Form 8-K STRATA Skin Sciences, For: Aug 16

ASSET PURCHASE AGREEMENT

 

BY AND BETWEEN

 

STRATA SKIN SCIENCES, INC.

 

AND

 

RA MEDICAL SYSTEMS, INC.

 

 

DATED AS OF AUGUST 16, 2021

 

TABLE OF CONTENTS

 

 

SECTION 2.  REPRESENTATIONS AND WARRANTIES OF THE COMPANY		7
2.1	Organization and Qualification	7
2.2	Title to Assets	7
2.3	Authority; Binding Nature of Agreement	7
2.4	Non‑Contravention; Consents	7
2.5	Compliance with Laws	8
2.6	Litigation	8
2.7	Business Inventory	8
2.8	Absence of Certain Changes, Events and Conditions	9
2.9	Condition and Sufficiency of Assets	10
2.10	Intellectual Property	10
2.11	Contracts	12
2.12	Environmental Matters	14
2.13	Undisclosed Liabilities	14
2.14	Stockholder Approval	15
2.15	Third Party Approval	15
2.16	Financial Advisor	15
2.17	Taxes	15
2.18	Full Disclosure	16

 

SECTION 3.  REPRESENTATIONS AND WARRANTIES OF PURCHASER		16
3.1	Organization and Qualification	16
3.2	Authority; Binding Nature of Agreement	16

 

3.3	Non‑Contravention; Consents	16
3.4	Litigation	17
3.5	Financing	17

SECTION 4.  COVENANTS OF THE PARTIES		17
4.1	Public Announcements	17
4.2	Tax Matters17
4.3	Removal of Transferred Assets	18
4.4	Post-Closing Services	18
4.5	Restrictive Covenant	18
4.6	INTENTIONALLY OMITTED	20
4.7	Bulk Sales Laws	20
4.8	Receivables	20
4.9	Recalls after Closing	20
4.10	Further Assurance	21

SECTION 5.  INDEMNIFICATION		21
5.1	Survival	21
5.2	Indemnification By Seller	21
5.3	Indemnification By Purchaser	22
5.4	Certain Limitations	22
5.5	Indemnification Procedures	23
5.6	Payments	25
5.7	Tax Treatment of Indemnification Payments	25
5.8	Effect of Investigation	25
5.9	Exclusive Remedies	25

SECTION 6.  MISCELLANEOUS PROVISIONS		26
6.1	Amendment	26
6.2	Expenses	26
6.3	Waiver	26
6.4	Entire Agreement; Counterparts	26
6.5	Applicable Law; Jurisdiction; Waiver of Jury Trial	26
6.6	Assignability	27
6.7	Third Party Beneficiaries	27
6.8	Notices	27

6.9	Severability	28
6.10	Specific Performance	29
6.11	Construction	29
6.12	Further Actions	29

ASSET PURCHASE AGREEMENT

 

THIS ASSET PURCHASE AGREEMENT (as may be amended from time to time in accordance with its terms, this “Agreement”) is made and entered into as of August 16, 2021 (the “Effective Date”), by and among STRATA SKIN SCIENCES, INC. (“Purchaser”), a Delaware corporation, and RA MEDICAL SYSTEMS, INC., a Delaware corporation (the “Company” or the “Seller”).  Certain capitalized terms used in this Agreement are defined in Exhibit A.

 

RECITALS

 

 

 

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

AGREEMENT

 

SECTION 1.  PURCHASE AND SALE

 

 

 

 

 

 

 

 

 

 

 

 

 

 (g) any Liabilities of Seller arising under or in connection with any Employee Plan providing benefits to any present or former employee of Seller;

 

 

 

 

 

 

 

 

 

 

 

 

 

Inventory acquired as of the Closing Date, less (iii) $50,000 (which shall be applied towards any indemnification obligations of Seller that may arise pursuant to Section 5.2(c)) (such aggregate amount, the “Purchase Price”), plus the assumption of the Assumed Liabilities.  The Purchase Price shall be paid as provided in Sections 1.8(c), subject to Section 1.5(b).  For purposes of clarity, the parties agree that as of Closing, Seller shall have no further obligations or responsibilities as to the Obligations, which shall become Purchaser’s sole responsibility, to the extent not otherwise an Excluded Liability (including, but not limited to, Section 1.4(f)).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SECTION 2.  REPRESENTATIONS AND WARRANTIES OF THE COMPANY

 

The Company represents and warrants to Purchaser as of the Closing as follows:

 

 

 

Agreement and each of the Ancillary Documents to which is a party.  The execution, delivery and performance of this Agreement and each Ancillary Document to which the Company is a party by the Company and the consummation of the transactions hereunder and thereunder have been duly authorized and approved by all necessary corporate and stockholder action.  This Agreement and each Ancillary Document to which the Company is a party constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to (a) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (b) rules of law governing specific performance, injunctive relief and other equitable remedies.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Assets and to preserve the confidentiality of all Trade Secrets included in the Intellectual Property Assets, including by requiring all Persons having access thereto to execute binding, written non‑disclosure agreements.  All required filings and fees related to the Intellectual Property Registrations have been timely submitted with and paid to the relevant Governmental Bodies and authorized registrars.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

by each Customer, (iii) location of the Product, (iv) the expiration date of such Customer’s warranty, if applicable, and (v) if purchased by the Customer, the expiration date of such Customer’s service contract.

 

 

 

 

 

 

 

 

 

 

 

2.13 Undisclosed Liabilities.  The Company has no Liabilities with respect to the Business, except (a) those set forth on the Company’s financial statements for fiscal year ending December 31, 2020, and (b) those which have been incurred in the ordinary course of business consistent with past practice since January 1, 2021 and which are not, individually or in the aggregate, material in amount and which have not been set forth in an exhibit to this Agreement.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SECTION 3.  REPRESENTATIONS AND WARRANTIES OF PURCHASER

 

Purchaser represents and warrants to the Company as follows:

 

 

 

 

 

 

SECTION 4.  COVENANTS OF THE PARTIES

 

 

 

 

 

 

 

 

 

 

 

 

 

 

employment, consultingor independent contractor services provided to Purchaser or any of its Affiliates): (i) engage directly or indirectly in Competition in any part of the Restricted Territory; or (ii) directly or indirectly be or become an officer, director, stockholder, owner, co-owner, Affiliate, partner, promoter, employee, agent, Representative, designer, consultant, advisor or manager of, for or to, or acquire or hold any direct or indirect interest in, any Person that engages directly or indirectly in Competition in any part of the Restricted Territory.

 

 

 

 

 

 

 

and (vi) Seller, either alone or through its Affiliates, has received sufficiently high consideration and other benefits as a result of this Agreement and the transactions contemplated hereby, and such consideration and other benefits justify the covenants contained in this Section 4.5.

 

 

 

 

 

 

 injunctive or other relief in order to enforce or prevent any violations of the provisions hereof, in each case without the requirement of posting a bond or proving actual damages.

 

 

 

 

 

 

SECTION 5.  INDEMNIFICATION

 

 

 

 

Section 2.2, Section 2.3, Section 2.9, Section 2.11(d), Section 2.11(e), Section 2.11(f), Section 2.16, Section 3.1, and Section 3.2 shall survive indefinitely, and (ii) Section 2.17 shall survive for the full period of all applicable statutes of limitations (giving effect to any waiver, mitigation or extension thereof) plus 60 calendar days.  All covenants and agreements of the parties contained herein shall survive the Closing indefinitely or for the period explicitly specified therein.  Notwithstanding the foregoing, any claims asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the non‑breaching party to the breaching party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representation or warranty and such claims shall survive until finally resolved.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(a “Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 calendar days after receipt of such notice of such Third Party Claim.  The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure.  Such notice by the Indemnified Party shall describe the Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party.  The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense; provided, that if the Indemnifying Party is Seller, such Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim that (x) is asserted directly by or on behalf of a Person that is a supplier or customer of the Business, or (y) seeks an injunction or other equitable relief against the Indemnified Party.  In the event that the Indemnifying Party assumes the defense of any Third Party Claim, subject to Section 5.5(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the Indemnified Party.  The Indemnified Party shall have the right to participate in the defense of any Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof.  The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required.  If the Indemnifying Party elects not to compromise or defend such Third Party Claim, fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such Third Party Claim, the Indemnified Party may, subject to Section 5.5(b), pay, compromise or defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim.  Seller and Purchaser shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available (subject to the provisions of Section 4.5) records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non‑defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.

 

 

 

 

and obligations in connection with such Third Party Claim and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party.  If the Indemnified Party fails to consent to such firm offer within ten days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third Party Claim and in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim shall not exceed the amount of such settlement offer.  If the Indemnified Party fails to consent to such firm offer and also fails to assume defense of such Third Party Claim, the Indemnifying Party may settle the Third Party Claim upon the terms set forth in such firm offer to settle such Third Party Claim.  If the Indemnified Party has assumed the defense pursuant to Section 5.5(a), it shall not agree to any settlement without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed).

 

 

 

 

 

 

 

 

 

 

SECTION 6.  MISCELLANEOUS PROVISIONS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AGREEMENT HEREBY AGREES AND CONSENTS THAT, ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

 

 

 

 

if to Purchaser:

 

Strata Skin Sciences, Inc.
5 Walnut Grove Drive, Suite 140
Horsham, PA  19044
Attention:  Bob Moccia, Chief Executive Officer
Email:  [email protected]

 

 

in the case of notices to Purchaser, with a copy to (which shall not constitute notice):

 

Stevens & Lee, P.C.
620 Freedom Business Center Drive, Suite 200
King of Prussia, PA  19406
Attention:  Sunjeet Gill
Email:  [email protected]

 

if to the Company:

 

Ra Medical Systems, Inc.
2070 Las Palmas Drive
Carlsbad, CA  92011
Attention:  Will McGuire, Chief Executive Officer
Email:  [email protected]

 

in the case of notices to the Company, with a copy to (which shall not constitute notice):

 

Diamond Law, Professional Corporation
5755 Oberlin Drive, Suite 301
San Diego, CA 92121
Attention:  Daniel Diamond
Email:  [email protected]

 

 

 

 

 

 

 

 

 

 

 

[SIGNATURE PAGE FOLLOWS]

 

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first above written.

 

PURCHASER:

STRATA SKIN SCIENCES, INC.

Name:  Robert Moccia

Title:  Chief Executive Officer

COMPANY:

RA MEDICAL SYSTEMS, INC.

Name:  Will McGuire

Title:  Chief Executive Officer

EXHIBIT A

 

CERTAIN DEFINITIONS

 

For purposes of the Agreement (including this Exhibit A), the following defined terms shall have the following meanings:

 

“Affiliate” means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person.

 

“Ancillary Documents” means the Bill of Sale, the Assignment and Assumption Agreement, Trademark Assignment Agreement, the Services Agreement, and the other agreements, instruments and documents required to be delivered at the Closing.

 

“Business IT Systems” means all Software, computer hardware, servers, networks, platforms, peripherals, and similar or related items of automated, computerized, or other information technology (IT) networks and systems (including telecommunications networks and systems for voice, data, and video) owned, leased, licensed, or used (including through cloud-based or other third-party service providers) in the conduct of the Business.

 

“Closing Date” means the Effective Date.

 

“Code” means the Internal Revenue Code of 1986, as amended.

 

“Competition” means engaging, directly or indirectly, in the design, development, production, manufacturing, distribution, provision, licensing, promotion, marketing or sale of any products or services that compete with any products or services (including, but not limited to, the Products) in the field of dermatology, including, but not limited to, both the treatment and diagnosis of skin disorders.

 

“Consent” means any notification, authorization, consent, approval or waiver.

 

“Contract” means any note, bond, mortgage, indenture, loan, contract, factoring arrangement, license, agreement, lease or other instrument or obligation, written or oral, to which the party in question is a party or by which it or any of its assets may be bound.

 

“Document Deliverables” mean, without duplication, (a) all Regulatory Documentation; (b) books, records, manuals, files, invoices, inventory records, product specifications, customer lists (for the 36 months immediately preceding the date of this Agreement, where practical and available), cost and pricing information, physician lists, supplier lists, business plans, catalogs, customer literature, quality control records and credit records of customers; (c) research, design and development files, records and laboratory books; (d) all sales, advertising, marketing, promotional and training materials and all other printed or written materials used or held for use primarily in the operation of the Business; (e) all data relevant to the manufacturing of the Product; (f) copies of current and former employee and contractor agreements relating to the nonuse and nondisclosure (or the like) of Intellectual Property Assets; (g) copies of current and former employee and contractor agreements relating to the nonuse and nondisclosure (or the

 

 

like) of Intellectual Property with such Person’s former employer; and (h) all other documentation related to the Transferred Assets.

 

“Effective Date” has the meaning set forth in the preamble to this Agreement.

 

“Employee Plans” means all “employee benefit plans” within the meaning of Section 3(3) of Employee Retirement Income Security Act of 1974, as amended, all formal written and informal plans and all other compensation and benefit plans, Contracts, policies, programs and arrangements maintained, sponsored, or contributed or required to be contributed to by the Company on behalf of any Business Employee (other than routine administrative procedures), including all pension, profit sharing, savings and thrift, bonus, stock bonus, stock option or other cash or equity-based incentive or deferred compensation, severance pay and medical and life insurance plans in which any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller or their dependents participate.

 

“Encumbrance” means any charge, claim, community property interest, pledge, condition, equitable interest, Lien, option, security interest, mortgage, easement, encroachment, right of way, right of first refusal, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.

 

“Environmental Claim” means any Proceeding, Governmental Order, Lien, fine, penalty, or, as to each, any settlement or judgment arising therefrom, by or from any Person alleging liability of whatever kind or nature (including liability or responsibility for the costs of enforcement proceedings, investigations, cleanup, governmental response, removal or remediation, natural resources damages, property damages, personal injuries, medical monitoring, penalties, contribution, indemnification and injunctive relief) arising out of, based on or resulting from:  (a) the presence, Release of, or exposure to, any Hazardous Materials; or (b) any actual or alleged non‑compliance with any Environmental Law or term or condition of any Environmental Permit.

 

“Environmental Law” means any applicable Law, and any Governmental Order or binding agreement with any Governmental Body:  (a) relating to pollution (or the cleanup thereof) or the protection of natural resources, endangered or threatened species, human health or safety, or the environment (including ambient air, soil, surface water or groundwater, or subsurface strata); or (b) concerning the presence of, exposure to, or the management, manufacture, use, containment, storage, recycling, reclamation, reuse, treatment, generation, discharge, transportation, processing, production, disposal or remediation of any Hazardous Materials.  The term “Environmental Law” includes, without limitation, the following (including their implementing regulations and any state analogs):  the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601 et seq.; the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 et seq.; the Federal Water Pollution Control Act of 1972, as amended by the Clean Water Act of 1977, 33 U.S.C. §§ 1251 et seq.; the Toxic Substances Control Act of 1976, as amended, 15 U.S.C. §§ 2601 et seq.; the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001 et seq.; the Clean Air Act of 1966, as amended by the Clean Air Act Amendments of

 

 

1990, 42 U.S.C. §§ 7401 et seq.; and the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. §§ 651 et seq.

 

“Environmental Notice” means any written directive, notice of violation or infraction, or notice respecting any Environmental Claim relating to actual or alleged non‑compliance with any Environmental Law or any term or condition of any Environmental Permit.

 

“Environmental Permit” means any Governmental Authorization, letter, clearance, consent, waiver, closure, exemption, decision or other action required under or issued, granted, given, authorized by or made pursuant to Environmental Law.

 

“FDA” means the United States Food and Drug Administration and any comparable agencies in foreign countries, together in each case, with any successor agencies.

 

“FDCA” means the Federal Food, Drug and Cosmetics Act, as amended, and all related rules, regulations and guidelines promulgated thereunder by the FDA.

 

“Federal Health Care Program” means any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States government and any state health care program, as defined in 42 U.S.C. § 1320a‑7(h).

 

“Financial Statements” means the segment information relating to the “Dermatology” segment of Seller included in the consolidated financial statements (including all related notes and schedules) of Seller included or incorporated by reference in the Seller SEC Documents.

 

“GAAP” means generally accepted accounting principles as in effect from time to time in the United States of America.

 

“Governmental Authorization” means any permit, license, registration, authorization, certificate, franchise, concession, approval, consent, ratification, permission, or clearance for the Product issued, granted, given or otherwise made available by or under the authority of any Governmental Body or pursuant to any Law, including (a) pricing or reimbursement approvals, (b) 510(k)s and supplements and amendments thereto, and (c) labeling approvals.

 

“Governmental Body” means any national, federal, regional, state, provincial, local, or foreign or other governmental authority or instrumentality, legislative body, court, administrative agency, regulatory body, commission or instrumentality, including any multinational authority having governmental or quasi‑governmental powers, or any other industry self-regulatory authority.

 

“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Body.

 

“Health Care Laws” means, to the extent applicable, all:  (a) Laws administered by the FDA, including the FDCA, and any other federal, state and foreign Laws governing the manufacturer, distribution, and sale of medical devices; (b) federal fraud and abuse Laws, including the federal physician self-referral law, 42 U.S.C. § 1395nn, the federal anti‑kickback

 

 

statute, 42 U.S.C. § 1320a‑7b, the federal civil monetary penalty statute, 42 U.S.C. § 1320a‑7a, federal laws and regulations governing exclusion including 42 U.S.C. § 1320a‑7, the civil false claims act (31 U.S.C. § 3729 et seq.) and the regulations promulgated pursuant to such statutes, as well as similar state laws and regulations; (c) federal and state Laws regarding the submission of false claims, false billing and false coding, fee splitting, and health care professional self-referrals; (d) the Health Insurance Portability and Accountability Act of 1996 and all Laws promulgated pursuant thereto or in connection therewith, the Health Information Technology for Economic and Clinical Health Act, found in the American Recovery and Reinvestment Act of 2009 at Division A, Title XIII and Division B, Title IV, and any other Law governing; (e) any Law or applicable regulation with respect to expulsion, suspension or debarment from any Federal Health Care Program; (f) any other Law applicable to any other aspect of the Business; and (g) with regard to clauses (a) through (f) above, any Law succeeding thereto and all amendments and supplements to such Laws.

 

“Intellectual Property” means all of the following in any jurisdiction throughout the world, together with all income, royalties, damages and payments due or payable as of the Closing or thereafter (including damages and payments for past, present or future infringements or misappropriations thereof, the right to sue and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world):  (a) patents and industrial designs (including utility model rights, design rights and industrial property rights), patent and industrial design applications, patent disclosures and inventions (whether or not patentable and whether or not reduced to practice), design specifications and drawings, and any reissue, continuation, continuation-in-part, revision, extension or reexamination thereof (collectively, “Patents”); (b) trademarks, service marks, trade dress, logos, slogans, trade names, Internet domain names, corporate names and other designations and indicia of origin (and all translations, adaptations, derivations and combinations of the foregoing and all logos related to any of the foregoing), together with all goodwill associated therewith (collectively, “Trademarks”); (c) copyrights, works of authorship, copyrightable works and mask works; (d) and all registrations, applications and renewals for any of the foregoing referenced in any of (a) through (c), together with all moral rights therein; (e) trade secrets and confidential and proprietary information (including ideas, discoveries, formulae, compositions, know-how, related processes and techniques, research and development information, models, drawings, specifications, designs, plans, proposals and technical data and manuals, nonclinical and clinical research data and results, regulatory, quality manufacturing and vendor/supplier data, files filings and information, instructions, materials, expertise and other technology applicable to formulations, compositions or products or to their manufacture, development, registration, use or marketing or to methods of assaying or testing them or processes for their manufacture, formulations containing them or compositions incorporating or comprising them, and including all biological, chemical, pharmacological, biochemical, toxicological, pharmaceutical, physical and analytical, safety, quality control, manufacturing, instructions, processes, formulae, expertise and information, relevant to the research, development, manufacture, use, importation, offering for sale or sale of, and/or which may be useful in studying, testing, developing, producing or formulating, products, or intermediates for the synthesis thereof (“Trade Secrets”); (f) software, computer programs, operating systems, applications, firmware and other code, including all source code, object code, application programming interfaces, data files, databases, protocols, specifications, and other documentation thereof, and related flow-charts, programmer notes, updates and data, whether in object or source

 

 

code form and all other documentation associated therewith (“Software”); (g) all other properties recognized as intellectual property anywhere in the world and any similar, corresponding or equivalent rights; and (h) all copies and tangible embodiments of any of the foregoing referenced in any of (a) through (g).

 

“Intellectual Property Agreements” means all licenses, sublicenses, consent to use agreements, settlements, coexistence agreements, covenants not to sue, waivers, releases, permissions and other Contracts, whether written or oral, relating to any Intellectual Property that is used or held for use in the conduct of the Business as currently conducted to which the Company is a party, beneficiary or otherwise bound.

 

“Intellectual Property Assets” means all Intellectual Property that is owned by the Company and used or held for use in the conduct of the Business as currently conducted (and not, for example, solely in any other vertical or business of the Company), together with all (i) royalties, fees, income, payments, and other proceeds now or hereafter due or payable to the Company with respect to such Intellectual Property; and (ii) claims and causes of action with respect to such Intellectual Property, whether accruing before, on, or after the date hereof/accruing on or after the date hereof, including all rights to and claims for damages, restitution, and injunctive and other legal or equitable relief for past, present, or future infringement, misappropriation, or other violation thereof.  For the avoidance of doubt, there are no Patents applicable to the Business.

 

“Intellectual Property Registrations” means all Intellectual Property Assets that are subject to any issuance, registration, or application by or with any Governmental Body or authorized private registrar in any jurisdiction, including issued Patents, registered Trademarks, domain names and copyrights, and pending applications for any of the foregoing.

 

“Knowledge of the Company” means the actual knowledge of the Company’s Board of Directors, Chief Executive Officer, Chief Financial Officer, or General Counsel, after conducting a reasonable inquiry and investigation (consistent with such Person’s title).

 

“Law” means any federal, state, local, municipal, foreign or other law, statute, constitution, principle of common law, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Body.

 

“Liabilities” means liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, known or unknown, absolute or contingent, accrued or unaccrued, matured or unmatured or otherwise.

 

“Lien” means any mortgage, deed of trust, pledge, security interest, hypothecation, assignment, lien (statutory or other), charge, or other encumbrance of any kind or nature whatsoever (including, without limitation, pursuant to any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any financing statement under the UCC or comparable law of any jurisdiction to evidence any of the foregoing) on personal or real property or fixtures.

 

 

“Losses” means losses, damages, liabilities, deficiencies, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers; provided, however, that “Losses” shall not include punitive damages, except to the extent actually awarded to a Governmental Body or other third party.

 

“Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of the Business, (b) the value of the Transferred Assets, or (c) the ability of Seller to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to:  (i) general economic or political conditions; (ii) conditions generally affecting the industries in which the Business operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement; or (vi) any changes in applicable Laws or accounting rules, including GAAP; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on the Business compared to other participants in the industries in which the Business operates.

 

“Person” means any individual, entity, trust, other partnership or association, or Governmental Body.

 

“Proceeding” means any action, arbitration, audit, hearing, investigation, litigation or suit (whether civil, criminal, administrative, judicial or investigative, whether formal or informal, whether public or private) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Body or arbitrator.

 

“Product” means that PHAROS excimer laser product, including any line extensions, modifications, improvements, additions, and successors thereto.

 

“Record” means data and information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form, including data and information used in, generated by, obtained for the benefit of, arising out of, related to, or otherwise used in connection with or necessary to the operation of the Business.

 

“Release” means any actual or threatened release, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, abandonment, disposing or allowing to escape or migrate into or through the environment (including, without limitation, ambient air (indoor or outdoor), surface water, groundwater, land surface or subsurface strata or within any building, structure, facility or fixture).

 

“Regulatory Documentation” means, with respect to the Product, all (a) documentation comprising the Governmental Authorizations, including all submissions, reports and

 

 

correspondence relating thereto, (b) correspondence and reports necessary to, or otherwise describing the ability to, commercially distribute, sell or market such Product, submitted to or received from Governmental Body (including minutes and official contact reports relating to any communications with any Governmental Body) and relevant supporting documents with respect thereto, including all advertising and promotion documents, annual and periodic reports, adverse event files and complaint files and (c) data contained in any of the foregoing.  “Regulatory Documentation” shall include all risk analysis reports, Failure Mode and Effects Analyses, Quality management reviews, and Post market surveillance reports.

 

“Representative” shall mean, with respect to any Person, such Person’s directors, officers, employees, advisors, agents, consultants, attorneys, accountants, investment bankers or other representatives.

 

“Restricted Period” means the period commencing on the Closing Date and ending on the seventh anniversary of the Closing Date.

 

“Restricted Territory” means any county in the State of California, each state in the United States and each country in the world.

 

“Seller SEC Documents” means any forms, statements, documents and reports filed or furnished by Seller with the SEC on or after August 15, 2019 and publicly available prior to the date hereof (including exhibits and other information incorporated by reference therein but excluding any predictive, cautionary or forward looking disclosures contained under the captions "risk factors", "forward looking statements" or any similar precautionary sections and any other disclosures contained therein that are predictive, cautionary or of a forward looking nature).

 

“Tax” or “Taxes” means (a) any federal, state, local, or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, retailer’s occupation taxes and other taxes commonly understood to be sales or use taxes, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not, (b) any obligations or liabilities for any amounts or items of the type described in clause (a) above of any other Person whether by Law, Contract or otherwise.

 

“Tax Authority” means any Governmental Body responsible for the administration or collection of any Tax.

 

“Tax Return” means any return (including any information return), report, statement, declaration, estimate, schedule, notice, notification, form, election, certificate or other document or information that is required to be filed with or submitted to, any Tax Authority in connection with the determination, assessment, collection or payment of any Tax or in connection with the administration, implementation or enforcement of or compliance with any Law relating to any Tax.

 

EXHIBIT B

 

BILL OF SALE

 

Dated as of: August 16, 2021

 

KNOW ALL MEN BY THESE PRESENTS that Ra Medical Systems, Inc., a Delaware corporation (“Seller”), for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, has granted, bargained, sold, conveyed, transferred, assigned and delivered, and by this Bill of Sale hereby grants, bargains, sells, conveys, transfers, assigns and delivers, to STRATA Skin Sciences, Inc., a Delaware corporation (“Purchaser”), its successors and assigns, all of Seller’s right, title and interest in and to the “Transferred Assets” (as such term is defined in the Asset Purchase Agreement dated as of August 16, 2021 (together with the Exhibits and Schedules thereto, the “Purchase Agreement”) by and between Seller and Purchaser, which Purchase Agreement is incorporated herein by this reference) owned by Seller, to have and to hold the same unto Purchaser, its successors and assigns, forever.

 

This Bill of Sale is subject in all respects to the terms of the Purchase Agreement, and all of the representations, warranties, covenants and agreements contained in the Purchase Agreement, all of which shall survive the execution and delivery of this Bill of Sale in accordance with the terms of the Purchase Agreement.

 

Seller hereby represents and warrants to Purchaser that Seller (a) has the right to transfer all of its right, title and interest in and to the Transferred Assets owned by Seller to Purchaser hereunder and (b) will execute and deliver all such other and further instruments of assignment or transfer as may be reasonably requested by Purchaser, from time-to-time, to effect, evidence and complete the aforesaid sale and transfer of the Transferred Assets to Purchaser pursuant hereto.

 

Signature Page Follows

 

IN WITNESS WHEREOF, Seller has executed and delivered this Bill of Sale as of the date first written above.

 

EXHIBIT C

 

ASSIGNMENT AND ASSUMPTION AGREEMENT

 

This Assignment and Assumption Agreement (the “Agreement”), effective as of August 16, 2021 (the “Effective Date”), is by and between Ra Medical Systems, Inc., a Delaware corporation (“Seller”), and STRATA Skin Sciences, Inc., a Delaware corporation (“Purchaser”).

 

WHEREAS, Seller and Purchaser have entered into a certain Asset Purchase Agreement, dated as of August 16, 2021 (the “Purchase Agreement”), pursuant to which, among other things, Seller has agreed to assign all of its rights, title and interests in, and Purchaser has agreed to assume all of Seller’s duties and obligations under, the Assigned Contracts (as defined in the Purchase Agreement).

 

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

 

 

 

 

 

[SIGNATURE PAGE FOLLOWS]

 

IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the date first above written.

 

RA MEDICAL SYSTEMS, INC.

Name:

Title:

STRATA SKIN SCIENCES, INC.

Name:

Title:

EXHIBIT D

 

TRADEMARK ASSIGNMENT AGREEMENT

 

This Trademark Assignment Agreement (this “Assignment”), dated as of August 16, 2021, is made by and between Ra Medical Systems, Inc., a Delaware corporation (“Assignor”), and Strata Skin Sciences, Inc., a Delaware corporation (“Assignee”).

 

WHEREAS, Assignor and Assignee have entered into that certain Asset Purchase Agreement, dated as of August 16, 2021 (the “Purchase Agreement”); and

 

WHEREAS, pursuant to the Purchase Agreement, Assignee has agreed to sell, convey, transfer, assign and deliver to Assignor, free and clear of all Liens to Assignor, among other Transferred Assets, the Trademarks of Assignee, and has agreed to execute and deliver this Assignment.

 

NOW, THEREFORE, in consideration of the mutual representations, warranties, promises, covenants and agreements contained herein and in the Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

 

 

 

 

 

IN WITNESS WHEREOF, the parties have duly executed and delivered this Assignment as of the date first above written.

 

ASSIGNOR:

RA MEDICAL SYSTEMS, INC.

Name:

Title:

ASSIGNEE:

STRATA SKIN SCIENCES, INC.

Name:

Title:

 

Trademarks

 

PHAROS standard character mark, Registration No. 6050533, registered on May 12, 2020.

EXHIBIT E

 

SERVICES AGREEMENT

 

SERVICES AGREEMENT

 

Between

 

RA MEDICAL SYSTEMS, INC.

 

And

 

STRATA SKIN SCIENCES, INC.

 

dated as of

 

August 16, 2021

 

SERVICES AGREEMENT

 

This Services Agreement, dated as of August 16, 2021 (this “Agreement”), is entered into between RA MEDICAL SYSTEMS, INC., a Delaware corporation (“Seller”), and STRATA SKIN SCIENCES, INC., a Delaware corporation (“Purchaser”).

 

RECITALS

 

WHEREAS, Purchaser and Seller have entered into that certain Asset Purchase Agreement, dated as of August 16, 2021 (the “Purchase Agreement”), pursuant to which Seller has agreed to sell and assign to Purchaser, and Purchaser has agreed to purchase and assume from Seller, certain of the assets, and certain specified liabilities, of the Business (as such term is defined in the Purchase Agreement), all as more fully described therein;

 

WHEREAS, in order to ensure an orderly transition of the Business to Purchaser and as a condition to consummating the transactions contemplated by the Purchase Agreement, Purchaser and Seller have agreed to enter into this Agreement, pursuant to which Seller will provide, or cause its Affiliates to provide, Purchaser with certain services, subject to the terms and conditions set forth herein; and

 

WHEREAS, capitalized terms used herein and not otherwise defined shall have the meaning ascribed to such terms in the Purchase Agreement.

 

NOW, THEREFORE, in consideration of the mutual agreements and covenants hereinafter set forth, Purchaser and Seller hereby agree as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Section 4.01                           Confidentiality.

 

 

 

 

fulfilling its obligations under this Agreement (the “Permitted Purpose”).  Any Receiving Party may disclose such Confidential Information only to its Representatives who have a need to know such information for the Permitted Purpose and who have been advised of the terms of this Section 4.01 and the Receiving Party shall be liable for any breach of these confidentiality provisions by such Persons; provided, however, that any Receiving Party may disclose such Confidential Information to the extent such Confidential Information is required to be disclosed by a Governmental Order, in which case the Receiving Party shall promptly notify, to the extent possible, the disclosing party (the “Disclosing Party”), and take reasonable steps to assist in contesting such Governmental Order or in protecting the Disclosing Party’s rights prior to disclosure, and in which case the Receiving Party shall only disclose such Confidential Information that it is advised by its counsel in writing that it is legally bound to disclose under such Governmental Order.

 

 

 

 

 

 

 

 

 

the next Business Day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 5.01):

 

 

Ra Medical Systems, Inc.
2070 Las Palmas Drive
Carlsbad, California  92011
E-mail:  [email protected]
Attention:  Chief Executive Officer

 

with a copy (which shall not constitute notice) to:

 

Diamond Law, Professional Corporation
5755 Oberlin Drive, Suite 301
San Diego, CA 92121
Attention:  Daniel Diamond
Email:  [email protected]

 

 

STRATA Skin Sciences, Inc.
5 Walnut Grove, Suite 140
Horsham, Pennsylvania  19044
E-mail:  [email protected]
Attention:  Chief Executive Officer

 

with a copy (which shall not constitute notice) to:

 

Stevens & Lee, P.C.
620 Freedom Business Center Drive, Suite 200
King of Prussia, Pennsylvania  19406
E-mail:  [email protected]
Attention:  Sunjeet S. Gill

 

 

 

 

 

negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

 

 

 

 

 

 

 

 

jurisdiction other than those of the State of Delaware.  Any legal suit, action or proceeding arising out of or based upon this agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States of America or the courts of the state of Delaware in each case located in the city of Wilmington and county of New Castle, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.  Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.  The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

 

 

 

[SIGNATURE PAGE FOLLOWS]

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

 

STRATA SKIN SCIENCES, INC.

Name:

Title:

RA MEDICAL SYSTEMS, INC.

Name:

Title

EXHIBIT F

 

POWER OF ATTORNEY

 

August 16, 2021

 

KNOW ALL MEN BY THESE PRESENTS that RA MEDICAL SYSTEMS, INC., a Delaware corporation, with an office located at 2070 Las Palmas Drive, Carlsbad, CA 92011 (the “Company”), hereby constitutes and appoints STRATA Skin Sciences, Inc., a Delaware corporation, with an office located at 5 Walnut Grove Drive, Suite 140, Horsham, PA 19044 (the “Purchaser”) and each officer or employee of the Purchaser, acting singly, with full power of substitution, in the name and on behalf of the Company to assign and transfer to the Purchaser all right, title and interest of the Company in, to and under each and every agreement, instrument and document coming within the purview of the agreements, instruments and documents which are necessary to effectuate the purchase by the Purchaser of the Transferred Assets pursuant to: (i) that certain Asset Purchase Agreement, dated as of August 16, 2021 (the “Purchase Agreement”), by and between the Purchaser and the Company; (ii) that certain Assignment and Assumption Agreement, dated as of the date hereof, by and between the Purchaser and the Company; and (iii) that certain Bill of Sale, dated as of the date hereof, which has been executed by the Company and delivered to the Purchaser.  Capitalized terms used but not defined herein shall have the meaning stated in the Purchase Agreement.

 

This power is coupled with an interest, is irrevocable.

 

[Signature Page Follows]

 

IN WITNESS WHEREOF, the Company has executed and delivered this Power of Attorney, effective as of the date first written above.

 

RA MEDICAL SYSTEMS, INC.

By:  __________________________

Name:

Title:

EXHIBIT X

 

DESCRIPTION OF BUSINESS

 

15.	All tools, documentation, service manuals, and any other materials used in servicing the Products.

16.	To the extent legally transferable to Purchaser, all rights of the Company or any Affiliate of the Company to enforce any agreement with any employee, consultant or contractor of such Person involving the Intellectual Property Assets.

17.	List of physician consultants and/or past or present Pharos advisory board participants including, but not limited to, dermatologists, dermatology physician assistants, and nurse practitioners.

18.	All social media accounts related to the Business.

B.	Excluded Assets

1.	All rights, deliverables or interests under any existing Contract between the Seller and any third party under which the Seller purchases or receives spare parts or other materials and supplies relating to the Business (the “Vendor Purchase Agreements”).

2.	All cash, cash equivalents (other than security deposits), accounts receivable and marketable securities of the Company.

3.	All furniture, fixtures, equipment, machinery, tools, vehicles, office equipment, supplies, computers, telephones and other Company tangible personal property.

4.	Contracts that are not Assigned Contracts (the “Excluded Contracts”).

5.	All Employee Plans and assets attributable thereto.

6.	Any interest in or right to any refund or credit of Taxes relating to the Business, the Transferred Assets, or applicable to, any taxable period (or portion thereof) ending on or prior to the Closing Date, any Tax assets and loss carry forwards, and any net operating losses of the Company.

7.	All rights which exist, accrue or will accrue to Seller or stockholder of Seller under this Agreement and the Ancillary Documents.

8.	All rights, claims and causes of action relating to any Excluded Asset or any Excluded Liability.

9.	All real estate or leases related to real property to which the Company is a party.

10.	Agreements, products, materials, documentation and services relating solely to other Company business lines, including DABRA lasers and catheters.

11.	DABRA-specific inventory and inventory retained for DABRA-related business purposes per Schedule AB.

12.	The assets, properties and rights specifically set forth on Schedule 1.2(j).

13.	Corporate seals, organization documents, minute books, stock books, tax returns, and corporate records of Seller.

14.	Anything not specifically detailed as a Transferred Asset in subsection A, including, without limitation, the assets of the Company which do not relate to the Business.

15.	All social media accounts that do not relate to the Business.

16.	There are no Patents applicable to the Business.