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:________________________________________________________