance Sheet as of
(most recent audit), its unaudited Statements of Operations, Stockholders'
Equity and Cash Flows for the period from (through most recent Form 10-Q), and
its unaudited Balance Sheet as of (most recent 10-Q). All such financial
statements are hereinafter referred to collectively as the "Financial
Statements." The Financial Statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis during
the periods involved, and fairly present, in all material respects, the
financial position of the Company and the results of its operations as of the
date and for the periods indicated thereon, except that the unaudited financial
statements may not be in accordance with generally accepted accounting
principles because of the absence of footnotes normally contained therein and
are subject to normal year-end audit adjustments which, individually, and in the
aggregate, will not be material. Since (most recent Form 10-Q), to the Company's
knowledge, there has been no material adverse change (actual or threatened) in
the assets, liabilities (contingent or other), affairs, operations, prospects or
condition (financial or other) of the Company.
3.6 SEC Documents. The Company has furnished to each
Purchaser, a true and complete copy of the Company's Annual Report on Form 10-K
for the (most recent year), the Company's Quarterly Report on Form 10-Q for the
nine months ended (most recent Form 10-Q), and any other statement, report,
registration statement (other than registration statements on Form S-8) or
definitive proxy statement filed by the Company with the SEC during the period
commencing (date of most recent Form 10-Q) and ending on the date hereof. The
Company will, promptly upon the filing thereof, also furnish to each Purchaser
all statements, reports (including, without limitation, Quarterly Reports on
Form 10-Q and Current Reports on Form 8-K), registration statements and
definitive proxy statements filed by the Company with the SEC during the period
commencing on the date hereof and ending on the Closing Date (all such materials
required to be furnished to each Purchaser pursuant to this sentence or pursuant
to the next preceding sentence of this Section 3.6 being called, collectively,
the "SEC Documents"). As of their respective filing dates, the SEC Documents
complied or will comply in all material
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respects with the requirements of the Exchange Act or the Securities Act, as
applicable, and none of the SEC Documents contained or will contain any untrue
statement of a material fact or omitted or will omit to state a material fact
required to be stated therein or necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading, as of their respective filing dates, except to the extent corrected
by a subsequently filed SEC Document.
3.7 Consents. All consents, approvals, orders and
authorizations required on the part of the Company in connection with the
execution, delivery or performance of this Agreement and the Registration Rights
Agreement and the consummation of the transactions contemplated herein, other
than for Regulation D and state blue sky filings with respect to the sale of
shares, and therein have been obtained and will be effective as of the Closing
Date.
3.8 No Conflict. The execution and delivery of this Agreement
and the Registration Rights Agreement by the Company and the consummation of the
transactions contemplated hereby and thereby will not conflict with or result in
any violation of or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or to a loss of a material benefit under (i) any provision of the
Certificate of Incorporation or By-laws of the Company or (ii) any agreement or
instrument, permit, franchise, license, judgment, order, statute, law,
ordinance, rule or regulations, applicable to the Company or its respective
properties or assets.
3.9 Brokers or Finders. Except for Pacific Growth Equities,
Inc., the Company has not dealt with any broker or finder in connection with the
transactions contemplated by this Agreement, and, except for certain fees and
expenses payable by the Company to Pacific Growth Equities, Inc., the Company
has not incurred, and shall not incur, directly or indirectly, any liability for
any brokerage or finders' fees or agents commissions or any similar charges in
connection with this Agreement or any transaction contemplated hereby.
3.10 NASDAQ National Market. The Common Stock is listed on the
NASDAQ National Market System, and there are no proceedings to revoke or suspend
such listing and the company has no knowledge of any fact that would give rise
to a delisting.
3.11 Absence of Litigation. There is no action, suit or
proceeding or, to the Company's knowledge, any investigation, pending, or to the
Company's knowledge, threatened by or before any governmental body against the
Company and in which an unfavorable outcome, ruling or finding in any said
matter, or for all matters taken as a whole, might have a material adverse
effect on the Company. The foregoing includes, without limitation, any such
action, suit, proceeding or investigation that questions this Agreement or the
Registration Rights Agreement or the right of the Company to execute, deliver
and perform under same.
4. Representations and Warranties of the Purchasers. Each Purchaser
severally for itself, and not jointly with the other Purchasers, represents and
warrants to the Company as follows:
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4.1 Authorization. All action on the part of such Purchaser
and, if applicable, its officers, directors and shareholders necessary for the
authorization, execution, delivery and performance of this Agreement and the
Registration Rights Agreement and the consummation of the transactions
contemplated herein and therein has been taken. When executed and delivered,
each of this Agreement and the Registration Rights Agreement will constitute the
legal, valid and binding obligation of such Purchaser, enforceable against such
Purchaser in accordance with its terms, except as such may be limited by
bankruptcy, insolvency, reorganization or other laws affecting creditors' rights
generally and by general equitable principles. Such Purchaser has all requisite
corporate power to enter into each of this Agreement and the Registration Rights
Agreement and to carry out and perform its obligations under the terms of this
Agreement and the Registration Rights Agreement.
4.2 Purchase Entirely for Own Account. Such Purchaser is
acquiring the Shares being purchased by it hereunder for investment, for its own
account, and not for resale or with a view to distribution thereof in violation
of the Securities Act.
4.3 Investor Status; Etc. Such Purchaser certifies and
represents to the Company that at the time such Purchaser acquires any of the
Shares, such Purchaser will be an "Accredited Investor" as defined in Rule 501
of Regulation D promulgated under the Securities Act and was not organized for
the purpose of acquiring the Shares. Such Purchaser's financial condition is
such that it is able to bear the risk of holding the Shares for an indefinite
period of time and the risk of loss of its entire investment. Such Purchaser has
been afforded the opportunity to ask questions of and receive answers from the
management of the Company concerning this investment and has sufficient
knowledge and experience in investing in companies similar to the Company in
terms of the Company's stage of development so as to be able to evaluate the
risks and merits of its investment in the Company.
4.4 Shares Not Registered. Such Purchaser understands that the
Shares have not been registered under the Securities Act, by reason of their
issuance by the Company in a transaction exempt from the registration
requirements of the Securities Act, and that the Shares must continue to be held
by such Purchaser unless a subsequent disposition thereof is registered under
the Securities Act or is exempt from such registration. The Purchaser
understands that the exemptions from registration afforded by Rule 144 (the
provisions of which are known to it) promulgated under the Securities Act depend
on the satisfaction of various conditions, and that, if applicable, Rule 144 may
afford the basis for sales only in limited amounts.
4.5 No Conflict. The execution and delivery of this Agreement
and the Registration Rights Agreement by such Purchaser and the consummation of
the transactions contemplated hereby and thereby will not conflict with or
result in any violation of or default by such Purchaser (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to a loss of a material
benefit under (i) any provision of the organizational documents of such
Purchaser or (ii) any agreement or instrument, permit, franchise, license,
judgment, order, statute, law, ordinance, rule or regulations, applicable to
such Purchaser or its respective properties or assets.
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4.6 Brokers. Such Purchaser has not retained, utilized or been
represented by any broker or finder in connection with the transactions
contemplated by this Agreement.
4.7 Consents. All consents, approvals, orders and
authorizations required on the part of such Purchaser in connection with the
execution, delivery or performance of this Agreement and the consummation of the
transactions contemplated herein have been obtained and are effective as of the
Closing Date.
5. Conditions Precedent.
5.1. Conditions to the Obligation of the Purchasers to
Consummate the Closing. The obligation of each Purchaser to consummate the
Closing and to purchase and pay for the Shares being purchased by it pursuant to
this Agreement is subject to the satisfaction of the following conditions
precedent:
(a) The representations and warranties contained herein of the
Company shall be true and correct on and as of the Closing Date with the same
force and effect as though made on and as of the Closing Date (it being
understood and agreed by each Purchaser that, in the case of any representation
and warranty of the Company contained herein which is not hereinabove qualified
by application thereto of a materiality standard, such representation and
warranty need be true and correct only in all material respects in order to
satisfy as to such representation or warranty the condition precedent set forth
in the foregoing provisions of this Section 5.1(a)).
(b) The Registration Rights Agreement shall have been executed
and delivered by the Company.
(c) The Company shall not have been adversely affected in any
material way prior to the Closing Date; and the Company shall have performed all
obligations and conditions herein required to be performed or observed by the
Company on or prior to the Closing Date.
(d) No proceeding challenging this Agreement or the
transactions contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the Closing, shall have been instituted before any court,
arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by the
Purchasers shall not be prohibited by any law or governmental order or
regulation. All necessary consents, approvals, licenses, permits, orders and
authorizations of, or registrations, declarations and filings with, any
governmental or administrative agency or of any other person with respect to any
of the transactions contemplated hereby, other than for Regulation D and state
blue sky filings with respect to the sale of the shares, shall have been duly
obtained or made and shall be in full force and effect.
(f) All instruments and corporate proceedings in connection
with the transactions contemplated by this Agreement to be consummated at the
Closing shall be satisfactory in form and substance to such Purchaser, and such
Purchaser shall have received
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copies (executed or certified, as may be appropriate) of all documents which
such Purchaser may have reasonably requested in connection with such
transactions.
5.2. Conditions to the Obligation of the Company to Consummate the
Closing. The obligation of the Company to consummate the Closing and to issue
and sell to each of the Purchasers the Shares to be purchased by it at the
Closing is subject to the satisfaction of the following conditions precedent:
(a) The representations and warranties contained herein of
such Purchaser shall be true and correct on and as of the Closing Date with the
same force and effect as though made on and as of the Closing Date (it being
understood and agreed by the Company that, in the case of any representation and
warranty of each Purchaser contained herein which is not hereinabove qualified
by application thereto of a materiality standard, such representation and
warranty need be true and correct only in all material respects in order to
satisfy as to such representation or warranty the condition precedent set forth
in the foregoing provisions of this Section 5.2(a).
(b) The Registration Rights Agreement shall have been executed
and delivered by each Purchaser.
(c) The Purchasers shall have performed all obligations and
conditions herein required to be performed or observed by the Purchasers on or
prior to the Closing Date.
(d) No proceeding challenging this Agreement or the
transactions contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the Closing, shall have been instituted before any court,
arbitrator or governmental body, agency or official and shall be pending.
(e) The sale of the Shares by the Company shall not be
prohibited by any law or governmental order or regulation. All necessary
consents, approvals, licenses, permits, orders and authorizations of, or
registrations, declarations and filings with, any governmental or administrative
agency or of any other person with respect to any of the transactions
contemplated hereby, other than for Regulation D and state blue sky filings with
respect to the sale of the shares, shall have been duly obtained or made and
shall be in full force and effect.
(f) Each of the Purchasers shall have executed and delivered
to the Company a Purchaser's Questionnaire, in the form attached hereto as
Exhibit B, pursuant to which each such Purchaser shall provide information
necessary to confirm each such Purchaser's status as an "accredited investor"
(as such term is defined in Rule 501 promulgated under the Securities Act)."
(g) Each of the other Purchasers shall have purchased, in
accordance with this Agreement, the number of shares of Common Stock set forth
opposite its name under the heading "Number of Shares to be Purchased."
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(h) All instruments and corporate proceedings in connection
with the transactions contemplated by this Agreement to be consummated at the
Closing shall be satisfactory in form and substance to the Company, and the
Company shall have received counterpart originals, or certified or other copies
of all documents, including without limitation records of corporate or other
proceedings, which it may have reasonably requested in connection therewith.
6. Transfer, Legends.
6.1. Securities Law Transfer Restrictions. No Purchaser shall
sell, assign, pledge, transfer or otherwise dispose or encumber any of the
Shares being purchased by it hereunder, except (i) pursuant to an effective
registration statement under the Securities Act or (ii) pursuant to an available
exemption from registration under the Securities Act and applicable state
securities laws and, if requested by the Company, upon delivery by such
Purchaser of an opinion of counsel reasonably satisfactory to the Company to the
effect that the proposed transfer is exempt from registration under the
Securities Act and applicable state securities laws. Any transfer or purported
transfer of the Shares in violation of this Section 6.1 shall be voidable by the
Company. The Company shall not register any transfer of the Shares in violation
of this Section 6.1. The Company may, and may instruct any transfer agent for
the Company, to place such stop transfer orders as may be required on the
transfer books of the Company in order to ensure compliance with the provisions
of this Section 6.1.
6.2. Legends. Each certificate requesting any of the Shares
shall be endorsed with the legends set forth below, and each Purchaser covenants
that, except to the extent such restrictions are waived by the Company, it shall
not transfer the shares represented by any such certificate without complying
with the restrictions on transfer described in this Agreement and the legends
endorsed on such certificate:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED
TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION
UNDER SAID ACT AND, IF REQUESTED BY THE COMPANY, UPON DELIVERY OF AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT THE PROPOSED TRANSFER IS
EXEMPT FROM SAID ACT."
7. Termination; Liabilities Consequent Thereon. This Agreement may be
terminated and the transactions contemplated hereunder abandoned at any time
prior to the Closing only as follows:
(a) by the Purchasers, upon notice to the Company if the
conditions set forth in Section 5.1 shall not have been satisfied on or prior to
April 2, 2001, or
(b) by the Company, upon notice to the Purchasers if the
conditions set forth in Section 5.2 shall not have been satisfied on or prior to
April 2, 2001, or
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(c) at any time by mutual agreement of the Company and the
Purchasers; or
(d) by the Purchasers, if there has been any breach of any
representation or warranty or any material breach of any covenant of the Company
contained herein and the same has not been cured within 15 days after notice
thereof, (it being understood and agreed by each Purchaser that, in the case of
any representation or warranty of the Company contained herein which is not
hereinabove qualified by application thereto of a materiality standard, such
representation or warranty will be deemed to have been breached for purposes of
this Section 7.1(d) only if such representation or warranty was not true and
correct in all material respects at the time such representation or warranty was
made by the Company); or
(e) by the Company, if there has been any breach of any
representation, warranty or any material breach of any covenant of any Purchaser
contained herein and the same has not been cured within 15 days after notice
thereof (it being understood and agreed by the Company that, in the case of any
representation and warranty of the Purchaser contained herein which is not
hereinabove qualified by application thereto of a materiality standard, such
representation or warranty will be deemed to have been breached for purposes of
this Section 7.1(e) only if such representation or warranty was not true and
correct in all material respects at the time such representation or warranty was
made by such Purchaser).
Any termination pursuant to this Section 7 shall be without liability
on the part of any party, unless such termination is the result of a material
breach of this Agreement by a party to this Agreement in which case such
breaching party shall remain liable for such breach notwithstanding any
termination of this Agreement.
8. Miscellaneous Provisions.
8.1 Public Statements or Releases. None of the parties to this
Agreement shall make, issue, or release any announcement, whether to the public
generally, or to any of its suppliers or customers, with respect to this
Agreement or the transactions provided for herein, or make any statement or
acknowledgment of the existence of, or reveal the status of, this Agreement or
the transactions provided for herein, without the prior consent of the other
parties, which shall not be unreasonably withheld or delayed, provided, that
nothing in this Section 8.1 shall prevent any of the parties hereto from making
such public announcements as it may consider necessary in order to satisfy its
legal obligations, but to the extent not inconsistent with such obligations, it
shall provide the other parties with an opportunity to review and comment on any
proposed public announcement before it is made.
8.2 Further Assurances. Each party agrees to cooperate fully
with the other party and to execute such further instruments, documents and
agreements and to give such further written assurances, as may be reasonably
requested by the other party to better evidence and reflect the transactions
described herein and contemplated hereby, and to carry into effect the intents
and purposes of this Agreement.
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8.3 Rights Cumulative. Each and all of the various rights,
powers and remedies of the parties shall be considered to be cumulative with and
in addition to any other rights, powers and remedies which such parties may have
at law or in equity in the event of the breach of any of the terms of this
Agreement. The exercise or partial exercise of any right, power or remedy shall
neither constitute the exclusive election thereof nor the waiver of any other
right, power or remedy available to such party.
8.4 Pronouns. All pronouns or any variation thereof shall be
deemed to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person, persons, entity or entities may require.
8.5 Notices.
(a) Any notices, reports or other correspondence (hereinafter
collectively referred to as "correspondence") required or permitted to be given
hereunder shall be sent by postage prepaid first class mail, courier or telecopy
or delivered by hand to the party to whom such correspondence is required or
permitted to be given hereunder. The date of giving any notice shall be the date
of its actual receipt.
(b) All correspondence to the Company shall be addressed as
follows:
PhotoMedex, Inc.
0 Xxxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X'Xxxxxxx, President
Telecopier: (000) 000-0000
with a copy to:
Xxxx, Forward, Xxxxxxxx & Scripps LLP
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telecopier: (000) 000-0000
(c) All correspondence to any Purchaser shall be sent to such
Purchaser at the address set forth in Exhibit A.
(d) Any entity may change the address to which correspondence
to it is to be addressed by notification as provided for herein.
8.6 Captions. The captions and paragraph headings of this Agreement are
solely for the convenience of reference and shall not affect its interpretation.
8.7 Severability. Should any part or provision of this Agreement be
held unenforceable or in conflict with the applicable laws or regulations of any
jurisdiction, the
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invalid or unenforceable part or provisions shall be replaced with a provision
which accomplishes, to the extent possible, the original business purpose of
such part or provision in a valid and enforceable manner, and the remainder of
this Agreement shall remain binding upon the parties hereto.
8.8 Governing Law; Injunctive Relief.
(a) This Agreement shall be governed by and construed in
accordance with the internal and substantive laws of Delaware and without regard
to any conflicts of laws concepts which concepts, which would apply the
substantive law of some other jurisdiction.
(b) Each of the parties hereto acknowledges and agrees that
damages will not be an adequate remedy for any material breach or violation of
this Agreement if such material breach or violation would cause immediate and
irreparable harm (an "Irreparable Breach"). Accordingly, in the event of a
threatened or ongoing Irreparable Breach, each party hereto shall be entitled to
seek, in any state or federal court in the State of Massachusetts Delaware,
equitable relief of a kind appropriate in light of the nature of the ongoing or
threatened Irreparable Breach, which relief may include, without limitation,
specific performance or injunctive relief; provided, however, that if the party
bringing such action is unsuccessful in obtaining the relief sought, the moving
party shall pay the non-moving party's reasonable costs, including attorney's
fees, incurred in connection with defending such action. Such remedies shall not
be the parties' exclusive remedies, but shall be in addition to all other
remedies provided in this Agreement.
8.9 Waiver. No waiver of any term, provision or condition of this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be, or be construed as, a further or continuing waiver of any such
term, provision or condition or as a waiver of any other term, provision or
condition of this Agreement.
8.10 Expenses. Each party will bear its own costs and expenses in
connection with this Agreement.
8.11 Assignment. The rights and obligations of the parties hereto shall
inure to the benefit of and shall be binding upon the authorized successors and
permitted assigns of each party. Neither party may assign its rights or
obligations under this Agreement or designate another person (i) to perform all
or part of its obligations under this Agreement or (ii) to have all or part of
its rights and benefits under this Agreement, in each case without the prior
written consent of the other party. In the event of any assignment in accordance
with the terms of this Agreement, the assignee shall specifically assume and be
bound by the provisions of the Agreement by executing and agreeing to an
assumption agreement reasonably acceptable to the other party.
8.12 Survival. The respective representations and warranties given by
the parties hereto, and the other covenants and agreements contained herein,
shall survive the Closing Date and the consummation of the transactions
contemplated herein for a period of two years, without regard to any
investigation made by any party.
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8.13 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto respecting the subject matter hereof and supersedes
all prior agreements, negotiations, understandings, representations and
statements respecting the subject matter hereof, whether written or oral. No
modification, alteration, waiver or change in any of the terms of this Agreement
shall be valid or binding upon the parties hereto unless made in writing and
duly executed by the Company and the Majority Purchasers.
8.14 Counterparts. This Agreement may be executed in a number of
counterparts, each of which together, shall for all purposes constitute one
Agreement, binding on all of the parties hereto, notwithstanding that all such
parties have not signed the same counterpart.
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IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase
Agreement under seal as of the day and year first above written.
PhotoMedex, Inc.
By: _____________________________
Name: Xxxxxx XxXxxxx
Title: Chief Financial Officer
THE PURCHASER'S SIGNATURE TO THE INVESTOR QUESTIONNAIRE DATED EVEN DATE HEREWITH
SHALL CONSTITUTE THE PURCHASER'S SIGNATURE TO THIS STOCK PURCHASE AGREEMENT.
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Exhibit A
PURCHASERS
Number of Shares
Purchaser to be Purchased
--------- ---------------
Baystar Capital LP 200,000
Baystar International LTD. 100,000
Clarion Capital Corporation 30,000
Clarion Partners, L.P. 39,900
Clarion Offshore Fund Ltd. 30,100
Marcuard Xxxx & Cie S.A. 50,000
Xxxxx Partners, LP 61,800
The Common Fund 20,800
Trinkaus & Xxxxxxxxx Int'l. 2,300
Matterhorn Offshore Fund 15,100
J. Xxxxxx Xxxxxxx R/O XXX XX 50,000
Fidelity National Title Insurance Co. 15,000
Xxxxxx & McBaine International 45,000
Lagunitas Partners L.P. 55,000
Gryphon Master Fund 50,000
Lancaster Investment Partners, L.P. 145,000
EDJ Limited 100,000
Xxx Xxxxxx Partners 20,000
Sonz Partners LP 10,000
Talkot Crossover Fund, L.P. 50,000
Xxxxxx X. Xxxx 50,000
North Olmsted Partners, L.P. 50,000
TCMP3 Partners LP 30,000
Xxxxxxx X. Xxxxxxxx Investment Fund 10,000
Total Shares 1,230,000
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