FORM OF SECURITIES PURCHASE AGREEMENT
Exhibit 10.1
FORM OF SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this “Agreement”), dated as of April 24, 2012, by and among PhotoMedex, Inc., a Nevada corporation with headquarters located at 000 Xxxxxxxx Xxxxx, Xxxxxxxxxxxxxxx, Xxxxxxxxxxxx 00000 (the “Company”), and each investor identified on the signature pages hereto (individually, an “Investor” and collectively, the “Investors”).
BACKGROUND
A. The Company desires to sell, and the Investors desire to purchase, shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”).
B. The shares of Common Stock issued or issuable pursuant to this Agreement are collectively referred to herein as the “Securities.” The offering and sale of the Securities is sometimes hereinafter referred to as the “Offering.”
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and the Investors agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 Closing. Subject to the terms and conditions set forth in this Agreement, at the Closing (as defined below), the Company agrees to issue and sell to each Investor, and each Investor agrees, severally and not jointly, to purchase from the Company, such number of Securities for the price set forth on such Investor’s signature page to this Agreement. The date and time of the consummation of this Agreement (the “Closing”) shall be 10:00 a.m., New York City Time, in accordance with Rule 15c6-1 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on April 27, 2012 (the “Closing Date”) at the offices of Proskauer Rose LLP, 00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000.
1.2. Purchase Price. The per share purchase price to be paid by each Investor shall be based on the thirty (30) calendar day volume weighted-average price calculated immediately prior to the date of this Agreement, which is $[ ].
1.3 Closing Deliveries. Prior to the Closing, the Company and each Investor shall deliver all documents, instruments and writings required to be delivered by any of them pursuant to this Agreement in order to implement the and effect the consummation of the transactions contemplated herein.
(a) At the Closing, the Company shall deliver or cause to be delivered to each Investor the following:
(i) duly executed Transfer Agent Instructions acknowledged by the Company’s transfer agent; and
-1-
(ii) the number of Securities to each Investor as set forth on such Investor’s signature page to this Agreement through the electronic delivery systems of the Depository Trust Company directly to the account(s) identified by such Investor.
(b) At the Closing, each Investor shall deliver or cause to be delivered to the Company the purchase price set forth on such Investor’s signature page to this Agreement in United States dollars and in immediately available funds, by wire transfer to an account designated in writing to such Investor by the Company for such purpose.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of the Company. The Company hereby represents and warrants to the Investors as follows:
(a) The Company has prepared and filed in conformity with the requirements of the Securities Act of 1933, as amended (the “Securities Act”), and published rules and regulations thereunder (the “Rules and Regulations”) adopted by the Securities and Exchange Commission (the “Commission”) a “shelf” Registration Statement (as hereinafter defined) on Form S-3 (File No. 333-178751), which became effective as of January 13, 2012 (the “Effective Date”), including a base prospectus relating to the Securities (the “Base Prospectus”), and such amendments and supplements thereto as may have been required up to the date of this Agreement. The term “Registration Statement” as used in this Agreement means the registration statement (including all exhibits, financial schedules and all documents and information deemed to be a part of the Registration Statement pursuant to Rule 430B of the Rules and Regulations), as amended and/or supplemented to the date of this Agreement, including the Base Prospectus. The Registration Statement is effective under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are threatened by the Commission. The term “Prospectus” as used in this Agreement means the Prospectus, in the form in which it is to be filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations, or, if the Prospectus is not to be filed with the Commission pursuant to Rule 424(b), the Prospectus in the form included as part of the Registration Statement as of the Effective Date, except that if any revised prospectus or prospectus supplement shall be provided to the Investors by the Company for use in connection with the Offering which differs from the Prospectus (whether or not such revised prospectus or prospectus supplement is required to be filed by the Company pursuant to Rule 424(b) of the Rules and Regulations), the term “Prospectus” shall refer to such revised prospectus or prospectus supplement, as the case may be, from and after the time it is first provided to the Investors.
-2-
(b) At the time the Registration Statement and any amendments thereto became effective and at the date of this Agreement, the Registration Statement (including documents incorporated by reference therein) and any amendments thereto filed as of the applicable time, conformed and will conform in all material respects to the requirements of the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(c) At the date of this Agreement and at the Closing Date, the Prospectus, at the time the Prospectus was issued and at the Closing Date, conformed and will conform in all material respects to the requirements of the Securities Act and the Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Organization and Qualification. The Company and each subsidiary of the Company is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation, as the case may be, with the requisite legal authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any of its subsidiaries is in violation of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. The Company and each of its subsidiaries is duly qualified to do business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect. “Material Adverse Effect” means a material adverse effect on the results of operations, assets, business or financial condition of the Company and its subsidiaries taken as a whole on a consolidated basis, provided, that none of the following alone shall be deemed, in and of itself, to constitute a Material Adverse Effect: (i) a change in the market price or trading volume of the Common Stock or (ii) changes in general economic conditions or changes affecting the industry in which the Company operates generally (as opposed to Company-specific changes) so long as such changes do not have a disproportionate effect on the Company and its subsidiaries taken as a whole.
(e) Authorization; Enforcement. The Company has the requisite corporate authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company and no further consent or action is required by the Company, its Board of Directors or its stockholders. This Agreement has been duly executed by the Company and constitutes the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
-3-
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
(f) No Conflicts. The execution, delivery and performance of this Agreement and the consummation by the Company of the transactions contemplated hereby do not, and will not, (i) conflict with or violate any provision of the Company’s or its subsidiaries’ certificate or articles of incorporation, bylaws or other organizational or charter documents, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or its subsidiaries’ debt or otherwise) or other understanding to which the Company or any of its subsidiaries is a party or by which any property or asset of the Company or any of its subsidiaries are bound, or affected, except to the extent that such conflict, default, termination, amendment, acceleration or cancellation right would not reasonably be expected to have a Material Adverse Effect on the Company, or (iii) result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or any of its subsidiaries are subject (including, assuming the accuracy of the representations and warranties of the Investors set forth in Section 2.2 hereof, federal and state securities laws and regulations and the rules and regulations of any self-regulatory organization to which the Company or its securities are subject, including the NASDAQ Stock Market), or by which any property or asset of the Company or any of its subsidiaries are bound or affected, except to the extent that such violation would not reasonably be expected to have a Material Adverse Effect on the Company.
(g) The Securities. The Securities to be issued and sold by the Company to the Investors hereunder have been duly and validly authorized and, when issued and delivered by the Company against payment therefor as provided herein, will be duly and validly issued, fully paid, nonassessable, free of all liens and any preemptive or similar rights and will conform to the description thereof contained in the Prospectus.
(h) Consent. Except for the registration of the Securities under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act or foreign securities laws, the Financial Industry Regulatory Authority (“FINRA”) and the NASDAQ Global Select Market in connection with the Offering hereunder by the Company, each of which that is required by law or applicable rule to be acquired by the latter of the Closing Date or as otherwise required under applicable law, shall have been obtained by such date, no consent, approval, authorization or order of, or filing, qualification or registration with, any court or governmental agency or body, foreign or domestic, which has not been made, obtained or taken and is not in full force and effect, is
-4-
required for the execution, delivery and performance of this Agreement by the Company, the offer or sale of the Securities or the consummation of the transactions contemplated hereby.
2.2 Representations and Warranties of the Investors. Each Investor hereby, as to itself only and for no other Investor, represents and warrants to the Company as follows:
(a) Organization; Authority. Such Investor is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with the requisite corporate, partnership or other power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The purchase by such Investor of the Securities hereunder has been duly authorized by all necessary corporate, partnership or other action on the part of such Investor. This Agreement has been duly executed and delivered by such Investor and constitutes the valid and binding obligation of such Investor, enforceable against it in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law,
(b) No Conflicts. The execution, delivery and performance by such Investor of this Agreement and the consummation by such Investor of the transactions contemplated hereby will not (i) result in a violation of the organizational documents of such Investor or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which such Investor is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to such Investor, except in the case of clauses (ii) and (iii) above, for such that are not material and do not otherwise affect the ability of such Investor to consummate the transactions contemplated hereby.
(c) No Short Sales. Since the date on which the Investor was first contacted about making an investment in the Company’s Securities hereunder, it has not disclosed any information regarding this Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any transactions involving the securities of the Company (including, without limitation, any Short Sales involving the Company’s securities). The Investor covenants that it will not engage in any transactions in the securities of the Company (including Short Sales, as defined below) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated
-5-
under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-US broker dealers or foreign regulated brokers.
(d) Experience of Such Investor. Such Investor, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of an investment in the Securities, and has so evaluated the merits and risks of such investment. Such Investor understands that it must bear the economic risk of this investment in the Securities indefinitely, and is able to bear such risk and is able to afford a complete loss of such investment. Such Investor acknowledges that neither the Company nor any of its officers, directors, employees, agents, representatives or advisors have made any representation or warranty other than those specifically expressed and set forth in this Agreement.
(e) No Legal, Tax or Investment Advice. The Investor understands that nothing in this Agreement, the Registration Statement, the Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Securities constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Securities. Each Investor assumes full responsibility for all such consequences and for the preparation and filing of all tax returns and elections which may or must be filed in connection with the Securities.
(f) Compliance with Law. (1) No action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Securities, or possession or distribution of offering materials in connection with the issuance of the Securities in any jurisdiction outside the United States where action for that purpose is required and (2) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense. Each Investor has independently consulted with legal counsel and after such consultation has deemed this investment to be advisable and this Agreement to be reasonable and proper.
(g) Access to Information. The Investor represents that it has received (or otherwise had made available to it by the filing by the Company of an electronic version thereof with the Commission) and reviewed the Prospectus, the Company’s Registration Statement and the documents incorporated by reference therein and any free writing prospectus, prior to or in connection with the receipt of this Agreement.
(h) Money Laundering. The operations of each Investor are and have been conducted at all times in compliance with applicable financial recordkeeping and
-6-
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the USA PATRIOT Act, applicable money laundering statutes of all jurisdictions in which it operates and the applicable rules, related rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Investor or any of its affiliates or subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Investor, threatened against such Investor.
ARTICLE III
OTHER AGREEMENTS OF THE PARTIES
3.1 Securities Laws Disclosure; Publicity. The Company and the Investor agree that the Company shall issue a press release and file a Form 8-K announcing the Offering and disclosing all material terms and conditions of the Offering hereunder prior to the opening of the financial markets in New York City on the business day immediately after the date hereof; provided, however, that the identity of the investor shall not be disclosed in such Form 8-K filing or press release.
ARTICLE IV
CONDITIONS
4.1 Conditions Precedent to the Obligations of the Investors. The obligation of each Investor to acquire the Securities at the Closing is subject to the satisfaction or waiver by such Investor, at or before the Closing, of each of the following conditions:
(a) Representations and Warranties. The representations and warranties of the Company contained herein shall be true and correct in all material respects as of the date when made and as of the Closing as though made on and as of such date; and
(b) Performance. The Company and each other Investor shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by it at or prior to the Closing.
(c) No Suspensions of Trading in Common Stock; Listing. Trading in the Common Stock shall not have been suspended by the SEC or on the NASDAQ Stock Market (except for any suspensions of trading of not more than one Trading Day (as defined below) on the NASDAQ Stock Market solely to permit dissemination of material information regarding the Company) at any time since the date of execution of this Agreement, the Common Stock shall have been at all times since such date listed
-7-
for trading on the NASDAQ Global Stock Market and the Company shall have obtained NASDAQ Stock Market approval for the listing of the Securities. “Trading Day” means a day on which the Common Stock is traded on the NASDAQ Global Select Market or, if no shares of Common Stock are traded on any such day, then such day as trading generally on the NASDAQ Global Select Market is taking place and has not been suspended.
4.2 Conditions Precedent to the Obligations of the Company. The obligation of the Company to sell the Securities at the Closing is subject to the satisfaction or waiver by the Company, at or before the Closing, of each of the following conditions:
(a) Representations and Warranties. The representations and warranties of the Investors contained herein shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made on and as of such date; and
(b) Performance. The Investors shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Investors at or prior to the Closing.
ARTICLE V
MISCELLANEOUS
5.1 Termination. This Agreement may be terminated by the Company or any Investor, by written notice to the other parties, if the Closing has not been consummated by the fifth Trading Day following the date of this Agreement; provided that no such termination will affect the right of any party to xxx for any breach by the other party (or parties).
5.2 Fees and Expenses. Each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. Notwithstanding the foregoing, the Investors shall be paid an advisory expense reimbursement fee equal to 7.45% of the gross proceeds of the Securities purchased hereunder, payable within 10 business days from the Closing Date of the Offering. The Company shall pay all transfer agent fees, stamp taxes and other taxes and duties levied in connection with the sale and issuance of the Securities.
5.3 Participation Right. In connection with a subsequent offering of Common Stock under the Registration Statement, each of the Investors shall have the right to maintain its percentage of ownership in the Common Stock of the Company in connection with such subsequent securities offering, at the same price to be paid by the purchasers or underwriter, as the case may be, in such subsequent offering. The Investor’s participation set forth in this Section 5.3 shall (i)
-8-
automatically terminate on the 60th day following the execution of this Agreement, and (ii) exclude the concurrent underwritten offering of the same date as this Agreement.
5.4 Entire Agreement. This Agreement, together with the Exhibits and Schedules hereto, contain the entire understanding of the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
5.5 Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is delivered via facsimile or email at the facsimile number or email address specified in this Section prior to 6:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile or email at the facsimile number or email address specified in this Section on a day that is not a Trading Day or later than 6:30 p.m. (New York City time) on any Trading Day, (c) the Trading Day following the date of deposit with a nationally recognized overnight courier service, or (d) upon actual receipt by the party to whom such notice is required to be given. The addresses, facsimile numbers and email addresses for such notices and communications are those set forth on the signature pages hereof, or such other address or facsimile number as may be designated in writing hereafter, in the same manner, by any such Person. “Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, a government or any department or agency thereof and any other legal entity.
5.6 Amendments; Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed, in the case of an amendment, by the Company and each of the Investors or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right.
5.7 Construction. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.
5.8 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The
-9-
Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Investors. Any Investor may assign its rights under this Agreement to any Person to whom such Investor assigns or transfers any Securities, provided (i) such transferor agrees in writing with the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the Company after such assignment, (ii) the Company is furnished with written notice of the name and address of such transferee or assignee, (iii) following such transfer or assignment, the further disposition of such securities by the transferee or assignee is restricted under the Securities Act and applicable state securities laws, (iv) such transferee agrees in writing to be bound, with respect to the transferred Securities, by the provisions hereof that apply to the “Investors” and (v) such transfer shall have been made in accordance with the applicable requirements of this Agreement and with all laws applicable thereto.
5.9 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.
5.10 Governing Law; Venue; Waiver of Jury Trial. THE CORPORATE LAWS OF THE STATE OF NEW YORK SHALL GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS STOCKHOLDERS. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE COMPANY AND INVESTORS HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN FOR THE ADJUDICATION OF ANY DISPUTE BROUGHT BY THE COMPANY OR ANY INVESTOR HEREUNDER, IN CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO THE ENFORCEMENT OF THIS AGREEMENT), AND HEREBY IRREVOCABLY WAIVE, AND AGREE NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING BROUGHT BY THE COMPANY OR ANY INVESTOR, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, OR THAT SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY
-10-
RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. THE COMPANY AND INVESTORS HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
5.11 Survival. The representations and warranties, agreements and covenants contained herein shall survive the Closing.
5.12 Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or email attachment, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or email-attached signature page were an original thereof.
5.13 Severability. If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement.
5.14 Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Investors and the Company will be entitled to seek specific performance under the Underwriting Agreement. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations described in the foregoing sentence and hereby agree to waive in any action for specific performance of any such obligation (other than in connection with any action for a temporary restraining order) the defense that a remedy at law would be adequate.
5.15 Adjustments in Share Numbers and Prices. In the event of any stock split, subdivision, dividend or distribution payable in shares of Common Stock (or other securities or rights convertible into, or entitling the holder thereof to receive directly or indirectly shares of Common Stock), combination or other similar recapitalization or event occurring after the date hereof, each reference in this Agreement to a number of shares or a price per share shall be amended to appropriately account for such event.
5.16 Independent Nature of Investors’ Obligations and Rights. The obligations of each Investor under this Agreement are several and not joint with the obligations of any other Investor, and no Investor shall be responsible in any way for the performance of the obligations of any other Investor hereunder. The decision of each Investor to purchase Securities pursuant to this Agreement has
-11-
been made by such Investor independently of any other Investor and independently of any information, materials, statements or opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company which may have been made or given by any other Investor or by any agent or employee of any other Investor, and no Investor or any of its agents or employees shall have any liability to any other Investor (or any other Person) relating to or arising from any such information, materials, statements or opinions. Nothing contained herein, and no action taken by any Investor pursuant thereto, shall be deemed to constitute the Investors as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Investors are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated hereunder. Each Investor acknowledges that no other Investor has acted as agent for such Investor in connection with making its investment hereunder and that no other Investor will be acting as agent of such Investor in connection with monitoring its investment hereunder. Each Investor shall be entitled to independently protect and enforce its rights, including without limitation the rights arising out of this Agreement, and it shall not be necessary for any other Investor to be joined as an additional party in any legal proceeding for such purpose.
[SIGNATURE PAGES TO FOLLOW]
-12-
IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| PHOTOMEDEX, INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Address for Notice: | ||
| PhotoMedex, Inc. | ||
| 000 Xxxxxxxx Xxxxx | ||
| Xxxxxxxxxxxxxxx, XX 00000 Tel: 000-000-0000 | ||
| Fax: 000-000-0000 Attn: Xxxxx Xxxxxxxx, Esq. | ||
| With a copy to: | ||
| Proskauer Rose LLP | ||
| Xxxxxx Xxxxx Xxxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Tel: 000-000-0000 | ||
| Fax: 000-000-0000 | ||
| Attn: Xxxx Xxxxxxx, Esq. | ||
COMPANY SIGNATURE PAGE
-13-
INVESTOR SIGNATURE PAGE
By its execution and delivery of this signature page, the undersigned Investor hereby joins in and agrees to be bound by the terms and conditions of the Securities Purchase Agreement dated as of April 24, 2012 (the “Purchase Agreement”) by and among PhotoMedex, Inc. and the Investors (as defined therein), as to the number of shares of Common Stock set forth below, and authorizes this signature page to be attached to the Securities Purchase Agreement or counterparts thereof.
| Name of Investor: | ||
|
| ||
| By: |
| |
| Name: | ||
| Title: | ||
| Address: |
| |
|
| ||
| Telephone No.: | ||
| _________________________________ | ||
| Facsimile No.: | ||
| _________________________________ | ||
| Email Address: | ||
| _________________________________ | ||
| Number of Shares: | ||
| _________________________________ | ||
| Aggregate Purchase Price: $ | ||
Delivery Instructions (if different than above):
| c/o: ________________________________________________________________ |
| Address: __________________________________________________________________ |
| Telephone No.: _________________________________________________________________ |
| Facsimile No. : __________________________________________________________________ |
| Other Special Instructions: _____________________________________________________ |
| Exhibits: |
-14-
| A | Company Transfer Agent Instructions |
-15-
Exhibit A
COMPANY TRANSFER AGENT INSTRUCTIONS
Broadridge Corporate Issuer Solutions, Inc.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
| Re: | Public Offering of Shares of Common Stock of PhotoMedex, Inc. |
Ladies and Gentlemen:
We refer you to the Securities Purchase Agreement (the “SPA”), dated as of April 24, 2012, pursuant to which PhotoMedex, Inc., a Nevada corporation (the “Company”), has agreed to sell to the purchasers executing that certain SPA, an aggregate of 940,910 shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”).
You are hereby instructed, as Transfer Agent and Registrar for the Common Stock to cause an aggregate of 940,910 shares of Common Stock to be issued and registered to the Purchasers set forth on Annex I to this Instruction Letter, each of whose prime brokers will initiate one DWAC transaction using its DTC Participant number set forth therein at Closing on behalf of each Purchaser.
The closing of the above transaction is to take place on April 27, 2012 at 10:00 a.m., E.S.T. time, at the offices of Proskauer Rose LLP, 00 Xxxxx Xxxxxx, XX, XX 00000 (the “Closing”). Delivery of such shares of Common Stock by you shall be made upon the Company’s authorization by telephone at the time of the Closing in New York, NY.
-16-
| Sincerely, | ||
| PHOTOMEDEX, INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
The undersigned, as Transfer Agent, acknowledges the foregoing instructions with respect to the Common Stock referred to above.
| BROADRIDGE CORPORATE ISSUER SOLUTIONS, INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
-17-
