SUPPLEMENT TO SECURITIES PURCHASE AGREEMENT
SUPPLEMENT TO SECURITIES PURCHASE AGREEMENT (this "SUPPLEMENT"), dated
as of May 23, 1997, by and among PALOMAR MEDICAL TECHNOLOGIES, INC., a
corporation organized under the laws of the State of Delaware (the "Company"),
with headquarters located at 00 Xxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000,
RGC INTERNATIONAL INVESTORS, LDC ("RGC") and (i) each of the investors (the
"CURRENT INVESTORS") set forth on the execution pages hereof (the "EXECUTION
PAGES") and (ii) each of the investors (the "SUBSEQUENT INVESTORS" and together
with the Current Investors, the "ADDITIONAL INVESTORS") set forth on the
Execution Pages which may hereafter be appended to this Supplement in accordance
with Section 7 hereof.
WHEREAS:
A. The Company and RGC are parties to a Securities Purchase Agreement
dated as of March 27, 1997 (the "ORIGINAL SECURITIES PURCHASE AGREEMENT" and as
supplemented by this Supplement, the "SECURITIES PURCHASE AGREEMENT") pursuant
to which the Company sold to RGC, and RGC purchased from the Company, 6,000
shares of the Company's Series H Convertible Preferred Stock ("SERIES H STOCK");
B. Contemporaneous with their execution and delivery of the Original
Securities Purchase Agreement, the Company and RGC executed and delivered a
Registration Rights Agreement, in the form attached as Exhibit B to the
Securities Purchase Agreement (the "ORIGINAL REGISTRATION RIGHTS AGREEMENT"),
pursuant to which the Company agreed to provide certain registration rights
under the Securities Act and the rules and regulations promulgated thereunder,
and applicable state securities laws;
C. The Original Securities Purchase Agreement contemplates the sale by
the Company of up to an additional 14,000 shares of Series H Stock thereunder
and the Company desires to sell to each Additional Investor, and each Additional
Investor desires to purchase from the Company, pursuant to and upon the terms
and conditions stated in the Securities Purchase Agreement, such number of
shares of the Company's Series H Stock as are set forth on the Execution Page
hereof executed by such Additional Investor, up to an aggregate of 14,000
shares;
D. Contemporaneous with the execution and delivery of this Supplement,
the Company, RGC and the Current Investors are executing and delivering (or will
execute and deliver in the case of the Subsequent Investors) a Supplement to the
Registration Rights Agreement, in the form attached hereto as Exhibit A (the
Original Registration Rights Agreement as supplemented thereby, being
hereinafter referred to as the "REGISTRATION RIGHTS AGREEMENT"), pursuant to
which the Company has agreed to extend to the Additional Investors the benefits,
rights and obligations set forth in the Original Registration Rights Agreement.
E. All other capitalized terms used herein and not otherwise defined in
this Supplement shall have the meanings set forth in the Original Securities
Purchase Agreement.
NOW, THEREFORE, the Company, RGC and the Additional Investors hereby
agree to amend and supplement the Original Securities Purchase Agreement as
follows:
1. DEFINITIONS. The definitions of the following terms contained in the
Original Securities Purchase Agreement are amended as follows:
(a) "RGC" shall mean RGC International Investors, LDC.
(b) "PURCHASERS" shall be deemed to include RGC and each of the
Additional Investors.
(c) "PREFERRED SHARES" shall mean all of the shares of Series H Stock
purchased by the Purchasers pursuant to the Securities Purchase Agreement
(whether on the initial Closing Date or on an Additional Closing Date (as
defined in Section 1(e)(ii) of the Securities Purchase Agreement)).
(d) "ADDITIONAL INVESTORS," "CURRENT INVESTORS," "SUBSEQUENT INVESTORS,"
"SECURITIES PURCHASE AGREEMENT" and "REGISTRATION RIGHTS AGREEMENT" shall have
the meanings set forth in the recitals to this Supplement.
(e) "SEC DOCUMENTS" shall have the meaning set forth in the Original
Securities Purchase Agreement but shall include all reports, schedules, forms,
statements and other documents filed by the Company with the SEC pursuant to the
Exchange Act prior to the date of the Additional Closing contemplated by Section
1(b) of the Securities Purchase Agreement.
2. Section 1 of the Original Securities Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
"1. PURCHASE AND SALE OF PREFERRED SHARES.
(a) Purchase of Preferred Shares by RGC. On the Closing Date
(as defined below), subject to the satisfaction (or waiver) of the
conditions set forth in Sections 6 and 7 below, the Company shall issue
and sell to RGC and RGC severally agrees to purchase from the Company,
such number of Preferred Shares as is set forth on RGC's signature page
hereto. The purchase price (the "PURCHASE PRICE") per Preferred Share
at such closing shall be equal to One Thousand Dollars ($1,000.00) and
the aggregate purchase price for all of the Preferred Shares to be
purchased by RGC shall be Six Million Dollars ($6,000,000.00). For the
avoidance of doubt, in no event shall RGC be required to purchase more
than the number of Preferred Shares being subscribed for hereunder by
RGC as set forth on RGC's Execution Page. The Company may sell up to
Fourteen Million Dollars ($14,000,000.00) of additional Preferred
Shares, at One Thousand Dollars ($1,000.00) per Preferred Share, at the
additional closings (the "ADDITIONAL CLOSINGS") contemplated by
Sections 1(b) and 1(c) below.
(b) Purchase of Preferred Shares by Current Investors. The
Purchase of the Preferred Shares by the Current Investors may take
place at an Additional Closing; PROVIDED, HOWEVER, that such Additional
Closing may not occur after May 7, 1997. On such Additional Closing
Date, subject to the satisfaction (or waiver) of the conditions set
forth in Sections 6 and 7 below, the Company shall issue and sell to
each Current Investor purchasing Preferred Shares on such Additional
Closing Date and each Current Investor purchasing Preferred Shares on
such Additional Closing Date severally agrees to purchase from the
Company, such number of Preferred Shares as is set forth on such
Current Investor's signature page hereto. The purchase price per
Preferred Share at such Additional Closing shall be equal to the
Purchase Price. For the avoidance of doubt, in no event shall any
Current Investor be required to purchase more than the number of
Preferred Shares being subscribed for hereunder by such Current
Investor as set forth on such Current Investor's Execution Page.
(c) Purchase of Preferred Shares by Subsequent Investors. The
purchase of the Preferred Shares by the Subsequent Investors may take
place at one or more Additional Closings; PROVIDED, however, that no
Additional Closing may occur after June 19, 1997 or if the additional
conditions set forth in Section 1(f) hereof for such Additional Closing
are not satisfied. On each such Additional Closing Date, subject to the
satisfaction (or waiver) of the conditions set forth in Sections 6 and
7 below, the Company shall issue and sell to each Subsequent Investor
purchasing Preferred Shares on such Additional Closing Date and each
Subsequent Investor purchasing Preferred Shares on such Additional
Closing Date severally agrees to purchase from the Company, such number
of Preferred Shares as is set forth on such Subsequent Investor's
signature page hereto. The purchase price per Preferred Share at each
such Additional Closing shall be equal to the Purchase Price and the
aggregate purchase price for all of the Preferred Shares to be
purchased by the Subsequent Investors shall not exceed Seven Million
Dollars ($7,000,000).
(d) Form of Payment. On the Closing Date or Additional Closing
Date (as applicable), the Purchaser shall pay the aggregate Purchase
Price for the Preferred Shares being purchased by such Purchaser at
such closing by wire transfer to the Company, in accordance with the
Company's written wiring instructions, against delivery of duly
executed certificates representing the Preferred Shares being purchased
by the Purchaser hereunder and the Company shall deliver such
certificates against delivery of such aggregate Purchase Price.
(e) Closing Date and Additional Closing Date.
(i) Subject to the satisfaction (or waiver) of the
conditions thereto set forth in Section 6 and Section 7 below,
the date and time of the issuance and sale of the Preferred
Shares to RGC pursuant to this Agreement (the "CLOSING DATE")
was at 12:00 noon eastern time on March 31, 1997. This closing
occurred at the offices of Xxxxx, Xxxx & Xxxxx, LLP, Xxx Xxxx
Xxxxxx Xxxxxx, Xxxxxx XX 00000.
(ii) Subject to the satisfaction (or waiver) of the
conditions thereto set forth in Section 6 and Section 7 below,
the date, place and time of each issuance and sale of
Preferred Shares to an Additional Investor pursuant to this
Agreement (each, an "ADDITIONAL CLOSING DATE") shall be on
such date as may be mutually agreed upon by the Company and
such Additional Investor."
(f) Additional Closing Conditions With Respect to Sales to
Subsequent Purchasers. If (i) a Subsequent Investor has not been
approved in writing by State Capital Market Group, Ltd. and (ii) the
average of the Closing Bid Prices (as defined in the Certificate of
Designation) for the Common Stock for the five (5) trading days
immediately preceding an Additional Closing Date is not greater than or
equal to $4.50 per share, the Company may not sell Preferred Shares to
a Subsequent Investor; PROVIDED, HOWEVER, that the restriction
contained in clause (ii) of this sentence shall not apply to the first
three thousand (3,000) Preferred Shares sold by the Company to
Subsequent Investors.
3. Sections 6 and 7 of the Original Securities Purchase Agreement are
amended and restated in their entireties to read as follows:
"6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell the
Preferred Shares to RGC on the Closing Date or to the Additional Investors on
the Additional Closing Date is subject to the satisfaction, at or before the
Closing Date or Additional Closing Date (as applicable), of each of the
following conditions thereto, provided that these conditions are for the
Company's sole benefit and may be waived by the Company at any time in its sole
discretion.
(a) The applicable Purchaser shall have executed the signature page to
the this Agreement and the Registration Rights Agreement, and delivered the same
to the Company.
(b) The applicable Purchaser shall have delivered the Purchase Price for
the Preferred Shares purchased in accordance with Section 1(c) above.
(c) The representations and warranties of the applicable Purchaser shall
be true and correct as of the date when made and as of the Closing Date (solely
in the case of RGC) or the Additional Closing Date (solely in the case of the
Additional Investors) as though made at that time (except for representations
and warranties that speak as of a specific date), and the applicable Purchaser
shall have performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by the applicable Purchaser at or prior to the
Closing Date (solely in the case of RGC) or the Additional Closing Date (solely
in the case of the Additional Investors).
(d) No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
7. CONDITIONS TO EACH PURCHASER'S OBLIGATION TO PURCHASE.
The obligation of each Purchaser hereunder to purchase the
Preferred Shares to be purchased by it on the Closing Date or Additional Closing
Date (as applicable) is subject to the satisfaction of each of the following
conditions, provided that these conditions are for each Purchaser's sole benefit
and may be waived by a Purchaser at any time in the Purchaser's sole discretion:
(b) The Company shall have executed the signature page to this Agreement
and the Registration Rights Agreement, and delivered the same to such Purchaser.
(c) The Certificate of Designation shall have been accepted for filing
with the Secretary of State of the State of Delaware and a copy thereof
certified by the Secretary of State of Delaware shall have been delivered to
such Purchaser.
(d) The Company shall have delivered duly executed certificates (in such
denominations as such Purchaser shall request) representing the Preferred Shares
being so purchased to such Purchaser in accordance with Section 1(c) above.
(e) The Common Stock shall be authorized for quotation on NASDAQ and
trading in the Common Stock (or NASDAQ generally) shall not have been suspended
by the SEC or NASD.
(f) The representations and warranties of the Company shall be true and
correct as of the date when made and as of the Closing Date (solely in the case
of RGC) and Additional Closing Date (solely in the case of the Additional
Investors) as though made at that time (except for representations and
warranties that speak as of a specific date) and the Company shall have
performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Company at or prior to the Closing Date (solely in the
case of RGC) and Additional Closing Date (solely in the case of the Additional
Investors). Such Purchaser shall have received a certificate, executed by the
chief executive officer of the Company, dated as of the Closing Date (in the
case of the certificate to be delivered to RGC) or the Additional Closing Date
(in the case of the certificate to be delivered to the Additional Investors) to
the foregoing effect and as to such other matters as may be reasonably requested
by such Purchaser.
(g) No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
(h) Such Purchaser shall have received the officer's certificate
described in Section 3(c) above, dated as of the Closing Date (in the case of
the certificate to be delivered to RGC) or the Additional Closing Date (in the
case of the certificate to be delivered to the Additional Investors).
(i) Such Purchaser shall have received an opinion of the Company's
counsel, dated as of the Closing Date (in the case of the opinion to be
delivered to RGC) or the Additional Closing Date (in the case of the opinion to
be delivered to the Additional Investors), in form, scope and substance
reasonably satisfactory to the Purchaser and in substantially the form of
Exhibit C attached hereto.
(j) The Company shall have executed, and shall have delivered evidence
reasonably satisfactory to the Purchasers that the Company's transfer agent has
agreed to act in accordance with, the irrevocable instructions in the form
attached hereto as Exhibit D."
4. Section 3 of the Original Securities Purchase Agreement is hereby amended to
add at the end of the ninth word thereof: "(which representations and warranties
shall be true and correct as of the date hereof and as of the Closing Date and
each Additional Closing Date)".
5. Except as expressly supplemented and/or modified herein, the terms of the
Original Securities Purchase Agreement shall continue in full force and effect
(including, without limitation, the terms of Section 4(e)). This Supplement may
only be modified with the consent of the Company, RGC and each Additional
Investor.
6. In the event that an Additional Closing shall not have occurred on or before
May 7, 1997, unless the Company, RGC and the Current Investors agree otherwise,
this Supplement shall terminate at the close of business on such date and shall
be of no further force or effect.
7. A Subsequent Investor shall become a party to the Securities Purchase
Agreement upon execution of an Execution Page by such Subsequent Investor on or
before June 19, 1997. Upon execution, such Subsequent Investor shall be entitled
to all of the benefits conferred thereby and shall be subject to all of the
obligations thereunder.
IN WITNESS WHEREOF, the undersigned Investor, RGC and the Company have
caused this Supplement to be duly executed as of the date first above written.
This signature page constitutes an Execution Page under the Securities Purchase
Agreement.
INVESTOR:
SOUTHBROOK INTERNATIONAL INVESTMENTS, LTD.
By:
---------------------------------------
Name:
Title:
RESIDENCE: New York
ADDRESS: Southbrook International Investments, Ltd.
c/o Trippoak Advisors, Inc.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
with copies to: Robinson, Silverman, Xxxxxx, Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxx
Facsimile No.: (000) 000-0000
AGGREGATE SUBSCRIPTION AMOUNT
Number of Preferred Shares: 3,000
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Purchase Price: $ 3,000,000
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PALOMAR MEDICAL TECHNOLOGIES, INC.
By:
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Name:
Title:
RGC INTERNATIONAL INVESTORS, LDC
By:
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Name:
Title:
