Exhibit 10.1
INVESTMENT AGREEMENT
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This INVESTMENT AGREEMENT, made as of this 30th day of March, 2006 (the
"Effective Date"), by and between AZURTEC, INC., a Pennsylvania corporation with
its principal place of business at 00 Xxxxx Xxxxx, Xxxxxxx, XX 00000
(hereinafter referred to as "AzurTec") and PHOTOMEDEX, INC., a Delaware
corporation, with a business address at 000 Xxxxxxxx Xxxxx, Xxxxxxxxxxxxxxx, XX
00000 (hereinafter referred to as "PhotoMedex").
WITNESSETH:
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PhotoMedex and AzurTec entered into a Development Agreement, dated July
23, 2004, whereunder PhotoMedex undertook to develop prototypes of a
beta-generation of AzurTec's proprietary MetaSpex Laboratory System ("MLS
System"). Work under that agreement was suspended so that AzurTec could
strengthen its financial position. AzurTec wants a stronger financial position
so that it may complete the development of the ex vivo version of the MLS System
for commercial exploitation and continue to develop the in situ version of the
MLS System, and to that end additionally engages PhotoMedex to redesign and
manage the software development of the MLS System and the regulatory process of
the MLS System, which PhotoMedex is willing to do, and so that it may engage
PhotoMedex, through a License Agreement, to produce the commercial unit of the
ex vivo version of the MLS System and to distribute that version of the MLS
System on a worldwide basis, which PhotoMedex is also willing to do, giving
PhotoMedex a right of first negotiation to commercialize the in situ version of
the MLS System.
In consideration of the mutual agreements and undertakings set forth
below, and intending to be legally bound hereby and having conducted such due
diligence as each deemed appropriate and received any necessary consents and
approvals therefor from their respective Boards of Directors and stockholders,
AzurTec and PhotoMedex agree as follows:
1. Sale of Capital Stock.
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(a) AzurTec Shares. Subject to the terms and conditions hereof,
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AzurTec shall sell to PhotoMedex, and PhotoMedex shall purchase from AzurTec,
181,512 shares of AzurTec Class A Preferred Stock (the "AzurTec Preferred
Shares"), and 6,855,141 shares of AzurTec Common Stock (the "AzurTec Common
Shares") at the Closing, whereby PhotoMedex shall own 14% of the issued and
outstanding Preferred Stock of AzurTec and 14% of the issued and outstanding
Common Stock of AzurTec (on a fully diluted basis) and therefore 14% of the net
equity of AzurTec and 14% of the voting rights in AzurTec.
(b) PhotoMedex Shares. In return for the AzurTec Preferred Shares
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and the AzurTec Common Shares and the License Agreement described in Section
2(a)(i)(C), PhotoMedex shall issue and make available for issuance to AzurTec
and/or to AzurTec's designees (the "Designated Holders") an aggregate of 200,000
restricted shares of PhotoMedex's common stock (the "PhotoMedex Shares") at the
Closing, subject to the terms and conditions hereof.
(c) Valuation. For purposes of determining the aggregate purchase
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price between the parties for the AzurTec Preferred and Common Shares and the
License Agreement, it shall be equal to the product of the number of PhotoMedex
Shares (viz. 200,000) and the mean of the closing prices of PhotoMedex common
stock from November 3, 2005 to February 3, 2006, inclusive, i.e., $1.76 per
share, for a total of $352,000. It is understood and agreed, however, that the
foregoing determination of aggregate purchase price as a contractual matter
between the parties shall not preclude PhotoMedex from a different determination
of aggregate purchase price as a matter of financial reporting in accordance
with accounting principles generally accepted in the United States, and that
PhotoMedex may, at its discretion and with due regard for the requirements of
the Internal Revenue Code and accounting principles generally accepted in the
United States allocate such purchase price 70% to the AzurTec Preferred Shares
and the AzurTec Common Shares and 30% to the License Agreement (including the
right of first negotiation), and AzurTec will duly record and report such
allocations, consistent with Section 1060 of the Internal Revenue Code.
(d) Issuance of Additional AzurTec Shares. For each issuance of
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AzurTec Shares to a party other than PhotoMedex in pursuance of raising an
additional $1 million of equity capital (as described in Section 2(c)(iii)),
AzurTec shall issue to PhotoMedex, without additional consideration from
PhotoMedex, additional AzurTec Preferred Shares and/or AzurTec Common Shares
sufficient to maintain PhotoMedex's 14% interest in each class of capital stock
of AzurTec (which amount has been estimated to be 3,418,605 shares of common
stock). Notwithstanding the foregoing, it is understood and agreed that for any
issuance to PhotoMedex of AzurTec Shares which is subsequent to and not in
pursuance of the fulfillment of the covenant in Section 2(c)(iii) and in which
PhotoMedex elects to participate, PhotoMedex being under no obligation to
participate or otherwise make further debt or capital investment in AzurTec,
PhotoMedex shall not be issued AzurTec Shares without additional consideration,
but shall be issued additional AzurTec Shares only in accordance with the terms
and conditions described in Section 4(f).
(e) Issuance of PhotoMedex Warrant. Upon fulfillment by AzurTec of
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the covenant described in Section 2(c)(iii), PhotoMedex shall issue to AzurTec a
warrant (the "PhotoMedex Warrant") for 100,000 shares of PhotoMedex common stock
(the "PhotoMedex Warrant Shares"), where the warrant shall have an exercise
price equal to 90% of the mean of the closing prices of PhotoMedex common stock
on Nasdaq for the 30 trading days preceding the issuance of the PhotoMedex
Warrant and where the warrant shall have a life of 5 years, shall not be
exercisable for the first six months after issuance, and shall otherwise be in a
form as set forth in Schedule 1(e). PhotoMedex may, at its discretion and with
due regard for the requirements of the Internal Revenue Code and accounting
principles generally accepted in the United States, allocate the consideration
embodied in the PhotoMedex Warrant 100% to the License Agreement, and AzurTec
will duly record and report such allocation, consistent with Section 1060 of the
Internal Revenue Code.
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2. Closing.
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(a) Deliveries.
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(i) AzurTec shall deliver to PhotoMedex a share
certificate evidencing the AzurTec Preferred Shares and a share certificate
evidencing the AzurTec Common Shares, both purchased by PhotoMedex pursuant to
Section 1. Each of AzurTec and PhotoMedex shall also execute and deliver to the
other: (A) the Security Agreement described in Section 2(b)(ii) (the "Security
Agreement"), (B) an Amendment to the Development Agreement in the form attached
hereto as Schedule 2(a)(i)(B) (the "Development Agreement Amendment"), and (C)
the License Agreement in the form attached hereto as Schedule 2(a)(i)(C) (the
"License Agreement"). AzurTec shall also present proof that it has raised no
less than $250,000 of equity capital and has recapitalized its capital stock,
all as described in Section 2(b)(i) and 2(b)(ii) respectively.
(ii) PhotoMedex shall deliver to AzurTec and/or its
Designated Holders a share certificate or certificates evidencing the PhotoMedex
Shares, as consideration for the AzurTec Shares.
(iii) Such deliveries shall take place at or from the
offices of PhotoMedex, 000 Xxxxxxxx Xxxxx, Xxxxxxxxxxxxxxx, XX 00000, no later
than 3:00 PM, March30, 2006 (the "Closing" and the "Closing Date").
(b) Conditions Precedent to Closing. The Closing of the
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transactions contemplated by this Agreement shall be contingent on AzurTec's
fulfillment of the following conditions precedent: (i) that, consistent with
Section 2(a)(i), AzurTec shall have raised at least $250,000 in equity capital,
and in the event that more than $250,000 is raised, the excess over $250,000
shall be applied toward satisfaction of the covenant in Section 2(c)(iii); and
(ii) that AzurTec shall have recapitalized its equity and debt, such that it
shall have but two classes of capital stock, Class A Preferred and Common, , and
AzurTec shall have eliminated those promissory notes, secured variously by its
intellectual property or by a priority claim to revenues of AzurTec, allowing
instead its preferred stockholders to have first liquidation preference as to
AzurTec's Intellectual Property (as defined and described in Section 5(p)) and
allowing to PhotoMedex a first security interest in the same in order to secure
PhotoMedex's rights to an assignment of the same if the circumstances described
in Section 2(c)(vi) should obtain, and if the circumstances described in Section
2(c)(vi) should not obtain, then to secure PhotoMedex's rights to be timely paid
under the Development Agreement (as amended by the Amendment to Development
Agreement, hereinafter the "Development Agreement") and under the License
Agreement, such security interest to be evidenced by a Security Agreement in the
form set forth on Schedule 2(b). It shall further be a condition precedent to
each party's obligation to consummate the transactions contemplated by this
Investment Agreement that the representations and warranties set forth in
Sections 4 and 5 are true and remain true in all material respects as of the
Closing.
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(c) Post-Closing Covenants.
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(i) AzurTec covenants that it shall apply the equity
capital described in Section 1(a) to defray agreed portions of such outstanding
payables owing to Xxxxx Xxxxxx, Xxxx & Xxxx and MDCI, and payables incurred in
connection with the engagement of Xxxx Xxxxx and other endeavors, all as set
forth on Schedule 2(c)(i) & (v) and covenants as well that it will not further
encumber its Intellectual Property until it shall have satisfied the covenant
set forth in Section 2(c)(iii).
(ii) From and after the Closing, PhotoMedex shall have, as
more fully set forth in Section 12(o), the right to appoint a representative
from PhotoMedex to observe meetings of the Board of Directors AzurTec, in
furtherance of the collaboration of AzurTec and PhotoMedex, but not to have a
seat on such Board, in circumscription of the influence that PhotoMedex may have
on the arm's length independence of AzurTec.
(iii) AzurTec hereby agrees that it shall, within 9 months
of the Closing Date, raise no less than an additional $1 million in new equity
capital. AzurTec may solicit its present investors or third-party investors to
participate in this capital raise; PhotoMedex shall participate in the equity
raise without additional consideration, as described in Section 1(d). In the
event that more than $250,000 is raised in the first round of raising equity
capital, described in Section 2(b)(i), the excess over $250,000 shall be applied
toward satisfaction of the $1 million to be raised in the second round,
described herein.
(iv) Upon fulfillment by AzurTec of the covenant described
in Section 2(c)(iii), PhotoMedex shall issue to AzurTec and/or AzurTec's
designees the PhotoMedex Warrant (divided, if applicable, into separate
warrants) as defined in Section 1(e).
(v) Provided that the equity raise described in Section
2(c)(iii) is successfully completed, AzurTec covenants that it shall pay in full
those trade obligations due and owing to PhotoMedex for work undertaken pursuant
to the Development Agreement, using the proceeds of such equity raise as may be
necessary. Such obligations are set forth on Schedule 2(c). PhotoMedex shall not
be required to undertake work under the Development Agreement, as amended, until
AzurTec shall have paid the obligations to PhotoMedex set forth on Schedule
2(c)(i) & (v), and conversely AzurTec shall not be required to pay such
obligations other than out of such proceeds for as long as AzurTec is diligently
pursuing the equity raise described in Section 2(c)(iii).
(vi) In the event, however, that AzurTec does not timely
fulfill the covenant set forth in Section 2(c)(iii), then PhotoMedex may, if
PhotoMedex gives AzurTec 30 days' prior written notice of breach of the covenant
and the breach remains uncured at the end of such 30-day period, receive a
royalty-bearing assignment of AzurTec's right, title and interest in AzurTec's
Intellectual Property, encumbered only by PhotoMedex's first security interest
therein, pursuant to the Assignment Agreement set forth on Schedule 2(c)(vi)
(the "Assignment Agreement"). In return, PhotoMedex shall transfer to AzurTec
the AzurTec Preferred Shares and the AzurTec Common Shares (including without
limitation those shares which PhotoMedex is to receive pursuant to Section
1(d)), whereupon PhotoMedex shall be thereby absolved of its obligations under
this Agreement, the Development Agreement, as amended, and the License
Agreement; provided that, nothing contained in this paragraph shall be deemed to
affect the rights of the holders of the PhotoMedex Shares previously issued
pursuant to this Agreement, including without limitation the rights under
Section 7 hereof.
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(vii) AzurTec further covenants that it will use
commercially reasonable efforts (including without limitation raising further
equity capital) to fund the development of the in situ version of MLS System.
3. Restrictions on PhotoMedex Shares.
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The PhotoMedex Shares and PhotoMedex Warrant Shares shall be subject to
the restrictions set forth below. AzurTec consents to PhotoMedex making a
notation on its records and giving instructions to any transfer agent of the
PhotoMedex Shares and PhotoMedex Warrant Shares in order to implement the
restrictions on transfer established in this Section 3.
(a) AzurTec and Designated Holders to hold in own name. Each of
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AzurTec and its affiliates or designees who become holders of the PhotoMedex
Shares shall hold the PhotoMedex Shares and PhotoMedex Warrant Shares purchased
hereunder in their own name and not in "street name." For purposes of this
Agreement, the term "affiliate" shall have the same meaning as such term is
defined under Rule 144 of the Securities Act of 1933, as amended (the "Act").
(b) Permitted Transfers.
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(i) AzurTec understands and agrees that the PhotoMedex
Shares and PhotoMedex Warrant Shares being purchased hereunder may be
transferred by any holder thereof only pursuant to (a) a public offering thereof
registered under the Act, (b) Rule 144 of the Securities and Exchange Commission
(the "Commission") (or any similar rule in force at the time of such transfer)
if such rule is available, (c) as permitted in Section 3(b)(iii) below, or (d)
subject to any conditions specified in this Section 3, any other legally
available means of transfer.
(ii) In connection with the transfer of any PhotoMedex
Shares or PhotoMedex Warrant Shares other than in a public offering registered
under the Act, any holder thereof which is bound by the conditions contained in
this Section 3 shall deliver written notice to PhotoMedex describing in
reasonable detail the transfer or proposed transfer, and, if requested by
PhotoMedex, an opinion of counsel that is knowledgeable in securities law
matters and reasonably acceptable to the Company, it being agreed that Xxxxx
Xxxxxx LLP shall be acceptable with respect to AzurTec, to the effect that such
transfer may be effected without registration under the Act and under applicable
state securities laws. In addition, if any such holder delivers to PhotoMedex an
opinion of counsel that no subsequent transfer of such Shares will require
registration under the Act or under applicable state securities laws, PhotoMedex
shall promptly upon such contemplated transfer deliver new certificates for such
Shares that do not bear the restrictive legend set forth in Section 3(c) hereof,
and subsequent transferees shall not be bound by the conditions contained in
this Section 3. If PhotoMedex is not required to deliver new certificates for
such PhotoMedex Shares not bearing such legend, the holder thereof shall not
transfer such Shares until the prospective transferee has confirmed to
PhotoMedex in writing his, her or its agreement to be bound by the conditions
contained in this Section 3.
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(c) Restrictive Legend. Each certificate for the PhotoMedex Shares
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or PhotoMedex Warrant Shares, and any shares of capital stock received in
respect thereof, whether by reason of a stock split or share reclassification
thereof, a stock dividend thereon or otherwise, shall be stamped or otherwise
imprinted with a legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE.
THESE SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION UNLESS PHOTOMEDEX, INC. (THE "COMPANY")
RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE
COMPANY AND ITS COUNSEL STATING THAT SUCH SALE OR TRANSFER MAY
BE EFFECTED PURSUANT TO AN EXEMPTION UNDER SUCH ACT FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND PURSUANT TO
APPLICABLE STATE SECURITIES LAWS.
ADDITIONALLY, THE TRANSFER OF THESE SHARES IS SUBJECT TO THE
CONDITIONS SPECIFIED IN SECTION 3 OF THE INVESTMENT AGREEMENT
DATED AS OF MARCH 30, 2006 BETWEEN THE COMPANY AND AZURTEC,
INC. AND NO TRANSFER OF THESE SHARES SHALL BE VALID OR
EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED. COPIES OF
SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
SECRETARY OF THE COMPANY.
(d) Compliance with Securities Laws. AzurTec acknowledges that as
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a result of this transaction under this Agreement, it may be required to comply
with the provisions of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and other applicable rules and regulations relating to its
ownership of PhotoMedex's Common Stock. AzurTec agrees to comply in all respects
with the provisions of the Exchange Act and other applicable rules and
regulations, to file all reports required to be filed by it thereunder and to
supply PhotoMedex with all information requested by it from time to time in
order to permit PhotoMedex to comply with the provisions of the Exchange Act and
other applicable laws, rules and regulations.
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(e) Registration. The parties intend that the PhotoMedex Shares
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and PhotoMedex Warrant Shares shall be subject to the provisions of Section 7
hereof.
4. Restrictions on AzurTec Shares.
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The AzurTec Preferred Shares and the AzurTec Common Shares shall be
subject to the restrictions set forth below. PhotoMedex consents to AzurTec
making a notation on its records and giving instructions to any transfer agent
of the AzurTec Shares in order to implement the restrictions on transfer
established in this Section 4.
(a) PhotoMedex to hold in own name. Each of PhotoMedex and its
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affiliates shall hold the AzurTec Shares purchased hereunder or issued pursuant
to Section 4(e) in their own name and not in "street name." For purposes of this
Agreement, the term "affiliate" shall have the same meaning as such term is
defined under Rule 144 of the Securities Act of 1933, as amended (the "Act").
(b) Permitted Transfers.
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(i) PhotoMedex understands and agrees that the AzurTec
Shares being purchased hereunder may be transferred by any holder thereof only
pursuant to (a) a public offering thereof registered under the Act, (b) Rule 144
of the Securities and Exchange Commission (the "Commission") (or any similar
rule in force at the time of such transfer) if such rule is available, or (c)
subject to any conditions specified in this Section 4, any other legally
available means of transfer.
(ii) In connection with the transfer of any AzurTec Shares
other than in a public offering registered under the Act, any holder thereof
which is bound by the conditions contained in this Section 4 shall deliver
written notice to AzurTec describing in reasonable detail the transfer or
proposed transfer, and, if requested by AzurTec, an opinion of counsel that is
knowledgeable in securities law matters and reasonably acceptable to AzurTec, it
being agreed that Jenkens & Xxxxxxxxx LLP shall be acceptable with respect to
PhotoMedex, to the effect that such transfer may be effected without
registration under the Act and under applicable state securities laws. In
addition, if any such holder delivers to AzurTec an opinion of counsel that no
subsequent transfer of such AzurTec Shares will require registration under the
Act or under applicable state securities laws, AzurTec shall promptly upon such
contemplated transfer deliver new certificates for such Shares that do not bear
the restrictive legend set forth in Section 4(c) hereof, and subsequent
transferees shall not be bound by the conditions contained in this Section 4. If
AzurTec is not required to deliver new certificates for such AzurTec Shares not
bearing such legend, the holder thereof shall not transfer such Shares until the
prospective transferee has confirmed to AzurTec in writing his or its agreement
to be bound by the conditions contained in this Section 4.
(iii) Notwithstanding the provisions of Sections 4(b)(i)
and 4(b)(ii) hereof, PhotoMedex shall not transfer, assign, sell or otherwise
dispose of any of the AzurTec Shares, except to an "affiliate" of PhotoMedex as
such term is defined under Section 4(a), during the first six (6) months
following the issuance of the share certificate evidencing such Shares.
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(c) Restrictive Legend. Each certificate for the AzurTec Shares,
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whether preferred or common, and any shares of capital stock received in respect
thereof, whether by reason of a stock split or share reclassification thereof, a
stock dividend thereon or otherwise, shall be stamped or otherwise imprinted
with a legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE.
THESE SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION UNLESS AZURTEC, INC. (THE "COMPANY")
RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE
COMPANY AND ITS COUNSEL STATING THAT SUCH SALE OR TRANSFER MAY
BE EFFECTED PURSUANT TO AN EXEMPTION UNDER SUCH ACT FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND PURSUANT TO
APPLICABLE STATE SECURITIES LAWS.
ADDITIONALLY, THE TRANSFER OF THESE SHARES IS SUBJECT TO THE
CONDITIONS SPECIFIED IN SECTION 4 OF THE INVESTMENT AGREEMENT
DATED AS OF MARCH 30, 2006 BETWEEN THE COMPANY AND PHOTOMEDEX,
INC. AND NO TRANSFER OF THESE SHARES SHALL BE VALID OR
EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED. COPIES OF
SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
SECRETARY OF THE COMPANY.
(d) Compliance with Securities Laws. PhotoMedex acknowledges that
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as a result of the transactions under this Agreement, it may be required to
comply with the provisions of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and other applicable rules and regulations relating to its
ownership of AzurTec Common Stock. PhotoMedex agrees to comply in all respects
with the provisions of the Exchange Act and other applicable rules and
regulations, to file all reports required to be filed by it thereunder and to
supply AzurTec with all information requested by it from time to time in order
to permit AzurTec to comply with the provisions of the Exchange Act and other
applicable laws, rules and regulations.
(e) Registration. The parties intend that the AzurTec Shares shall
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be subject to the provisions of Section 8 hereof.
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(f) Purchase Rights.
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(i) Subject to Section 4(f)(ii), in the case of the
issuance or granting by AzurTec of shares of any class of capital stock of
AzurTec or securities convertible into or exchangeable for shares of any class
of capital stock of AzurTec or warrants, options or other rights to purchase
shares of any class of capital stock of AzurTec or securities convertible into
or exchangeable for shares of any class of capital stock of AzurTec (other than
pursuant to this Agreement and other than in a transaction specified in Section
4(f)(ii) below), PhotoMedex shall have the right, on the same substantive terms
as those of the issuance or granting, to purchase or acquire up to such number
of shares of each class of the capital stock or securities, warrants, options or
rights which are issued or granted as is determined in accordance with the
following formula:
X = Y(Z + X)
where X represents the number of shares of the particular class of capital stock
or securities, warrants, options or rights which PhotoMedex is entitled to
purchase pursuant to the provisions of this Section 4(f)(i), Y represents
PhotoMedex's percentage ownership on a fully diluted basis of the particular
class of capital stock of AzurTec (calculated as set forth below) and Z equals
the number of shares of the capital stock or securities, warrants, options or
rights issued or granted by AzurTec to persons other than to PhotoMedex under
this Section 4(f)(i). See Schedule 4(f) hereof for an example of this
calculation. The price or prices, if any, and substantive terms for such shares
of capital stock, securities, warrants, options or rights shall be identical to
the price or prices, if any, and substantive terms at which such shares of
capital stock, securities, warrants, options or rights are offered for sale or
granted to others. For purposes of this Agreement, PhotoMedex's percentage
ownership on a fully diluted basis of a particular class of the capital stock of
AzurTec shall equal a fraction, the numerator of which shall equal the sum of
(a) the number of shares of AzurTec's capital stock in the particular class
purchased pursuant to Section 1 of this Agreement plus (b) the number of shares
of capital stock in the particular class of capital stock purchased or
purchasable by PhotoMedex pursuant to prior exercise from time to time of its
rights under this Section 4(f) plus (c) shares of capital stock of the
particular class issued or issuable to PhotoMedex by way of dividend or other
distribution on the foregoing shares or as a result of any subdivision or
reclassification of the particular class of AzurTec's capital stock with respect
to the foregoing shares and the denominator of which shall equal, with respect
to the particular class of AzurTec capital stock, the sum of (a) the number of
shares of Common Stock of AzurTec then issued and outstanding plus (b) the
outstanding warrants, options or other rights to acquire shares of the
particular class of AzurTec's capital stock, including any such shares issuable
upon the conversion of outstanding convertible securities. AzurTec shall give
prior notice to PhotoMedex of any issuance or grant that would give PhotoMedex
any rights hereunder, and PhotoMedex shall be obligated to exercise any such
right, if at all, by written notice given to AzurTec within 30 days after the
issuance or grant giving rise to the rights specified in this Section 4(f)(i).
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(ii) The provisions of Section 4(f)(i) above shall not
apply to the following transactions: (a) the equity raise described in Section
2(c)(iii), inasmuch as PhotoMedex's 14% equity interest shall be protected by
the provisions of Section 1(d); (b) the granting by AzurTec to its employees,
consultants or directors of options, warrants or other rights to purchase shares
of the capital stock of AzurTec or the issuance to any such employees,
consultants or directors of shares of capital stock of AzurTec, in either such
case pursuant to the terms of AzurTec's stock option plan(s) (collectively, the
"Plan") or (c) the issuance of shares of capital stock upon the exercise of any
warrants, options or rights in existence on the date hereof and disclosed in
Schedule 4(f) hereto or granted pursuant to the immediately preceding clause
(a); provided, however, that the provisions of Section 4(f) shall apply to the
grant by AzurTec to its employees, consultants or directors of options, warrants
or other rights to purchase shares of its capital stock or the issuance of
restricted or other shares of AzurTec capital stock, in either case pursuant to
the terms of the Plan, to the extent that such issuances or grants involve the
grant of options, warrants or other rights to acquire, or issuance of restricted
or other shares of AzurTec capital stock, in excess of an aggregate of 5% of the
shares of AzurTec common stock outstanding at any given point in time (exclusive
of 1,905,000 options granted up to the Effective Date under the Plan, but
without including options, warrants or other rights that expire unexercised or
restricted or other shares that are forfeited to AzurTec in accordance with the
terms thereof) shares of AzurTec capital stock pursuant to such Plan.
5. Representations and Warranties of AzurTec. AzurTec represents and
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warrants to PhotoMedex as follows:
(a) Authority. AzurTec has the corporate power to execute, deliver
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and carry out the terms and provisions of this Agreement and has taken all
necessary corporate action to authorize the execution, delivery and performance
of this Agreement by AzurTec.
(b) No Consent Required. No authorization, consent or approval of,
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or exemption by, any governmental or public body or authority is required to
authorize, or is required in connection with, the execution, delivery and
performance of any of this Agreement, or the taking of any action contemplated
hereby, by AzurTec, except those that have been obtained or are available.
(c) Good Standing. AzurTec is a corporation duly organized,
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validly existing and in good standing under the laws of Pennsylvania, and has
full corporate power and authority to carry on its business as now conducted and
to own or lease and operate its properties as and in the places where such
business is now conducted and such properties are now owned, leased or operated.
AzurTec is qualified to do business in each jurisdiction in which such
qualification is required and where the failure to do so would have a Material
Adverse Effect (as defined in Section 5(i) below).
(d) No Conflicts. Neither the execution and delivery of this
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Agreement by AzurTec nor the consummation by AzurTec of the transactions
contemplated hereby will violate any applicable state law or require any
consent, approval or notice under, constitute a violation of, or default under,
or conflict with, any mortgage, loan, indenture, lease, contract, commitment,
agreement, understanding, arrangement or restriction of any kind, permit,
concession, grant, franchise or license, judgment, order, decree, statute, rule
or ordinance by which AzurTec is bound. The execution, delivery and consummation
of the terms of this Agreement will not accelerate the maturity or otherwise
modify in any material adverse respect the terms of any indebtedness of AzurTec
or any of its subsidiaries or result in the creation of any encumbrance on any
of the properties or assets of AzurTec or any of its subsidiaries.
10
(e) Enforceability. This Agreement has been duly executed and
--------------
delivered by AzurTec and constitutes a legal, valid and binding obligation of
AzurTec enforceable against AzurTec in accordance with its terms, except as
enforceability may be restricted, limited or delayed by applicable bankruptcy or
other laws affecting creditors' rights generally, and except as enforceability
may be subject to general principles of equity.
(f) Issuance. Upon delivery to PhotoMedex of certificates
--------
representing the AzurTec Preferred Shares and the AzurTec Common Shares against
payment in accordance with the terms of this Agreement, the AzurTec Shares will
have been validly issued and fully paid and non-assessable, free and clear of
all pledges, liens and encumbrances.
(g) Capitalization. (i) AzurTec's authorized capital stock
--------------
consists of 3,000,000 shares of Preferred Stock and 125,000,000 shares of Common
Stock. On the Effective Date, there were issued and outstanding 1,115,000 shares
of Class A Preferred Stock and 7,977,755 shares of Common Stock.
(ii) As of the Effective Date, AzurTec has reserved for
issuance the following contingent issuances of its capital stock: 16,725,000
shares of Common Stock, reserved for conversion of the outstanding Class A
Preferred Stock; 24,934,000 shares of Common Stock, reserved for conversion of
promissory notes required by Section 2(b)(ii) hereof; 5,000,000 shares of Common
Stock reserved for the $250,000 equity raise required by Section 2(b)(i) hereof;
1,000,000 shares of Common Stock reserved for satisfaction of individual
investor antidilution rights; 1,905,000 shares of Common Stock reserved for
outstanding stock options; 1,293,400 shares of Common Stock reserved for
outstanding warrants; 6,855,141 shares of Common Stock reserved for issuance to
PhotoMedex under Section 1(a) hereof; 181,512 shares of Class A Preferred Stock
reserved for issuance to PhotoMedex under Section 1(a) hereof; 2,722,680 shares
of Common Stock reserved for conversion of the aforesaid Class A Preferred Stock
to be issued to PhotoMedex; 20,000,000 shares of Common Stock reserved for
$1,000,000 equity raise required by Section 2(c)(iii) hereof; 1,000,000
additional shares in settlement and termination of individual investor
antidilution rights upon closing of the $1,000,000 capital raise required by
Section 2(c)(iii) hereof; and 3,418,605 shares of Common Stock reserved for
issuance to PhotoMedex as required by Section 1(d) hereof. Except as set forth
on Schedule 5(g)(ii), there are no preemptive rights on the part of any holder
of any class of securities of AzurTec. Except as set forth on Schedule 5(g)(ii),
there are no options, warrants, conversion or other rights, agreements, or
commitments of any kind obligating AzurTec, contingently or otherwise, to issue
or sell any shares of its capital stock of any class or any securities
convertible into or exchangeable for any such shares except as set forth above,
and no authorization therefor has been given. All outstanding shares of
AzurTec's Preferred and Common Stock and any outstanding options, warrants or
other rights to purchase shares of AzurTec's capital stock and any shares of
AzurTec's stock issuable upon exercise, conversion or exchange thereof, have
been issued or granted in compliance with the registration or qualification
provisions of the Act, and any applicable state securities laws, or pursuant to
valid exemptions therefrom. AzurTec is not a party or subject to any agreement
or understanding and, to the best of its knowledge, there is no agreement or
understanding between any persons that affects or relates to the voting or
giving of written consents with respect to any security or the voting by a
director of AzurTec. Except as set forth on Schedule 5(g)(ii) and except as
contemplated by Section 7, AzurTec is not under any obligation to register any
of its presently outstanding securities or any of its securities which may
hereafter be issued.
11
(iii) AzurTec has heretofore delivered to PhotoMedex a true
and complete copy of its Certificate of Incorporation, as amended, as well as
its By-Laws, setting forth the rights and privileges associated with the classes
of its capital stock. A correct list as of the Effective Date of the owners of
the capital stock of AzurTec is set forth in Schedule 5(g)(iii).
(iv) To AzurTec's best knowledge and belief, if the equity
raise described in Section 2(c)(iii) is successful, then AzurTec will have
sufficient funds and other resources to complete the development of the ex vivo
version of the MLS System, used on an adjunctive basis and on a stand-alone
basis, as those terms are defined in the License Agreement.
(h) Financial Statements. Attached hereto as Schedule 5(h) are
--------------------
copies of the management-prepared consolidated balance sheets of AzurTec and its
subsidiaries at and for the years ending December 31, 2003, December 31, 2004
and December 31, 2005, and related statements of operations (together with the
auditors' report thereon for 2003 if the same should exist), together with such
notes to the balance sheets and statements of operations as may be available
(such balance sheets and statements of operations being herein referred to as
the "AzurTec Financial Statements"). The AzurTec Financial Statements endeavor
to present fairly the financial condition of the entities covered thereby, as of
the dates thereof, and the results of their operations for the indicated
periods. PhotoMedex understands and accepts that the last year for which AzurTec
obtained an audit of, and auditors' report for, its financial statements was the
year ending December 31, 2003.
(i) Absence of Changes. Except as set forth in Schedule 5(i) or
------------------
otherwise disclosed to PhotoMedex and other than liabilities which have arisen
after December 31, 2005 in the ordinary course of business consistent with past
practice, since December 31, 2005, (1) there has been no material adverse change
in the condition (financial or otherwise), properties, assets, liabilities,
business or operations of AzurTec or any of its subsidiaries (a "Material
Adverse Effect") and (2) neither AzurTec nor any of its subsidiaries has:
(i) declared, set aside, made or paid any dividend or
other distribution (other than intercompany dividends or distributions) in
respect of its capital stock, or agreed to do any of the foregoing, or purchased
or redeemed or agreed to purchase or redeem, directly or indirectly, any shares
of its capital stock;
(ii) issued or sold any shares of its capital stock of any
class or any options, warrants, conversion or other rights to purchase any such
shares or any securities convertible into or exchangeable for such shares or any
securities convertible into or exchangeable for such shares;
12
(iii) incurred any indebtedness for purchase money or
borrowed money;
(iv) mortgaged, pledged or subjected to any encumbrance
any of its properties or assets, tangible or intangible;
(v) except in the ordinary course of business acquired or
disposed of any tangible assets or properties having a value in excess of
$25,000 in any transaction with any other person;
(vi) with respect to any director, officer, employee or
consultant whose annual compensation is, or was during the year ended December
31, 2005, in excess of the equivalent of $50,000, (a) granted to any such person
any material increase in compensation in any form (including any material
increase in scope of any benefits), other than annual salary increases or
promotional increases in sales commissions consistent with prior practice, or
(b) become subject to any request for severance or termination pay, or granted
any severance or termination pay, or entered into any employment or severance
agreement with any such person;
(vii) adopted, or amended in any material respect, any
bonus, profit-sharing compensation, stock option, pension, welfare, security,
retirement, deferred compensation or other material plan, agreement, trust, fund
or arrangement of the Company for the benefit of any employee or employees;
(viii) experienced any Material Adverse Effect in its
relations with any of its suppliers or customers;
(ix) made any capital expenditures or commitment therefor
in excess of $25,000;
(x) incurred any liability (absolute, accrued or
contingent) except current liabilities incurred, liabilities under contracts
entered into, borrowings under short-term lines of credit, the borrowings
referred to in clauses (iii) and (iv) above and liabilities in respect of
letters of credit issued under credit facilities; or
(xi) made any change in accounting principles or
practices.
(j) Litigation. Except for the matters described in Schedule 5(j)
----------
and claims fully covered by insurance policies of AzurTec and its subsidiaries,
there are no judicial or administrative actions, suits, proceedings or
arbitrations or investigations (domestic or foreign) pending or, to the best
knowledge of AzurTec, threatened (for any amount in excess of $25,000 in the
case of threatening matters) against AzurTec or any of its subsidiaries, that
could result in a Material Adverse Effect.
(k) Filings with the Securities and Exchange Commission. To the
---------------------------------------------------
best knowledge of AzurTec, AzurTec's filings with the Securities and Exchange
Commission made from January 1, 2003 to the Effective Date conformed in all
material respects with the requirements of the Securities Act and the rules and
regulations thereunder; and no such document when it was filed (or, if any
amendment with respect to any such document was filed, when such amendment was
filed), contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading.
13
(l) Disclosure. To the best knowledge of AzurTec, this Agreement
----------
(including without limitation the Schedules hereto), the AzurTec Financial
Statements, and any other document, certificate, financial statement or other
instrument furnished or to be furnished by or on behalf of AzurTec to PhotoMedex
do not contain any untrue statement of a material fact, or, considered as a
whole, omit to state a material fact necessary in order to make the statements
contained herein or therein not misleading; provided, however, that to the
extent any such document, certificate, financial statement or other instrument
furnished to PhotoMedex by or on behalf of AzurTec represented a projection or
forecast of any kind whatsoever, AzurTec represents only that such projection or
forecast was made in good faith by management of AzurTec based on assumptions
that management deemed reasonable at the time such forecast or projection was
originally prepared, and AzurTec provides no assurance, representation or
warranty that AzurTec's actual future operating performance will be consistent
with any such forecast or projection.
(m) Contracts and Other Instruments.
-------------------------------
(i) AzurTec has listed on Schedule 5(m) a list of all
contracts, agreements and other instruments material to AzurTec as of the
Effective Date, such that if AzurTec were subject to filing requirements under
the Securities and Exchange Act of 1934, the contracts on such list would be
disclosed to the SEC in suitable public filings ("Material Contracts") and there
is no other contract, agreement or other instrument that is material to AzurTec
and its subsidiaries, taken as a whole, which is not on such list.
(ii) Except as disclosed in Schedule 5(m), to AzurTec's
best knowledge, neither AzurTec nor any other party to any Material Contract to
which AzurTec is a party or by which any of their assets or properties are bound
is in breach of or default under or is claimed to be in breach of or default in
complying with any provision thereof or has committed or permitted any event
which, with notice or the passage of time or both, would constitute such breach
or default, except for such breaches and defaults which in the aggregate would
not have a Material Adverse Effect on AzurTec and its subsidiaries taken as a
whole.
(iii) Except as set forth in Schedule 5(m), to AzurTec's
best knowledge, no consent of any party to any such contract, agreement or other
instrument to which AzurTec is a party or by which any of their properties or
assets are bound is required for any of the transactions contemplated by this
Agreement, except for such consents, the failure of which to obtain would not in
the aggregate have a Material Adverse Effect on AzurTec.
14
(n) Compliance with Laws: Governmental Authorizations. Except for
-------------------------------------------------
matters described in Schedule 5(n), to AzurTec's best knowledge AzurTec and its
subsidiaries are not in violation in any material respect of any governmental
license or permit, statute, law, ordinance, rule, regulation, judgment, order,
decree, permit, concession, grant, franchise, license or other governmental
authorization or approval applicable to AzurTec or its subsidiaries or to any of
their assets, properties or businesses. To AzurTec's best knowledge, all
permits, concessions, grants, franchises, licenses, clearances and other
governmental authorizations and approvals necessary for the conduct of the
business of AzurTec and its subsidiaries as presently conducted have been duly
obtained and are in full force and effect, except where the failure to obtain or
maintain in effect any of the foregoing would not have a Material Adverse
Effect, and there are no proceedings pending or, to AzurTec's best knowledge,
threatened that may result in the revocation, cancellation or suspension, or any
material adverse modification, of any thereof.
(o) Absence of Undisclosed Liabilities. Except as set forth in
----------------------------------
Schedule 5(o) and other than liabilities which have arisen from December 31,
2005 to on or about the Effective Date in the ordinary course of business
consistent with past practice (including those permitted by or scheduled
pursuant to Section 5(i)), neither AzurTec nor any of its subsidiaries has any
material liabilities or obligations of any nature, whether absolute, contingent
or otherwise which are required to be reflected or reserved against in, or
otherwise provided for in the notes to, the AzurTec Financial Statements under
generally accepted accounting principles and which are not so reflected or
reserved against therein or in the notes thereto.
(p) Intellectual Property.
---------------------
(i) For purposes of this Agreement, the term
"Intellectual Property" shall mean all patents and patent applications,
registered or unregistered trademarks, registered copyrights, service marks,
applications for registration thereof, trade names, inventions, processes,
designs and design rights, formulas, trade secrets, know-how, software and
computer programs and other items of intellectual property and property rights.
(ii) Schedule 5(p) contains a complete and correct list of
all patents, patent applications, confidential disclosures of inventions,
registered or unregistered trademarks, tradenames or servicemarks, registered
trademarks, tradenames or servicemarks applications, and all registered
copyrights or copyright applications which are, in the case of each item on said
lists, owned by AzurTec and its subsidiaries or in which AzurTec or its
subsidiaries has any rights or licenses.
AzurTec and its subsidiaries own, or possess adequate
rights to use, all Intellectual Property necessary for the conduct of the
business as presently conducted and as conducted since January 1, 2000.
Except as set forth on Schedule 5(p), neither AzurTec
nor any of its subsidiaries has any obligation to make payments of royalties or
other amounts or transfer any interest in such Intellectual Property to any
third party.
15
(iii) To the best knowledge of AzurTec, AzurTec and its
subsidiaries have obtained all necessary rights and licenses to use, copy and
distribute as part of the software programs used in the business the third-party
programming and materials contained in the software programs. AzurTec has
exercised reasonable efforts to maintain the source codes and system
documentation relating to the software programs. The software programs have been
maintained in confidence, except for end-user licenses solely for use in
connection with products of AzurTec and its subsidiaries purchased by such
end-users.
(iv) AzurTec and its subsidiaries have not received and
have no knowledge of any claims from any person or entity that the use of the
Intellectual Property by AzurTec and its subsidiaries infringes or conflicts
with any intellectual property right or other proprietary right of any person or
entity or that any person or entity is infringing upon any Intellectual Property
of AzurTec and its subsidiaries.
(v) Except as indicated in Schedule 5(p), to the best
knowledge of AzurTec, AzurTec and its subsidiaries have not granted, transferred
or assigned, or acquiesced in or permitted use without a license of, any right
or interest in the Intellectual Property to any person or entity, except
pursuant to non-exclusive end-user license agreements for internal purposes
only.
(vi) AzurTec has taken reasonable steps to secure from its
vendors, consultants, employees, and officers undertakings securing the
confidentiality of, and AzurTec's ownership, of its Intellectual Property, and
AzurTec will assign to PhotoMedex such undertakings in connection with the
Assignment Agreement.
(q) No Registration of Shares. AzurTec understands that: (i) the
-------------------------
PhotoMedex Shares, and PhotoMedex Warrant Shares, are being sold to AzurTec or
to Designated Holders, under certain contemplated exemptions from the
registration provisions of the Act; (ii) AzurTec and the Designated Holders are
acquiring such Shares without being furnished any offering literature or
prospectus other than publicly disseminated information regarding PhotoMedex and
its common stock and such financial and operating data concerning PhotoMedex and
its subsidiaries as is customarily made available to investors in transactions
of this nature; and (iii) the sale of the PhotoMedex Shares and PhotoMedex
Warrant Shares has not been examined by the Commission or by any agency charged
with the administration of the securities laws of any state or other
jurisdiction. AzurTec, and each of the Designated Holders, represents and
warrants, or will represent and warrant, that it has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of an investment in such shares and of making an informed
investment decision with respect thereto. AzurTec understands that PhotoMedex is
relying on the truth and accuracy of the representations, declarations and
warranties made herein or in separate subscription agreements by AzurTec and by
the Designated Holders, in selling the PhotoMedex Shares and PhotoMedex Warrant
Shares hereunder without having first registered such shares under the Act or
under the securities laws of any state or other jurisdiction.
16
(r) Investment Intent. The PhotoMedex Shares and PhotoMedex
-----------------
Warrant Shares being acquired by AzurTec and, to AzurTec's knowledge, each of
the Designated Holders, are being acquired in good faith solely for its own
account, for investment purposes only, and are not being purchased with a view
to or for the resale, distribution, subdivision or fractionalization thereof.
AzurTec and, to AzurTec's knowledge, each of the Designated Holders, do not
have, and will not have, any contract, undertaking, understanding, agreement or
arrangement, formal or informal, with any person to sell, transfer or pledge to
any person the PhotoMedex Shares and/or PhotoMedex Warrant Shares being acquired
hereunder, or any part thereof, and has no current plan to enter into any such
contract, undertaking, agreement or arrangement.
(s) Decision to Invest. AzurTec confirms, and each of the
------------------
Designated Holders will confirm, that, in making its decision to invest in the
PhotoMedex Shares and PhotoMedex Warrant Shares, it has relied solely upon
independent investigations made by its representatives and advisors, and that
such representatives and advisors have been given the opportunity to ask
questions of, and to receive answers from, management of PhotoMedex with respect
to PhotoMedex and PhotoMedex's capital stock.
6. Representations and Warranties of PhotoMedex. PhotoMedex represents and
--------------------------------------------
warrants to AzurTec as follows:
(a) No Registration of Shares. PhotoMedex understands that: (i)
-------------------------
the Class A Preferred Shares and the Common Shares are being sold to PhotoMedex
under certain exemptions from the registration provisions of the Act; (ii)
PhotoMedex is purchasing such shares without being furnished any offering
literature or prospectus other than publicly disseminated information regarding
AzurTec and its Capital Stock and such financial and operating data concerning
AzurTec and its subsidiaries as is customarily made available to investors in
transactions of this nature; and (iii) the sale of the Class A Preferred and
Common Shares has not been examined by the Commission or by any agency charged
with the administration of the securities laws of any state or other
jurisdiction. PhotoMedex represents and warrants that it has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of an investment in such Shares and of making an informed
investment decision with respect thereto. PhotoMedex understands that AzurTec is
relying on the truth and accuracy of the representations, declarations and
warranties made herein by PhotoMedex in selling the Class A Preferred and Common
Shares hereunder without having first registered such Shares under the Act or
under the securities laws of any state or other jurisdiction.
(b) Investment Intent. The AzurTec Shares being acquired by
-----------------
PhotoMedex hereunder are being acquired in good faith solely for its own
account, for investment purposes only, and are not being purchased with a view
to or for the resale, distribution, subdivision or fractionalization thereof.
PhotoMedex does not have any contract, undertaking, understanding, agreement or
arrangement, formal or informal, with any person to sell, transfer or pledge to
any person the AzurTec Preferred and/or Common Shares being acquired hereunder,
or any part thereof, and has no current plan to enter into any such contract,
undertaking, agreement or arrangement.
17
(c) Decision to Invest. PhotoMedex confirms that, in making its
------------------
decision to invest in the AzurTec Shares, it has relied solely upon independent
investigations made by its representatives and advisors, and that such
representatives and advisors have been given the opportunity to ask questions
of, and to receive answers from, management of AzurTec with respect to AzurTec
and AzurTec's capital stock.
(d) Authority. PhotoMedex has the corporate power to execute,
---------
deliver and carry out the terms and provisions of this Agreement and has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Agreement by PhotoMedex.
(e) No Consent Required. No authorization, consent or approval of,
-------------------
or exemption by, any governmental or public body or authority is required to
authorize, or is required in connection with, the execution, delivery and
performance of any of this Agreement, or the taking of any action contemplated
hereby, by PhotoMedex, except those that have been obtained or are available.
(f) No Conflicts. Neither the execution and delivery of this
------------
Agreement by PhotoMedex nor the consummation by PhotoMedex of the transactions
contemplated hereby will violate any applicable state law or require any
consent, approval or notice under, constitute a violation of, or default under,
or conflict with, any mortgage, loan, indenture, lease, contract, commitment,
agreement, understanding, arrangement or restriction of any kind, permit,
concession, grant, franchise or license, judgment, order, decree, statute, rule
or ordinance by which PhotoMedex is bound.
(g) Enforceability. This Agreement has been duly executed and
--------------
delivered by PhotoMedex and constitutes a legal, valid and binding obligation of
PhotoMedex enforceable against PhotoMedex in accordance with its terms, except
as enforceability may be restricted, limited or delayed by applicable bankruptcy
or other laws affecting creditors' rights generally, and except as
enforceability may be subject to general principles of equity.
(h) Issuance. Upon delivery to AzurTec and/or the Designated
--------
Holders of certificates representing the PhotoMedex Shares against payment in
accordance with the terms of this Agreement, the PhotoMedex Shares will have
been validly issued and fully paid and non-assessable, free and clear of all
pledges, liens and encumbrances.
7. Registration of PhotoMedex Shares.
---------------------------------
(a) Registration.
------------
Subject to the other provisions of this Section 7 and at the request of
AzurTec, or Designated Holders holding at least a majority of the PhotoMedex
Shares and the PhotoMedex Warrant Shares (collectively, in this Section 7, the
"PhotoMedex Shares"), after the timely fulfillment of the covenant described in
Section 2(c)(iii) or after the non-fulfillment of that covenant and the lapse of
the period of time within which such condition was to be fulfilled, as the case
may be, PhotoMedex shall use its best efforts, within 45 days of such request,
to cause the PhotoMedex Shares to be registered under the Act on Form S-3 (or
any successor thereto) or, if PhotoMedex is not eligible to register the
PhotoMedex Shares on Form S-3 due to the failure of PhotoMedex to
18
meet the eligibility requirements set forth in General Instruction 1(A) to Form
S-3 as then in effect, on such other Form as the Company is eligible to use to
register such Shares, and to cause such Shares to be qualified in such
jurisdictions as AzurTec, or Designated Holders holding at least a majority of
the PhotoMedex Shares, may reasonably request, all to the extent required to
permit the distribution of the PhotoMedex Shares so registered in accordance
with the method or methods of distribution thereof as specified by PhotoMedex.
PhotoMedex is obligated to effect one such registration that has been declared
or ordered effective and remained effective for the period specified in Section
7(b)(i) hereof and may elect to effect a registration of all PhotoMedex Shares
in a single registration. The right of AzurTec or Designated Holders holding at
least a majority of the PhotoMedex Shares to request such registration shall
expire on the first anniversary date of the Closing. PhotoMedex shall not be
obligated, in any twelve-month period, to effect more than one registration that
is declared or ordered effective and remains effective for the period specified
in Section 7(b)(i) hereof. Notwithstanding the foregoing provision of Section
7(a), PhotoMedex may defer its obligation to file a registration statement
hereunder for period of up to forty-five (45) days, provided that PhotoMedex
shall furnish to AzurTec and the Designated Holders a certificate signed by the
President of PhotoMedex exercising such right of deferral and stating that, in
the good faith judgment of the Board of Directors of PhotoMedex, it would be
detrimental to PhotoMedex or its stockholders for a registration statement to be
filed at such time. PhotoMedex's ability to defer a registration obligation
hereunder shall be limited to one deferral.
(b) Registration Procedures. Inclusive of the provisions of
-----------------------
Section 12(k) below, all expenses incurred in connection with the registration
of the PhotoMedex Shares under this Section 7 (including without limitation all
registration, filing, listing, qualification, blue sky, printer's and accounting
fees, the fees and disbursements of PhotoMedex's counsel and accountants) shall
be borne by PhotoMedex. In connection with registrations under this Section 7,
PhotoMedex shall:
(i) use its best efforts to prepare and file with the
Commission as soon as reasonably practicable a registration statement with
respect to the PhotoMedex Shares and use its best efforts to cause such
registration to promptly become and remain effective until the earlier of the
sale of all PhotoMedex Shares covered thereby or twelve (12) months after the
effective date thereof;
(ii) use its best efforts to register and qualify the
PhotoMedex Shares covered by such registration statement under applicable state
securities laws as AzurTec shall reasonably request for the distribution of the
PhotoMedex Shares;
(iii) take such other actions as are reasonable and
necessary to comply with the requirements of the Act and the regulations
thereunder with respect to the registration and distribution of the PhotoMedex
Shares;
(iv) prepare and file with the 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 the period specified in Section 7(b)(i) above and comply with the
provisions of the Act with respect to the disposition of all PhotoMedex Shares
covered by such registration statement in accordance with the sellers' intended
method of disposition set forth in such registration statement for such period;
19
(v) furnish to AzurTec, no later than five (5) days prior
to the filing with the Commission, a copy of the registration statement and each
amendment thereto proposed to be filed, and provide AzurTec the opportunity to
comment thereon;
(vi) furnish to each seller of PhotoMedex Shares (as by
posting on its website) such number of copies of the registration statement and
the prospectus included herein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or other
disposition of the Shares covered by such registration statement;
(vii) immediately notify (as, for example, by posting on
its website) each seller of PhotoMedex Shares under such registration statement,
at any time when a prospectus relating thereto is required to be delivered under
the Act, of the happening of any event of which PhotoMedex has knowledge as a
result of which the prospectus contained in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(viii) immediately notify (as by posting on its website)
each seller of PhotoMedex Shares under such registration statement of (a) the
filing of a registration statement and each amendment thereto, (b) the
effectiveness of such registration statement and any post-effective amendment
thereto, (c) any request by the Commission for amendment or supplement to such
registration statement or the prospectus contained therein, (d) the issuance by
the Commission of any stop order suspending the effectiveness of such
registration statement or (e) the issuance by any state regulatory authority or
securities commission of any order suspending the qualification or exemption
from qualification of the Shares being offered for sale to the public;
(ix) make available for inspection by each seller of
PhotoMedex Shares, and any attorney, accountant or other agent retained by such
seller, all financial and other records, pertinent corporate documents and
properties of PhotoMedex and cause PhotoMedex's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement; and
(x) take such other actions as are reasonably required by
AzurTec to expedite or facilitate the disposition of the PhotoMedex Shares.
Notwithstanding the forgoing, PhotoMedex is not obligated to
effect registration or qualification under this Section 7 in any jurisdiction
requiring it to qualify to do business (unless PhotoMedex is otherwise required
to be so qualified) or to execute a general consent to service of process.
(c) Cooperation of AzurTec. AzurTec shall furnish to PhotoMedex
----------------------
such information and execute such documents regarding the PhotoMedex Shares and
the intended method of disposition thereof as PhotoMedex shall reasonably
request in writing and as shall be required in connection with the registration,
qualification or compliance referred to in this Agreement to be taken by
PhotoMedex.
20
(d) Transfer of Registration Rights. The rights to request
-------------------------------
PhotoMedex to register the Shares granted under this Section 7 may be assigned
or otherwise conveyed only to a transferee who is an "affiliate", as that term
is defined under Rule 144 under the Act, or other permitted transferee of
AzurTec at the time of such transfer; provided that PhotoMedex is given written
notice by AzurTec at the time of or within a reasonable time after said
transfer, stating the name and address of the transferee and the transferee's
agreement to be bound by the provisions of this Section 7, which agreement shall
include AzurTec's and the transferee's acknowledgement that such transfer shall
not affect in any respect PhotoMedex's obligations under this Section 7 other
than to permit such transferee to enforce and to enjoy the benefit of the
obligations incurred by PhotoMedex this Section 7. Notwithstanding the
foregoing, it is acknowledged and agreed that AzurTec may exercise rights under
this Section 7 on behalf of the Designated Holders.
8. Registration of AzurTec Shares.
------------------------------
Consistent with Section 4(e), if AzurTec registers shares of its
capital stock with the Commission, it shall accord the same privileges and
benefits pari passu to holders of the AzurTec Preferred Shares and AzurTec
Common Shares originally issued to PhotoMedex as it does to any other holder of
AzurTec shares participating in the registration.
9. Indemnification.
---------------
(a) Indemnification by AzurTec. AzurTec will indemnify and hold
--------------------------
harmless PhotoMedex and its officers, directors, lawyers and accountants and (in
the case of an underwritten public offering made pursuant to the exercise of
PhotoMedex's rights under Section 8) each underwriter, and each controlling
person (within the meaning of Section 15 of the Act) of PhotoMedex and (in the
case of an underwritten public offering made pursuant to the exercise of
PhotoMedex's rights under Section 8) each such underwriter, against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on: (i) any breach of any representation, warranty, covenant or other
agreement made by AzurTec in this Agreement or (ii) (in the case of an
underwritten public offering made pursuant to the exercise of PhotoMedex's
rights under Section 8) any untrue statement (or alleged untrue statement) of a
material fact contained in any registration statement relating to offered shares
(or in any related registration statement, prospectus, amendment or supplement
thereto, notification or the like) or any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or any violation by AzurTec of any rule
or regulation promulgated under the Act applicable to AzurTec and relating to
action or inaction required of AzurTec in connection with any such registration,
qualification or compliance, and AzurTec will reimburse PhotoMedex and its
officers, directors, lawyers and accountants, each controlling person of
PhotoMedex and (in the case of an underwritten public offering made pursuant to
the exercise of PhotoMedex's rights under Section 8) each such underwriter and
controlling person of such
21
underwriter for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action and (in the case of an underwritten public offering made
pursuant to the exercise of PhotoMedex's rights under Section 8) will enter into
an indemnification agreement with PhotoMedex and each such underwriter
containing customary provisions, including provisions for contribution, as
PhotoMedex shall reasonably request; provided, however, that (in the case of an
underwritten public offering made pursuant to the exercise of PhotoMedex's
rights under Section 8) AzurTec will not be liable in any such case under such
indemnification agreement to the extent that any such claim, loss, damage or
liability arises out of or is based on any untrue statement or omission based
upon and in conformity with written information furnished to AzurTec by
PhotoMedex or any such underwriter stated to be specifically for use therein.
(b) Indemnification by PhotoMedex. PhotoMedex agrees to indemnify
-----------------------------
and hold harmless AzurTec, each of its directors and officers, and (in the case
of an underwritten public offering made pursuant to the exercise of AzurTec's
rights under Section 7) each of its officers who has signed the registration
statement and each person, if any, who controls AzurTec within the meaning of
Section 15 of the Act, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on (i) any breach of any
representation, warranty, covenant or agreement made by PhotoMedex in this
Agreement, or (ii) (in the case of an underwritten public offering made pursuant
to the exercise of AzurTec's rights under Section 7) any untrue statement (or
alleged untrue statement) of a material fact contained in any registration
statement relating to the PhotoMedex Shares or PhotoMedex Warrant Shares (or in
any related registration statement, notification or the like) or any omission
(or alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
PhotoMedex will reimburse AzurTec and each such director, officer or controlling
person for any legal or any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action, and (in the case of an underwritten public offering made pursuant to the
exercise of AzurTec's rights under Section 7) will enter into an indemnification
agreement with AzurTec which shall contain customary provisions, including
provisions for contribution, as AzurTec shall reasonably request; provided,
however, that PhotoMedex will not be liable under such indemnification agreement
to the extent that any such claim, loss, damage or liability arises out of or is
based on any untrue statement or omission based upon information furnished to
PhotoMedex by AzurTec and stated to be specifically for use therein.
(c) Procedure for Indemnification. Each party entitled to
-----------------------------
indemnification under Section 9 (the "Indemnified Party") shall give notice to
the party required to provide indemnification (the "Indemnifying Party")
promptly after such indemnified Party has actual knowledge of any claim as to
which indemnity may be sought, and shall permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting, provided that counsel
for the Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 9 except to the extent
such failure to give notice has resulted in an adverse change in the obligations
of the Indemnifying Party hereunder. No Indemnifying Party, in the defense of
any such claim or litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement that does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation.
22
10. Finder's Fees. Each party represents to the other that it has not
-------------
engaged any finder or broker or is obligated to pay any finder's fee or broker's
commission with respect to this Agreement or the transaction contemplated
hereby.
11. Public Announcement. In the event either party hereto proposes to issue
-------------------
any press release or public announcement concerning, or otherwise divulge, any
provisions of this Agreement, the agreements referred to herein, or the
transactions contemplated hereby or thereby, such party shall so advise the
other party, and the parties shall thereafter use their best efforts to cause
such announcement to comply with each party's respective obligations under
applicable securities laws.
12. Miscellaneous.
-------------
(a) Entire Agreement. This Agreement, in conjunction with the
----------------
Development Agreement, as amended, and the License Agreement, together with all
Exhibits, Appendixes and Schedules attached thereto, constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior and contemporaneous understandings and
agreements between the parties with respect to the subject matter of this
Agreement.
(b) Amendments. This Agreement may not be amended except by
----------
written instrument signed by duly authorized officers of the respective parties.
(c) Binding Effect. This Agreement will be binding upon and inure
--------------
to the benefit of the parties, their respective successors and permitted
assigns.
(d) Assignment. Neither party may assign this Agreement or the
----------
rights and obligations contained herein, except as specifically authorized
herein.
(e) Waivers. Except as otherwise provided in this Agreement, the
-------
failure of either of the parties to exercise their respective rights under this
Agreement regarding any misrepresentation, breach or default will not prevent
such party from exercising such or any other right under this Agreement
regarding such or any subsequent misrepresentation, breach or default.
(f) Notices. All notices required or permitted under this
-------
Agreement will be given in writing and will be deemed effective and given when
delivered in person or sent by certified or registered mail, postage and
certification pre-paid, or by commercial courier, addressed to the party to be
notified at its address written below or to such changed address as a party may
direct by notice given in the above manner.
23
If to AzurTec: AzurTec, Inc.
00 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: President
With copy to: Xxxxx Xxxxxx LLP
00 Xxxxx 00xx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxx, Esq.
If to PhotoMedex: PhotoMedex, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxxxxx, XX 00000
Attn: President
With copy to: Jenkens & Xxxxxxxxx, LLP
00000 Xxxxxxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Esq.
(g) Illegality. If any of the provisions of this Agreement are
----------
determined to be illegal or otherwise enforceable, in whole or in part, the
remaining provisions, and any partially enforceable provisions to the extent
enforceable, will be binding and enforceable.
(h) Captions. The paragraph and subparagraph headings of this
--------
Agreement are for convenience of reference only and are not part of this
Agreement.
(i) Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the Commonwealth of Pennsylvania
without regard to its rules on conflicts of law. Each of the parties consents to
the jurisdiction of any federal or state court within the Commonwealth of
Pennsylvania in connection with any lawsuit arising out of this Agreement.
(j) Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original Agreement, and all of
which constitute one agreement to be effective as of the date of this Agreement.
(k) NASD Listing Fee. PhotoMedex agrees to pay the listing fee due
----------------
to the National Association of Securities Dealers, Inc. (the "NASD") with
respect to the listing of the PhotoMedex Shares and PhotoMedex Warrant Shares by
the Company with the NASD and Nasdaq.
(l) Survival of Representations and Warranties. All
------------------------------------------
representations and warranties of the parties herein shall survive the Closing
hereunder for a period of twelve months; provided, however, that neither party
shall have any liability to the other party hereto with respect to any claim for
breach of any such representation or warranties unless written notice of any
such claim is given pursuant to Section 12 hereof to the party against whom such
claim is asserted within such twelve month period.
24
(m) Expenses. Except as otherwise provided herein, each of the
--------
parties hereto shall assume and bear all expenses, costs and fees (including any
fees of investment banks, financial advisors, professional advisors and legal
counsel) incurred or assumed by such party in the preparation, execution and
delivery of this Agreement, whether or not the transactions contemplated hereby
are consummated.
(n) Confidentiality. The parties agree that the contents of this
---------------
Agreement will not be disclosed to any third party or government agency without
the prior written consent of the other party hereto, which consent shall not be
unreasonably withheld; provided, however, that either party may make such
disclosures as required by or appropriate under applicable laws without the
necessity of prior written consent.
(o) Board Visitation: Disclosure of Information.
-------------------------------------------
(i) AzurTec agrees that, for so long as PhotoMedex's
general ownership of AzurTec's Common Stock calculated on a fully diluted basis
(as set forth in Section 4(e)(i) hereof) is at least 5%, it shall, at
PhotoMedex's election, permit a designee nominated by PhotoMedex (e.g. Xx.
Xxxxxx X. Xxxxxxxxx) to attend all meetings of the AzurTec's Board of Directors
and to receive notices of all such meetings and copies of all financial
information furnished to AzurTec's Board of Directors; provided, however, that
AzurTec shall have no obligation to permit any such designees to attend meetings
of its Board of Directors or to furnish any such notices or information to such
designees unless and until AzurTec and PhotoMedex execute and deliver an
agreement in form and substance satisfactory to AzurTec, PhotoMedex and their
respective counsel regarding the protection of the confidentiality of the
matters discussed at such meetings and the information so furnished and the
indemnification by PhotoMedex of AzurTec, its officers, directors, employees and
agents for any liability arising out of or related to the disclosure of such
information by AzurTec to PhotoMedex or the use thereof by PhotoMedex, where
such an agreement is set forth in Schedule 12(o)(i).
(ii) PhotoMedex's designee shall not have a seat on
AzurTec's Board of Directors, nor shall it have any right to advise, consent or
veto, to the end that AzurTec and PhotoMedex may mutually benefit from candor
and collaboration, and equally to the end that AzurTec's Board of Directors may
enjoy independence of judgment so as to act in the best interest of all
shareholders of AzurTec.
25
IN WITNESS WHEREOF, the respective parties have caused this Agreement
to be executed by their respective duly authorized officers both as of the date
and year first above written.
AZURTEC, INC. PHOTOMEDEX, INC.
By: Xxxx Xxxxxxx By: /s/ Xxxxxxx X. X'Xxxxxxx
------------ ------------------------
Title: President Title: President & CEO
26
