Exhibit 2.1
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT is dated as of ______________, 2001 by
and between PHOTOMEDEX, INC., a Delaware corporation with its principal office
at 5 Xxxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000 (the
"Company"), and the person listed as the Purchaser on the signature page and on
Exhibit A hereto (the "Purchaser").
WHEREAS, the Company desires to issue and sell to the Purchaser units
("Units"), or fractions thereof, of the Company's securities, in connection with
an offering (the "Offering") of a minimum of $3,000,000 of Units, each Unit
consisting of one hundred thousand (100,000) shares (the "Shares") of the
authorized but unissued common stock, $0.01 par value per share, of the Company
(the "Common Stock") and twenty-five thousand (25,000) common stock purchase
warrants ("Warrants") to purchase shares of Common Stock; and
WHEREAS, the Purchaser wishes to purchase the Units 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) "Initial Closing Date" means the date of the Initial Closing.
(d) "Registration Rights Agreement" shall mean that certain
Registration Rights Agreement, dated as of the date hereof, among the Company
and the Purchaser.
(e) "SEC" shall mean the Securities and Exchange Commission.
(f) "Securities Act" shall mean the Securities Act of 1933, as
amended, and all of the rules and regulations promulgated there under.
2. Purchase and Sale of Units
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 the
Purchaser, and the Purchaser hereby agrees to purchase from the Company, at the
Closing, the number of Units, or fractions thereof, set forth opposite the name
of the Purchaser under the heading "Number of Units to be Purchased" on Exhibit
A hereto, at a purchase price per Unit of one hundred and _______thousand
dollars ($10x,000) (at the closing market price plus $0.01 as of the Initial
Closing Date). The exercise price for each Warrant shall be one dollar and
__________cents ($1.xx) per share of Common Stock (at 110% of closing market
price as of the Initial Closing Date). The total purchase price payable by the
Purchaser for the number of Units that the Purchaser is hereby purchasing is set
forth opposite the name of the Purchaser under the heading "Purchase Price" on
Exhibit A hereto.
2.2 Closing. The initial closing (the "Initial Closing") and any
additional any closing subsequent to the Initial Closing (each a "Subsequent
Closing," and together with the Initial Closing, each a "Closing") of the
transactions contemplated under this Agreement shall take place upon receipt of
a wire transfer from the Purchaser of the amount of the purchase price to the
Company, the delivery of executed copies of this Agreement, the Registration
Rights Agreement, and Investment Representation Certificate to the offices of
the Company's counsel, Xxxx, Forward, Xxxxxxxx & Scripps LLP, 00000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, and the acceptance by the
Company of the Purchaser's purchase of Units or fractions thereof. Within three
business days of the Closing, the Company shall deliver to the Purchaser a
single stock certificate and a single warrant certificate, each registered in
the name of the Purchaser, representing the number of shares of Common Stock and
Warrants purchased by the Purchaser, as computed pursuant to Section 2.1 hereof.
At the Initial Closing, the Company shall be required to receive gross proceeds
of a minimum of $3,000,000 from sales of the Units to all Purchasers in
connection with the Offering.
3. Representations and Warranties of the Company. The Company
hereby represents and warrants to the Purchaser 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 which 19,131,239 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
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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.
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 Units. The Shares being purchased and the
shares of Common Stock underlying the Warrants being purchased by the Purchaser
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 the Purchaser
its audited Statements of Operations, Stockholders' Equity and Cash Flows for
the fiscal year ended December 31, 2000, its audited Balance Sheet as of
December 31, 2000, and its unaudited Statements of Operations, Stockholders'
Equity and Cash Flows for the six months ended June 30, 2001 and its unaudited
Balance Sheet as of June 30, 2001. 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 June 30, 2001,
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.
Notwithstanding anything to the contrary in this Agreement, the Company's
current financial performance may vary materially from expectations disclosed in
the Company's SEC Documents (as such term is defined below) and other publicly
released information by the Company due to corporate response to recent market
volatility, patient seasonality and uncertainty in global markets and the
Company's markets. Future expectations regarding near-term financial performance
will continue to be uncertain until full third-party insurance reimbursement for
the Company's products becomes widely available. There can be no assurance that
changes in our manufacturing and marketing research and development plans or
other changes affecting our operating expenses and business strategy will not
result in the expenditure of the proceeds of this Offering before such time or
that we will be able to develop
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profitable operations prior to such date, or at all, or that we will not require
additional financing at or prior to such time in order to continue operations.
There can be no assurance that additional capital will be available on terms
favorable to us, if at all.
3.6 SEC Documents. The Company has furnished to the Purchaser a true
and complete copy of the Company's Annual Report on Form 10-K for the year ended
December 31, 2000, the Company's Quarterly Report on Form 10-Q for the six
months ended June 30, 2001, 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
December 31, 2000, and ending on the date hereof. The Company will, promptly
upon the filing thereof, also furnish to the 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 the 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 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 Units, 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 Bylaws 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 licensed members of the National
Association of Securities Dealers, Inc. who are legally permitted to and who may
receive selling commissions of 7% of the gross proceeds received from sales of
Units through such licensed members, 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 such
licensed members, the Company has not incurred, and shall not incur,
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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 not received any communication from the NASDAQ
National Market System with respect to any pending or threatened proceeding 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 Purchaser. The Purchaser
represents and warrants to the Company as follows:
4.1 Authorization. All action on the part of the 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 the Purchaser, enforceable against the
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. The 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. The Purchaser is acquiring
the Units 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. The Purchaser certifies and represents to
the Company that at the time the Purchaser acquires any of the Units, the
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 Units. The Purchaser's financial condition is such that it is able
to bear the risk of holding the Units for an indefinite period of time and the
risk of loss of its entire investment. The 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.
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4.4 Units Not Registered. The Purchaser understands that the Units
and the securities that make up the Units 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
Units must continue to be held by the 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 the Purchaser and the consummation of the
transactions contemplated hereby and thereby will not conflict with or result in
any violation of or default by the 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 the Purchaser or (ii) any agreement
or instrument, permit, franchise, license, judgment, order, statute, law,
ordinance, rule or regulations, applicable to the Purchaser or its respective
properties or assets.
4.6 Brokers. The 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 the 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.
4.8 Escrow Agreement. In connection with and in consideration of
this Agreement, the Purchaser hereby adopts and agrees to be bound by the terms
and conditions of that certain Escrow Agreement (the "Escrow Agreement"), dated
as of October __, 2001, by and between the Company and Xxxx, Forward, Xxxxxxxx &
Scripps LLP, as Escrow Holder, in the form attached as Exhibit C hereto, as if
the Purchaser had executed such Escrow Agreement.
5. Conditions Precedent.
5.1. Conditions to the Obligation of the Purchaser to Consummate the
Closing. The obligation of the Purchaser to consummate the Closing and to
purchase and pay for the Units 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 the 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
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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) 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.
(d) The purchase of and payment for the Units by the Purchaser 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 Units, shall have been duly obtained or made and
shall be in full force and effect.
(e) 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 Purchaser, and the Purchaser
shall have received copies (executed or certified, as may be appropriate) of all
documents which the 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 the Purchaser the Units to be purchased at the Closing is subject to
the satisfaction of the following conditions precedent:
(a) The representations and warranties contained herein of the
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 the 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 the Purchaser.
(c) The Purchaser shall have performed all obligations and
conditions herein required to be performed or observed by the Purchaser 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
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have been instituted before any court, arbitrator or governmental body, agency
or official and shall be pending.
(e) The sale of the Units 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
Units, shall have been duly obtained or made and shall be in full force and
effect.
(f) The Purchaser shall have executed and delivered to the Company
an Investment Representation Certificate, in the form attached hereto as Exhibit
B, pursuant to which the Purchaser shall provide information necessary to
confirm the Purchaser's status as an "accredited investor" (as such term is
defined in Rule 501 promulgated under the Securities Act).
(g) 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. The Purchaser shall not
sell, assign, pledge, transfer or otherwise dispose or encumber any of the Units
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 the 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
Units in violation of this Section 6.1 shall be voidable by the Company. The
Company shall not register any transfer of the Units 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 representing any of the Shares shall
be endorsed with the legends set forth below, and the 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
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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) at any time by mutual agreement of the Company and the
Purchaser; or
(b) by the Purchaser, 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 the 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(b) 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
(c) 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(c) 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 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
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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.
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.
5 Xxxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. X'Xxxxxxx, President
Telecopier: (000) 000-0000
with a copy to:
Xxxx, Forward, Xxxxxxxx & Scripps LLP
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telecopier: (000) 000-0000
(c) Any entity may change the address to which correspondence to it
is to be addressed by notification as provided for herein.
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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 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 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.
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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.
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 Purchaser.
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.
IN WITNESS WHEREOF, the parties hereto have executed this Securities
Purchase Agreement under seal as of the day and year first above written.
PHOTOMEDEX, INC.
By: --------------------------------
Xxxxxxx X'Xxxxxxx
Chief Executive Officer
--------------------------------
Signature of Purchaser
--------------------------------
Print Name of Purchaser
12
EXHIBIT A
Purchaser's Name __________________
Purchaser's Address __________________
__________________
__________________
__________________
Number of Units (or fractions thereof) to be Purchased __________________
Purchase Date: __________________
Email Address or Fax Number for notification of Purchase Price Calculation:
__________________
All funds to be delivered to the Escrow Holder for the benefit of the Company by
bank wire transfer as follows:
California Bank and Trust
San Diego Commercial Banking Xxxxxx
000 X Xxxxxx
Xxx Xxxxx, XX 00000
Account Name: Xxxx, Forward, Xxxxxxxx & Scripps LLP Client Trust Account
Fed. Routing Number: 000000000
Account Number: 0701169501
