RESTRICTED STOCK AGREEMENT awarded pursuant to the PHOTOMEDEX, INC. 2005 EQUITY COMPENSATION PLAN
EXHIBIT
10.45
awarded
pursuant to the
PHOTOMEDEX,
INC. 2005 EQUITY COMPENSATION PLAN
THIS
RESTRICTED STOCK AGREEMENT (the “Restricted
Stock Agreement”)
is
made and entered into as of January
15,
2006 by
and between PhotoMedex, Inc., a Delaware corporation (the “Company”)
and
the following individual:
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Name:
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ (the
“Purchaser”)
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Address
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▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Capitalized
terms used but not otherwise defined herein shall have the meanings set forth
in
the PhotoMedex, Inc. 2005 Equity Compensation Plan (the “Plan”).
The
Purchaser agrees to be bound by the terms and conditions of the Plan, which
are
incorporated herein by reference and which control in case of any conflict
with
this Restricted Stock Agreement, except as otherwise specifically provided
in
the Plan.
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SECTION 1
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ACQUISITION
OF SHARES.
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(a) Issuance.
On the
terms and conditions set forth in this restricted stock agreement, the Company
agrees to issue Three
Hundred Thirty-Five Thousand (335,000)
shares
to the purchaser. The issuance shall occur at the offices of the Company on
the
date set forth above or at such other place and time (but not in a calendar
year
other than the current calendar year) as the parties may agree.
(b) Consideration.
The
Purchaser agrees to pay to the Company the sum of $.01 (the “Per Share Purchase
Price”) for each of such Shares, representing the par value thereof. Payment
shall be made on the issuance date by delivery to the Company of the Purchaser’s
check in the amount of the aggregate purchase price.
(c) Defined
Terms.
Certain
capitalized terms are defined in Sections 2 and 3 of this Restricted Stock
Agreement.
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SECTION 2
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RIGHT
OF REPURCHASE.
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(a) Scope
of Repurchase Right.
Until
they vest in accordance with Section (b) below, the Purchased Shares shall
be Restricted Shares and shall be subject to the Right of Repurchase. The
Company (or, if there is a Change in Control Event, the New Employer) may
exercise its Right of Repurchase only during the Repurchase Period following
the
termination of the Purchaser’s Service. The Right of Repurchase may be exercised
automatically under Section 2(d) below. If the Right of Repurchase is exercised
prior to a Change in Control Event, the Company shall pay the Purchaser an
amount equal to the Per Share Purchase Price (i.e.,
$.01
per Share) (as adjusted for stock splits, stock dividends and similar corporate
transactions) for each of the Restricted Shares being repurchased. If the Right
of Repurchase is exercised subsequent to a Change in Control Event, the New
Employer shall pay the New Employer an amount, for all of the CIC Restricted
Shares which are repurchased, equal to the total amount paid by the Purchaser
for the Purchased Shares multiplied by a fraction, the numerator of which is
the
number of CIC Restricted Shares being repurchased and the denominator of which
is the number of CIC Whole Shares (as defined in Section 2(b)(iv)).
(b) Lapse
of Repurchase Right.
(i) For
purposes of this Restricted Stock Agreement, the term “2011 Unvested Shares”
shall mean Purchased Shares which are Restricted Shares as of January 15, 2011.
(ii) Except
as
otherwise provided in Section 2(b)(iv), the Right of Repurchase shall lapse
on
January 15, 2011 with respect to 33-1/3% of the 2011 Unvested Shares if the
Purchaser continues to provide Service from the date hereof through January
15,
2011, the Right of Repurchase shall lapse on January 15, 2012 with respect
to an
additional 33-1/3% of the 2011 Unvested Shares if the Purchaser continues to
provide Service from the date hereof through January 15, 2012, and the Right
of
Repurchase shall lapse on January 15, 2013 with respect to 100% of the 2011
Unvested Shares if the Purchaser continues to provide Service from the date
hereof through January 15, 2013.
(iii) The
Right
of Repurchase shall also lapse in accordance with the following
provisions:
(A) For
purposes of this Section 2(b)(iii), the following terms shall have the following
meanings:
(1) “Trading
Day” shall mean a day on which securities are traded on the New York Stock
Exchange.
(2) “2005
Average Price” shall mean the greater of (i) $2.50 and (ii) the average Fair
Market Value (as defined in the Plan) of the Company’s Common Stock for each of
the Trading Days (each such Trading Day to be a day of determination for
purposes of the definition of Fair Market Value under the Plan) in the 90 day
period ending on the date of the annual meeting of the Company’s stockholders at
which this Plan is approved by the Company’s stockholders, and in fact it is
hereby determined that the 2005 Average Price shall be $2.50.
(3) “2006
Average Price” shall mean the average Fair Market Value of the Company’s Common
Stock for each of the Trading Days (each such Trading Day to be a day of
determination for purposes of the definition of Fair Market Value under the
Plan) in the period from October 1, 2006 through December 31, 2006.
(4) “2007
Average Price” shall mean the average Fair Market Value of the Company’s Common
Stock for each of the Trading Days (each such Trading Day to be a day of
determination for purposes of the definition of Fair Market Value under the
Plan) in the period from October 1, 2007 through December 31, 2007.
(5) “2008
Average Price” shall mean the average Fair Market Value of the Company’s Common
Stock for each of the Trading Days (each such Trading Day to be a day of
determination for purposes of the definition of Fair Market Value under the
Plan) in the period from October 1, 2008 through December 31, 2008.
(6) “2009
Average Price” shall mean the average Fair Market Value of the Company’s Common
Stock for each of the Trading Days (each such Trading Day to be a day of
determination for purposes of the definition of Fair Market Value under the
Plan) in the period from October 1, 2009 through December 31, 2009.
(7) “2010
Average Price” shall mean the average Fair Market Value of the Company’s Common
Stock for each of the Trading Days (each such Trading Day to be a day of
determination for purposes of the definition of Fair Market Value under the
Plan) in the period from October 1, 2010 through December 31, 2010.
(B) The
Right
of Repurchase shall lapse on December 31, 2006 with respect to 20% of the
Purchased Shares if the Purchaser is providing Service on such date and if
the 2006 Average Price equals or exceeds the 2006 Target Price. For purposes
of
this Restricted Stock Agreement, the term “2006 Target Price” shall equal 125%
of the 2005 Average Price, or $3.13.
(C) The
Right
of Repurchase shall lapse on December 31, 2007 with respect to 20% of the
Purchased Shares if the Purchaser is providing Service on such date and if
the
2007 Average Price equals or exceeds the 2007 Target Price. For purposes of
this
Restricted Stock Agreement, the term “2007 Target Price” shall equal 125% of the
2006 Target Price, or $3.91.
(D) The
Right
of Repurchase shall lapse on December 31, 2008 with respect to 20% of the
Purchased Shares if the Purchaser is providing Service on such date and if
the
2008 Average Price equals or exceeds the 2008 Target Price. For purposes of
this
Restricted Stock Agreement, the term “2008 Target Price” shall equal 125% of the
2007 Target Price, or $4.88.
(E) The
Right
of Repurchase shall lapse on December 31, 2009 with respect to 20% of the
Purchased Shares if the Purchaser is providing Service on such date and if
the
2009 Average Price equals or exceeds the 2009 Target Price. For purposes of
this
Restricted Stock Agreement, the term “2009 Target Price” shall equal 125% of the
2008 Target Price, or $6.10.
(F) The
Right
of Repurchase shall lapse on December 31, 2010 with respect to all of the
Purchased Shares for which such Right has not previously lapsed if the Purchaser
is providing Service on such date and if the 2010 Average Price equals or
exceeds the 2010 Target Price. For purposes of this Restricted Stock Agreement,
the term “2010 Target Price” shall equal 125% of the 2009 Target Price, or
$7.63.
(iv) Notwithstanding
any provision herein to the contrary, if a Change in Control Event (as defined
in the Plan) occurs before the Purchaser’s Service terminates and the Purchased
Shares are converted entirely into securities of a successor corporation (the
“New Employer Shares”), the Right of Repurchase shall lapse with respect to the
New Employer Shares as follows:
(I) For
purposes of this Agreement, the following terms shall have the following
meanings with respect to a Change in Control Event:
(A) The
term
“CIC Share Consideration” shall mean, with respect to such Change in Control
Event, the number of New Employer Shares into which one Purchased Share is
converted pursuant to the terms of the definitive agreement or agreements
evidencing such Change in Control Event (collectively, the “CIC
Agreement”).
(B) The
term
“CIC Share Consideration Value” shall mean the fair market value of the CIC
Share Consideration as determined by the Administrator, such CIC Share
Consideration Value to be determined by multiplying the CIC Share Consideration
by the average of the per share closing sales prices (or, if closing sales
prices are not available, closing bid prices, or, if not available, the mean
between the high bid and low asked prices or if not available, as determined
by
the Administrator in good faith) of the New Employer Shares during the last
five
Trading Days immediately preceding the signing of the CIC Agreement.
(C) The
term
“CIC Restricted Shares” shall mean New Employer Shares issued upon conversion of
the Purchaser’s Restricted Shares pursuant to the CIC Agreement.
(D) The
term
“CIC Unrestricted Shares” shall mean New Employer Shares issued upon conversion
of the Purchaser’s Unrestricted Purchased Shares pursuant to the CIC
Agreement.
(E) The
term “CIC
Whole Shares” shall mean the number of New Employer Shares which would be issued
pursuant to the CIC Agreement if all of the Purchased Shares were converted
into
New Employer Shares.
(F) The
term
“Third Anniversary Date” shall mean the date which is three years after the date
on which such Change in Control Event is consummated.
(G) “Unrestricted
Purchased Shares” shall mean Purchased Shares which are not Restricted Shares
immediately prior to the effective time of such Change in Control
Event.
(H) “Unvested
CIC Shares” shall mean those New Employer Shares, if any, which remain subject
to the Right of Repurchase after the operation of Section 2(b)(iv)(II) through
Sections 2(b)(iv)(VIII), inclusive.
(II)
The
Right
of Repurchase shall lapse upon consummation of such Change in Control Event
with
respect to all of the CIC Unrestricted Shares.
(III) If
the
CIC Consideration Value is equal to or greater than the 2010 Target Price,
then
the Right of Repurchase shall lapse upon consummation of such Change in Control
Event with respect to all of the CIC Restricted Shares.
(IV) If
the
CIC Consideration Value is equal to or greater than the 2009 Target Price but
less than the 2010 Target Price, then the Right of Repurchase shall lapse with
respect to a number of CIC Restricted Shares (which shall not be less than
zero)
equal to (x) 80% of the CIC Whole Shares minus (y) the number of CIC
Unrestricted Shares.
(V) If
the
CIC Consideration Value is equal to or greater than the 2008 Target Price but
less than the 2009 Target Price, then the Right of Repurchase shall lapse with
respect to a number of Purchased Shares (which shall not be less than zero)
equal to (x) 60% of the CIC Whole Shares minus (y) the number of CIC
Unrestricted Shares.
(VI)
If
the
CIC Consideration Value is equal to or greater than the 2007 Target Price but
less than the 2008 Target Price, then the Right of Repurchase shall lapse with
respect to a number of Purchased Shares (which shall not be less than zero)
equal to (x) 40% of the CIC Whole Shares minus (y) the number of CIC
Unrestricted Shares.
(VII)
If
the
CIC Consideration Value is equal to or greater than the 2006 Target Price but
less than the 2007 Target Price, then the Right of Repurchase shall lapse with
respect to a number of Purchased Shares (which shall not be less than zero)
equal to (x) 20% of the of the CIC Whole Shares minus (y) the number of CIC
Unrestricted Shares.
(VIII)
If (a) the CIC Consideration Value is less than the 2010 Target Price, (b)
immediately prior to the effective time of such Change in Control Event, one
or
more of the Purchased Shares are Restricted Shares and (c) the entity that
controls the Company upon consummation of such Change in Control Event (the
“New
Employer”) does not offer to employ the Purchaser (i) at a base salary that is
at least equal to the base salary earned by the Purchaser immediately prior
to
such effective time and (ii) in a position that is executive in nature (as
determined by the Administrator prior to such effective time), then the Right
of
Repurchase shall lapse with respect to all of the CIC Restricted Shares as
of
such effective time.
(IX)
If (a) the CIC Consideration Value is less than the 2010 Target Price, (b)
immediately prior to the effective time of such Change in Control Event, one
or
more of the Purchased Shares are Restricted Shares, (c) the New Employer offers
to employ the Purchaser (i) at a base salary that is at least equal to the
base
salary earned by the Purchaser immediately prior to such effective time and
(ii)
in a position that is executive in nature (as determined by the Administrator
prior to such effective
time) and (d) the Purchaser accepts such employment, then the following
provisions shall apply: with respect to the CIC Unvested
Shares:
effective
time) and (d) the Purchaser accepts such employment, then the following
provisions shall apply: with respect to the CIC Unvested Shares:
(A) the
Right of
Repurchase shall lapse with respect to all of the CIC Unvested Shares if,
subsequent to such effective time and prior to the Third Anniversary Date,
(i)
the New Employer terminates the Purchaser’s employment with the New Employer and
its affiliates without Cause or (ii) the Purchaser terminates such employment
because the New Employer has either (x) reduced the Purchaser’s base salary to a
rate that is below the base salary earned by the Purchaser immediately prior
to
such effective time or (y) assigned the Purchaser to a position that is not
executive in nature (as determined in good faith by the board of directors
of
the New Employer); and
(B) the
Right of
Repurchase shall lapse with respect to one thirty-sixth (1/36th)
of the
CIC Unvested Shares on the last day of each of the thirty-six succeeding
calendar months following the calendar month in which such Change in Control
Event occurs if, on the last day of such succeeding calendar month, the
Purchaser continues to provide service to the New Employer or one of its
affiliates (“Post CIC Service”).
(v) Notwithstanding
any provision herein to the contrary, if a Change in Control Event (as defined
in the Plan) occurs before the Purchaser’s Service terminates and the Purchased
Shares are converted, in whole or in part, into consideration other than
securities of the New Employer, then arrangements shall be made, prior to the
consummation of such Change in Control Event, by the Administrator and the
New
Employer to place the Purchaser in substantially the same position that the
Purchaser would have occupied had the consideration been solely securities
of
the New Employer.
(c) Escrow.
Upon
issuance, the certificate(s) for Purchased Shares shall be deposited in escrow
with the Company to be held in accordance with the provisions of this Restricted
Stock Agreement. Any additional or exchanged securities or other property
described in Section 2(f) below shall be delivered to the Company to be held
in
escrow. All ordinary cash dividends on Purchased Shares (or on other securities
held in escrow) shall be paid directly to the Purchaser and shall not be held
in
escrow. Purchased Shares, together with any other assets held in escrow under
this Restricted Stock Agreement, shall be (i) surrendered to the Company
for repurchase upon exercise of the Right of Repurchase or (ii) released to
the Purchaser upon his request to the extent that the Purchased Shares have
ceased to be Restricted Shares (but not more frequently than once every six
months). In any event, all Purchased Shares that have ceased to be Restricted
Shares, together with any other vested assets held in escrow under this
Restricted Stock Agreement, shall be released within 90 days after the
termination of the Purchaser’s Service.
(d) Exercise
of Repurchase Right.
The
Company shall be deemed to have exercised its Right of Repurchase automatically
for all Restricted Shares as of the commencement of the Repurchase Period,
unless the Company during the Repurchase Period notifies the holder of the
Restricted Shares pursuant to Section 9 that it will not exercise its Right
of Repurchase for some or all of the Restricted Shares. During the Repurchase
Period, the Company shall pay to the holder of the Restricted Shares the
purchase price determined under Section 2(a) above for the Restricted Shares
being repurchased (i.e.,
$.01
per Share, as adjusted for stock splits, stock dividends and similar corporate
transactions). Payment shall be made in cash or cash equivalents and/or by
canceling indebtedness to the Company incurred by the Purchaser. The
certificate(s) representing the Restricted Shares being repurchased shall be
delivered to the Company (if not already held by the Company).
(e) Termination
of Rights as Stockholder.
If the
Right of Repurchase is exercised in accordance with this Section 2 and the
Company makes available the consideration for the Restricted Shares being
repurchased, then the person from whom the Restricted Shares are repurchased
shall no longer have any rights as a holder of the Restricted Shares (other
than
the right to receive payment of such consideration). Such Restricted Shares
shall be deemed to have been repurchased pursuant to this Section 2 whether
or not the certificate(s) for such Restricted Shares have been delivered to
the
Company or the consideration for such Restricted Shares has been
accepted.
(f) Additional
or Exchanged Securities and Property.
In the
event of a merger or consolidation of the Company with or into another entity
(other than a Change in Control Event), any other corporate reorganization
(other than a Change in Control Event), a stock split, the declaration of a
stock dividend, the declaration of an extraordinary dividend payable in a form
other than stock, a spin-off, an adjustment in conversion ratio, a
recapitalization or a similar transaction affecting the Company’s outstanding
securities, any securities or other property (including cash or cash
equivalents) that are by reason of such transaction exchanged for, or
distributed with respect to, any Restricted Shares shall continue to be subject
to the Right of Repurchase. Appropriate adjustments to reflect the exchange
or
distribution of such securities or property shall be made to the number and/or
class of the Restricted Shares and to all of the provisions of this Section
2,
including the price per share to be paid upon the exercise of the Right of
Repurchase, provided that the aggregate purchase price payable for the
Restricted Shares shall remain the same. In the event of a merger or
consolidation of the Company with or into another entity or any other corporate
reorganization that does not constitute a Change in Control Event, the Right
of
Repurchase may be exercised by the Company’s successor.
(g) Transfer
of Restricted Shares.
The
Purchaser shall not transfer, assign, encumber or otherwise dispose of any
Restricted Shares without the Company’s written consent (which consent may be
withheld with or without any reason therefor), except as provided in the
following sentence. The Purchaser may transfer Restricted Shares to one or
more
members of the Purchaser’s Immediate Family or to a trust or partnership
established by the Purchaser for the benefit of the Purchaser and/or one or
more
members of the Purchaser’s Immediate Family, provided in either case that the
Transferee agrees in writing on a form prescribed by the Company to be bound
by
all provisions of this Restricted Stock Agreement. If the Purchaser transfers
any Restricted Shares, then this Restricted Stock Agreement shall apply to
the
Transferee to the same extent as to the Purchaser.
(h) Assignment
of Repurchase Right.
The
Board of Directors may freely assign the Company’s Right of Repurchase, in whole
or in part. Any person who accepts an assignment of the Right of Repurchase
from
the Company shall assume all of the Company’s rights and obligations under this
Section 2.
(i) Part-Time
Employment and Leaves of Absence.
If the
Purchaser commences working on a part-time basis, then the Company may adjust
the vesting schedule set forth in Section 2(b) above in accordance with the
Company’s part-time work policy or the terms of an agreement between the
Purchaser and the Company pertaining to his part-time schedule. If the Purchaser
goes on a leave of absence, then the Company may adjust the vesting schedule
set
forth in Section 2(b) above in accordance with the Company’s leave of absence
policy or the terms of such leave. Except as provided in the preceding sentence,
Service shall be deemed to continue while the Purchaser is on a bona
fide
leave of
absence, if (i) such leave was approved by the Company in writing and
(ii) continued crediting of Service is expressly required by the terms of
such leave or by applicable law (as determined by the Company). Service shall
be
deemed to terminate when such leave ends, unless the Purchaser immediately
returns to active work.
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SECTION 3
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OTHER
DEFINITIONS.
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“Immediate
Family”
shall
mean any child, stepchild, grandchild, parent, stepparent, grandparent, spouse,
sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law or sister-in-law and shall include adoptive
relationships.
“Purchased
Shares”
shall
mean the Shares purchased by the Purchaser pursuant to this Restricted Stock
Agreement.
“Repurchase
Period”
shall
mean a period of 180 consecutive days commencing on the date when the
Purchaser’s Service terminates for any reason, including (without limitation)
death or disability.
“Restricted
Share” shall
mean a Purchased Share that is subject to the Right of
Repurchase.
“Right
of Repurchase”
shall
mean the Company’s right of repurchase described in
Section 2.
“Securities
Act”
shall
mean the Securities Act of 1933, as amended.
“Service”
shall
mean service to the Company or its subsidiaries as an Employee or, following
a
Change in Control Event, service to the New Employer (as defined in Section
2(b)) or its subsidiaries as an employee.
“Share”
shall
mean one share of Stock
“Stock”
shall
mean the Common Stock of the Company, par value $0.01 per
Share.
“Transferee”
shall
mean any person to whom the Purchaser directly or indirectly transfers any
Purchased Shares.
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SECTION 4
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OTHER
RESTRICTIONS ON
TRANSFER.
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(a) Purchaser
Representations.
In
connection with the issuance and acquisition of Shares under this Restricted
Stock Agreement, the Purchaser hereby represents and warrants to the Company
as
follows:
(i) The
Purchaser has received a copy of an offering memorandum relating to the sale
of
the Purchased Shares to the Purchaser hereunder.
(ii) The
Purchaser acknowledges his understanding that if he is an “affiliate” of the
Company, the Purchaser’s right to resell the Purchased Shares after the
Company’s Right of Repurchase lapses is restricted under the Securities
Act.
(iii)
The
Purchaser will not sell, transfer or otherwise dispose of the Purchased Shares
in violation of the Securities Act or the rules promulgated thereunder,
including Rule 144 under the Securities Act. The Purchaser agrees that he
will not dispose of the Purchased Shares unless and until he has complied with
all requirements of this Restricted Stock Agreement applicable to the
disposition of Purchased Shares and he has provided the Company with written
assurances, in substance and form reasonably satisfactory to the Company, that
(A) the proposed disposition does not require registration of the Purchased
Shares under the Securities Act or all appropriate action necessary for
compliance with the registration requirements of the Securities Act or with
any
exemption from registration available under the Securities Act (including
Rule 144) has been taken and (B) the proposed disposition will not
result in the contravention of any transfer restrictions applicable to the
Purchased Shares under state securities law.
(b) Securities
Law Restrictions.
Regardless of whether the offering and sale of Shares under this Restricted
Stock Agreement have been registered under the Securities Act or have been
registered or qualified under the securities laws of any state, the Company
at
its discretion may impose restrictions upon the sale, pledge or other transfer
of the Purchased Shares (including the placement of appropriate legends on
stock
certificates or the imposition of stop-transfer instructions) if, in the
judgment of the Company, such restrictions are necessary or desirable in order
to achieve compliance with the Securities Act, the securities laws of any state
or any other law.
(c) Rights
of the Company.
The
Company shall not be required to (i) transfer on its books any Purchased
Shares that have been sold or transferred in contravention of this Restricted
Stock Agreement or (ii) treat as the owner of Purchased Shares, or
otherwise to accord voting, dividend or liquidation rights to, any transferee
to
whom Purchased Shares have been transferred in contravention of this Restricted
Stock Agreement.
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SECTION 5
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SUCCESSORS
AND
ASSIGNS.
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Except
as
otherwise expressly provided to the contrary, the provisions of this Restricted
Stock Agreement shall inure to the benefit of, and be binding upon, the Company
and its successors and assigns and shall be binding upon the Purchaser and
the
Purchaser’s legal representatives, heirs, legatees, distributees, assigns and
transferees by operation of law, whether or not any such person has become
a
party to this Restricted Stock Agreement or has agreed in writing to join herein
and to be bound by the terms, conditions and restrictions hereof.
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SECTION 6
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NO
RETENTION RIGHTS.
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Nothing
in this Restricted Stock Agreement shall confer upon the Purchaser any right
to
continue in Service for any period of specific duration or interfere with or
otherwise restrict in any way the rights of the Company (or any Parent or
Subsidiary employing or retaining the Purchaser) or of the Purchaser, which
rights are hereby expressly reserved by each, to terminate his Service at any
time and for any reason, with or without cause.
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SECTION 7
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TAX
ELECTION.
|
The
acquisition of the Purchased Shares may result in adverse tax consequences
that
may be avoided or mitigated by filing an election under Code Section 83(b).
Such election may be filed only within 30 days after the date of purchase.
The
Purchaser should consult with his tax advisor to determine the tax consequences
of acquiring the Purchased Shares and the advantages and disadvantages of filing
the Code Section 83(b) election. The Purchaser acknowledges that it is his
sole responsibility, and not the Company’s responsibility, to file a timely
election under Code Section 83(b), even if the Purchaser requests the
Company or its representatives to make this filing on his behalf.
CIRCULAR
230 DISCLAIMER: Nothing contained herein concerning certain federal income
tax
considerations is intended or written to be used, and cannot be used, for the
purpose of (i) avoiding tax-related penalties under the Internal Revenue Code
or
(ii) promoting, marketing, or recommending to another party any transactions
or
tax-related matters addressed herein.
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SECTION 8
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LEGENDS.
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All
certificates evidencing Purchased Shares shall bear the following
legend:
“THE
SHARES REPRESENTED HEREBY MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, ENCUMBERED
OR
IN ANY MANNER DISPOSED OF, EXCEPT IN COMPLIANCE WITH THE TERMS OF A RESTRICTED
STOCK AGREEMENT DATED JANUARY 15, 2006 BETWEEN THE ISSUER OF SUCH SHARES AND
THE
REGISTERED HOLDER OF SUCH SHARES (OR THE PREDECESSOR IN INTEREST TO SUCH HOLDER
OF SHARES). SUCH AGREEMENT GRANTS TO SUCH ISSUER CERTAIN REPURCHASE RIGHTS
UPON
TERMINATION OF SERVICE WITH THE COMPANY. THE SECRETARY OF SUCH ISSUER WILL
UPON
WRITTEN REQUEST FURNISH A COPY OF SUCH AGREEMENT TO THE HOLDER HEREOF WITHOUT
CHARGE.”
If
required by the authorities of any state in connection with the issuance of
the
Purchased Shares, the legend or legends required by such state authorities
shall
also be endorsed on all such certificates.
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SECTION 9
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NOTICE.
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Any
notice required by the terms of this Restricted Stock Agreement shall be given
in writing and shall be deemed effective upon (i) personal delivery,
(ii) deposit with the United States Postal Service, by registered or
certified mail, with postage and fees prepaid or (iii) deposit with a
recognized overnight courier service, with shipping charges prepaid. Notice
shall be addressed to the Company at its principal executive office and to
the
Purchaser at the address that he most recently provided to the Company in
accordance with this Section 9.
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SECTION 10
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ENTIRE
AGREEMENT.
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This
Restricted Stock Agreement, together with the Plan, constitutes the entire
contract between the parties hereto with regard to the subject matter hereof
and
supersedes any other agreements, representations or understandings (whether
oral
or written and whether express or implied) which relate to the subject matter
hereof.
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SECTION 11
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CONFLICITS
OF LAW.
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This
Restricted Stock Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without regard to conflict of laws
principles.
IN
WITNESS WHEREOF, each of the parties has executed this Restricted Stock
Agreement, in the case of the Company by its duly authorized officer, as of
the
day and year first above written.
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PURCHASER:
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PHOTOMEDEX,
INC.
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address:
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇▇
Title:
President & CEO
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