EXHIBIT 2
STOCKHOLDER AGREEMENT
THIS STOCKHOLDER AGREEMENT (the "Agreement") is entered into as of
September 25, 2002, by and among PhotoMedex, Inc., a Delaware corporation
("Buyer"), J Merger Corp., Inc., a Delaware corporation and wholly owned
subsidiary of Buyer ("Merger Sub"), and the undersigned stockholder
("Stockholder") of Surgical Laser Technologies, Inc., a Delaware corporation
("Company").
RECITALS:
WHEREAS, Buyer has agreed to acquire the outstanding securities of Company
pursuant to a statutory merger of Merger Sub with and into Company (the
"Merger") effected in part through the conversion of each outstanding share of
common stock of Company (the "Company Common Stock"), into shares of capital
stock of Buyer (the "Buyer Shares") at the rate set forth in the Agreement and
Plan of Merger, dated as of September 25, 2002, by and among Buyer, Merger Sub
and Company (such agreement as it may be amended or restated is hereinafter
referred to as the "Merger Agreement") and the transactions contemplated thereby
(the "Transaction");
WHEREAS, Stockholder is the registered and beneficial owner of such number
of shares of the outstanding Company Common Stock as is indicated on the
signature page of this Agreement (the "Shares"); and
WHEREAS, in order to induce Buyer to enter into the Transaction, certain
stockholders of Company have agreed to vote the Shares and any other such shares
of Company Common Stock so as to facilitate consummation of the Transaction.
NOW, THEREFORE, in consideration of the promises and mutual agreements,
provisions and covenants set forth in the Merger Agreement, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. Share Ownership and Agreement to Retain Shares.
1.1 Encumbrance. Stockholder represents, warrants and covenants to
Buyer that: (a) Stockholder is the beneficial owner (as such term is defined
under Section 13(d) of the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder) of that number of Shares of
Company Common Stock set forth on the signature page hereto; (b) the Shares
constitute the Stockholder's entire interest in the outstanding Company Common
Stock; (c) no other person or entity not a signatory to this Agreement has a
beneficial interest in or a right to acquire the Shares or any portion of the
Shares; (d) the Stockholder has not appointed or granted any proxy which is
still effective with respect to any Shares other than as provided in this
Agreement, and (e) the Shares are and will be at all times up until the
Expiration Date free and clear of any Encumbrances. As used herein, the term
"Encumbrance" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, security interest, lien (statutory
or other) or preference, equity, option, charge, limitation on voting rights,
right to receive dividends, dissenters' or appraisal rights, priority or other
security or similar agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing). As used herein, the term "Expiration Date" shall mean the earlier to
occur of: (i) the Effective Time (as defined in the Merger Agreement) of the
Transaction, and (ii) the termination of the Merger Agreement.
1.2 New Shares. Stockholder agrees that any shares of Company Common
Stock that Stockholder purchases or with respect to which Stockholder otherwise
acquires beneficial ownership after the date of this Agreement and prior to the
Expiration Date ("New Shares") shall be subject to the terms and conditions of
this Agreement to the same extent as if they constituted Shares.
2. Agreement to Vote Shares. Prior to the Expiration Date, at every
meeting of the stockholders of Company called with respect to the Transaction
and any matter that could reasonably be expected to facilitate the Transaction,
and at every adjournment thereof, and on every action or approval by written
resolution of the stockholders of Company with respect to any of the following,
Stockholder shall vote the Shares and any New
Shares (collectively, the "Voting Shares") in favor of approval of the
Transaction and any matter that could reasonably be expected to facilitate the
Transaction.
3. Irrevocable Proxy. SUBJECT TO SECTION 3 HEREOF, THE STOCKHOLDER HEREBY
GRANTS TO, AND APPOINTS EACH OF XXXXXXX X. X'XXXXXXX AND XXXXXX X. XXXXXXX
ACTING INDIVIDUALLY OR COLLECTIVELY IN THEIR RESPECTIVE CAPACITIES AS OFFICERS
OF BUYER, AND ANY INDIVIDUAL WHO SHALL HEREAFTER SUCCEED ANY SUCH OFFICER OF
BUYER, AND ANY OTHER PERSON DESIGNATED IN WRITING BY BUYER, EACH OF THEM
INDIVIDUALLY, THE STOCKHOLDER'S PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF
SUBSTITUTION) TO VOTE OR ACT BY WRITTEN CONSENT, TO THE FULLEST EXTENT PERMITTED
BY AND SUBJECT TO APPLICABLE LAW, WITH RESPECT TO THE VOTING SHARES IN
ACCORDANCE WITH SECTION 2 HEREOF IN RESPECT OF ANY MATTER SPECIFIED IN SUCH
SECTION 2. THIS PROXY IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE. THE
STOCKHOLDER WILL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS
MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY
PROXY PREVIOUSLY GRANTED BY THE STOCKHOLDER WITH RESPECT TO THE VOTING SHARES.
4. Representations, Warranties and Covenants of Stockholder. Stockholder
hereby represents, warrants and covenants to Buyer as follows:
4.1 No Solicitation. Until the Expiration Date, the Stockholder will
not (i) initiate or solicit, directly or indirectly, any proposal, plan of offer
to acquire all or any substantial part of the business or properties or Company
Common Stock, whether by merger, purchase of assets, tender offer or otherwise,
or to liquidate Company or otherwise distribute to the holders of Company Common
Stock all or any substantial part of the business, properties or Company Capital
Stock (each, an "Acquisition Proposal"); (ii) initiate, directly or indirectly,
any contact with any person in an effort to or with a view towards soliciting
any Acquisition Proposal; (iii) furnish information concerning Company's
business, properties or assets to any corporation, partnership, person or other
entity or group (other than Buyer or Merger Sub, or any associate, agent or
representative of Buyer or Merger Sub), under any circumstances that would
reasonably be expected to relate to an actual or potential Acquisition Proposal;
or (iv) negotiate or enter into discussions or an agreement, directly or
indirectly, with any entity or group with respect of any potential Acquisition
Proposal provided that, in the case of clauses (iii) and (iv), the foregoing
shall not prevent Stockholder, in Stockholder's capacity as a director or
officer (as the case may be) of Company, from taking any actions permitted under
Section 5.2 of the Merger Agreement. In the event the Stockholder shall receive
or become aware of any Acquisition Proposal subsequent to the date hereof, such
Stockholder shall promptly inform Buyer as to any such matter and the details
thereof to the extent possible without breaching any other agreement to which
such Stockholder is a party or violating his fiduciary duties.
4.2 Binding Obligation. Stockholder is competent to execute and
deliver this Agreement, to perform his obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Stockholder and, assuming the due authorization,
execution and delivery by Buyer, constitutes a legal, valid and binding
obligation of Stockholder, enforceable against Stockholder in accordance with
its terms except that: (i) the enforceability thereof may be subject to
applicable bankruptcy, insolvency or other similar laws, now or hereinafter in
effect affecting creditors' rights generally and (ii) the availability of the
remedy of specific performance or injunctive or other forms of equitable relief
may be subject to equitable defenses and would be subject to the discretion of
the court before which any proceeding therefore may be brought.
4.3 No Conflict. The execution and delivery of this Agreement by
Stockholder does not, and the performance of this Agreement by Stockholder shall
not result in any breach of 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 of, or result
in the creation of a lien or encumbrance, on any of the Shares or New Shares
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which
Stockholder is a party or by which Stockholder or the Shares or New Shares are
or will be bound or affected.
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4.4 No Encumbrances. The Stockholder hereby agrees, until the
Expiration Date, and except as expressly contemplated hereby, not to (i) sell,
transfer, pledge, Encumber, grant, assign or otherwise dispose of, enforce any
redemption agreement with the Company or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, pledge, Encumbrance, grant, assignment or other
disposition of, record or beneficial ownership of any of the Voting Shares
(whether acquired heretofore or hereafter) or any interest in any of the
foregoing, except to Buyer or Merger Sub, (ii) grant any proxies or powers of
attorney, deposit any Voting Shares into a voting trust or enter into a voting
agreement with respect to any Voting Shares, or any interest in any of the
Voting Shares, except pursuant to Section 3 herein, or (iii) take any action
that would make any representation or warranty of Stockholder contained herein
untrue or incorrect or have the effect of preventing or disabling the
Stockholder from performing its obligations under this Agreement.
5. Additional Documents. Stockholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Buyer, to carry out the purpose and intent of this
Agreement and reasonably acceptable to Stockholder.
6. Consent and Waiver. Stockholder hereby gives any consents or waivers
that are reasonably required for the consummation of the Transaction under the
terms of any agreement to which Stockholder is a party or pursuant to any rights
Stockholder may have in his capacity as a stockholder of the Company.
7. Termination. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
8. Confidentiality. Stockholder agrees: (a) to hold any information
regarding this Agreement and the Transaction in strict confidence, and (b) not
to divulge any such information to any third person, until such time as the
Transaction has been publicly disclosed by Buyer, except as may otherwise be
required by law.
9. Miscellaneous.
9.1 Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
9.2 Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties hereto without the prior written consent of the other. This
Agreement is binding upon Stockholder in Stockholder's capacity as a stockholder
of Company (and not in Stockholder's capacity as a director or officer, as the
case may be, of Company) and only with respect to the specific matters set forth
hereon.
9.3 Amendment and Modification. This Agreement may not be modified,
amended, altered or supplemented except by the execution and delivery of a
written agreement executed by the parties hereto.
9.4 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Buyer will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Stockholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Buyer or Merger Sub upon any such
violation, Buyer and Merger Sub shall have the right to seek to enforce such
covenants end agreements by specific performance, injunctive relief or by any
other means available to Buyer or Merger Sub, at law or in equity, and the
Stockholder hereby waives the absence of irreparable harm as a defense in
connection with such enforcement and waives any requirement for the security or
posting of any bond in connection with such enforcement.
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9.5 Notices. All notices that are required or may be given pursuant
to this Agreement must be in writing and delivered personally, by a recognized
courier service, by a recognized overnight delivery service, by telecopy or by
registered or certified mail, postage prepaid, to the parties at the following
addresses (or to the attention of such other person or such other address as any
party may provide to the other parties by notice in accordance with this Section
9.5):
If to Buyer, to: PhotoMedex, Inc.
Five Xxxxxx Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000-0000
Attention: Chief Executive Officer
Telephone no. (000) 000-0000
Facsimile no. (000) 000-0000
With copies to: Xxxx, Forward, Xxxxxxxx & Scripps, LLP
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Telephone no. (000) 000-0000
Facsimile no. (000) 000-0000
If to Stockholder, to its address set
forth on the signature page:
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered, mailed or telegraphed.
Any such notice or other communication will be deemed to have been given and
received (whether actually received or not) on the day it is personally
delivered or delivered by courier or overnight delivery service or sent by
telecopy or, if mailed, when actually received.
9.6 Attorneys' Fees. If attorneys' fees or other costs are incurred
to secure performance of any obligations hereunder, or to establish damages for
the breach thereof or to obtain any other appropriate relief, whether by way of
prosecution or defense, the prevailing party will be entitled to recover
reasonable attorneys' fees and costs incurred in connection therewith, including
on appeal therefrom.
9.7 Choice of Law and Forum. This Agreement shall be governed by and
construed and interpreted in accordance with the substantive laws of the State
of Delaware, without giving effect to any conflicts of law rule or principle
that might require the application of the laws of another jurisdiction. Each
party hereto hereby irrevocably submits to the exclusive jurisdiction of the
Chancery or other courts of the State of Delaware in any such action, suit or
proceeding, and agrees that any such action, suit or proceeding shall be brought
only in such court (and waives any objection based on forum non conveniens or
any other objection to venue therein); provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this Section 9.2 and shall
not be deemed to be a general submission to the jurisdiction of said courts or
in the State of Delaware other than for such purpose.
9.8 Entire Agreement. This Agreement and the Proxy contain the entire
understanding of the parties hereto in respect of the subject matter hereof, and
supersede all prior negotiations and understandings among the parties hereto
with respect to such subject matter.
9.9 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
9.10 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and entered into as of the date first above written.
("BUYER")
PhotoMedex, Inc.,
a Delaware corporation
By: _____________________________
Xxxxxxx X. X'Xxxxxxx
Chief Executive Officer
("MERGER SUB")
J MERGER CORP., INC.
a Delaware corporation
By: __________________________
Xxxxxxx X. X'Xxxxxxx
Chief Executive Officer
("STOCKHOLDER")
____________________________________
Print Name of Registered Stockholder
____________________________________
Signature of Registered Stockholder
Address:
Total number of Shares of Company Common Stock beneficially owned by
Stockholder on the date hereof:
______ Shares of Company Common Stock.
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