EX-10 3 exh_10-45.txt AGREEMENT WITH TRUE NORTH Exhibit 10.45 TrueNorthCapital John H. Klein Chairman October 28, 2003 Jeff O'Donnell Chief Executive Officer PhotoMedex, Inc. 147 Keystone Drive Montgomeryville, PA 18936 Jeff, Kindly let this letter serve to amend and restate our prior engagement letter dated August 20, 2003 and effective October 1, 2003. The opportunity exists to build on PhotoMedex's recent progress, increase the probability of achieving this year's plan and most importantly to accelerate growth in shareholder value. In order to accelerate growth in shareholder value, we propose the following approach with a team that focuses on the opportunity for PhotoMedex. APPROACH TNC proposes to assist PhotoMedex by: 1. Assisting in the development and evaluation of the strategic and financial merits of the acquisition/licensing paths discussed with you 2. Originating potential companies which, to date, include the companies listed in the document entitled "Target Company Log and Task List" dated November 13, 2003 3. Assisting PhotoMedex and the company's appointed legal advisors in the negotiating and due diligence for each potential transaction 4. Assisting with originating merchant banking services to help finance M&A and licensing transactions THE TEAM The core team that will be responsible for this project will consist of John Klein, Aram Moezinia, Lewis Tepper, Debbie Smook and Arash Gohari. Biographical information on the core team members is available on request.
Managing Directors and Professional Staff --------------------------------- -------------------------------- ----------------------------------- Name Title Relevant Expertise --------------------------------- -------------------------------- ----------------------------------- John H. Klein Chairman Financing and M&A specialist Aram Moezinia Managing Director Financing and M&A specialist North America Medical supply, equipment and Debbie Smook Vice President device specialist; advisor to life science companies including Edwards Life Sciences, Bard, Pfizer, Becton Dickinson, Boston Scientific, Smith and Nephew, and numerous venture stage companies Lewis Tepper Director Previously with Credit Suisse First Boston in the Healthcare Investment Banking Group, covering specialty pharmaceuticals, drug delivery and devices. Advised, structured and negotiated M&A transactions (including business strategy), public and private financings. Arash Gohari Director Seven years of valuation, portfolio management, and financial analysis experience with Lehman Brothers under Chief Investment Strategist, Jeff Applegate
PRINCIPAL TERMS In the event PhotoMedex completes an acquisition or merger (completion shall refer to the date at which the final legal transfer of ownership, as set forth in the executed definitive asset purchase, stock purchase, merger, joint venture, partnership or similar agreement associated with the transaction occurs) with a company originated by TNC, PhotoMedex will pay TNC a success fee equal to the greater of (i) $250,000 and (ii) the sum of: o 5% of the aggregate purchase if the aggregate consideration is equal to or greater than $5MM and less than $10MM; plus o 3% of the aggregate consideration from $10MM to $50MM; plus o 2.5% of the aggregate consideration from $50MM to $100MM; plus o 2% of the aggregate consideration from $100MM to $150MM; plus o 1.5% of the aggregate consideration in excess of $150MM EXPENSES Effective November 1, 2003, TNC will not require monthly reimbursement from PhotoMedex of the expenses which TNC will incur in deploying the team, resources and infrastructure required to support the successful planning and execution of this effort. Such expenses will be borne by TNC. PhotoMedex has made a one-time payment of $20,000 for October 2003 to reimburse TNC for such expenses. This payment will not be refundable and will not be offset against any success fee, which TNC may earn. OUT-OF-POCKET EXPENSES We will submit out-of-ordinary expenses (together with receipts) for reimbursement by PhotoMedex (such as air travel, train, taxi, hotel, and third party research costs, etc.) at the end of each calendar month. These expenses will not be reimbursed without the express written consent of PhotoMedex. Expenses will be invoiced as incurred and will be due within five business days of submission. All expenses must be pre-approved by either Jeffrey F. O'Donnell or Dennis M. McGrath. TERMINATION This agreement may be cancelled with thirty days written notice. * * * If this letter accurately amends and restates our engagement, would you please sign both copies, return one copy to me and retain one copy for your files. Sincerely, For and on behalf of True North Capital Ltd. John H. Klein Chairman True North Capital Ltd. Accepted for and on behalf of PhotoMedex, Inc 147 Keystone Drive Montgomeryville, PA 18936 Name:______________________________________________________ Title:________________________________________________________ Signature:____________________________________________________ Date:________________________________________________________