RESTRICTED STOCK AGREEMENT granted pursuant to the PHOTOMEDEX, INC. 2005 EQUITY COMPENSATION PLAN

 

(b)    Lapse of Repurchase Right.

 

(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 2012 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 2011 Target Price but less than the 2012 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 2010 Target Price but less than the 2011 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 2009 Target Price but less than the 2010 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 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) 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 2012 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.

 

(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 or her 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.

 

SECTION 3  OTHER DEFINITIONS. 

“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.

 

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“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. 

SECTION 4  OTHER RESTRICTIONS ON TRANSFER.

 

(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 or her understanding that if he or she 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 or she will not dispose of the Purchased Shares unless and until he or she has complied with all requirements of this Restricted Stock Agreement applicable to the disposition of Purchased Shares and he or she 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.

 

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(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.

 

SECTION 5  SUCCESSORS AND ASSIGNS. 

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.

SECTION 6  NO RETENTION RIGHTS. 

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 or her Service at any time and for any reason, with or without cause. 

SECTION 7  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 form for making the Code Section 83(b) election is attached to this Restricted Stock Agreement as Exhibit I. The Purchaser should consult with his or her 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 or her 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 or her 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. 

 

SECTION 8  LEGENDS. 

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 WRITTEN AGREEMENT 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.”

 

 

 

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SECTION 9  NOTICE. 

 

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 or she most recently provided to the Company in accordance with this Section 9.

 

SECTION 10  ENTIRE AGREEMENT.

 

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.

 

SECTION 11  CONFLICITS OF LAW.