PURCHASE AND SALE AGREEMENT
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This Purchase and Sale Agreement (the "Agreement") is entered into this
23rd day of September, 2000, by and between PREMIER LASER SYSTEMS, INC., a
California corporation (the "Seller") and SURGILIGHT, INC., a Delaware
corporation (the "Buyer").
RECITALS
WHEREAS, Seller is a debtor in a Chapter 11 proceeding in the United
States Bankruptcy Court for the Central District of California (the "Bankruptcy
Court"); and,
WHEREAS, Seller desires to sell and Buyer desires to buy the business
and related assets of the Centauri Ophthalmic Laser System product line of
Seller on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises contained herein and
intending to be legally bound, the parties agree as follows:
1. PURCHASE OF ASSETS. Subject to the terms and conditions of this
Agreement, Seller shall sell, convey and transfer and Buyer shall purchase,
acquire and accept from Seller all right, title and interest in the following
assets:
(a) 150 Completed Er:YAG Laser Systems currently in Seller's inventory
(the "Product Sets").
(b) raw materials and work in process sufficient to complete a minimum
of 51% of 200 additional Product Sets.
(c) Seller's entire inventory of Touch Tips.
(d) Seller's entire inventory of fiber optic cables.
(e) those Patents listed in Exhibit "B" hereto.
(f) Those 510K regulatory submissions described as Er:YAG Ophthalmology
-K904630 and Er:YAG Anterior Capsulotomy K905141, and all clinical studies and
records related thereto.
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2. SELLER'S DISCLAIMER Seller expressly disclaims and negates any
representation or warranty, whether expressed or implied, relating to the
condition of the acquired assets (including but not limited to any warranty of
merchantability, of fitness for a particular purpose, or of conformity to models
or samples of materials), it being the intention of Seller and Buyer that the
Assets be conveyed "as is, where at" in their present condition and state or
repair.
3. PURCHASE PRICE. In consideration for Buyer's purchase of the assets
of Seller, Buyer shall pay to Seller the total sum of $3,725,000.00 as follows:
(a) Cash at Closing in the amount of $500,000 (of which $100,000.00
will come from Buyer's deposit); and, (b) A Purchase Note for an additional
$3,225,000, payable as follows:
(i) $1,000,000.00 on December 15, 2000, (ii) $1,000,000.00 on January
15, 2001, (iii) $725,000.00 on February 15, 2001, and (iv) $500,000.00 on
February 28, 2001.
Provided, however, if Seller delivers less than 1000 fiber optic cables
to Buyer at Closing then the Purchase Price will be reduced by an amount equal
to $400.00 multiplied by the number of fiber optic cables less than 1000 and
such reduction in the Purchase Price shall reduce the initial cash at closing
amount.
4. SECURITY. Pursuant to a Pledge and Security Agreement attached
hereto as Exhibit "A", the Purchase Note will be secured by (a) freely tradable
shares of Buyer's common stock that will have a value of $3,000,000.00; and, (b)
the assets. The number of shares of Buyer's common stock to be issued to Premier
as security will be determined based on the average closing price of a share of
Buyer's common stock for the five (5) business days immediately proceeding the
date of Closing.
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5. SELLER OPTION. Seller shall have the option to sell and the Buyer
the obligation to buy an additional ten (10) Product Sets at a fixed price of
$50,000.00. Seller must exercise this option by giving written notice to Buyer
on or before March 1, 2001 or the option shall expire and have not further legal
effect. In the event Seller exercises this option, Buyer's payment shall be due
on March 1, 2001.
6. ASSIGNMENT AND LICENSE OF PATENTS. Seller shall provide to Buyer at
Closing
(a) an Assignment of those patents of Seller relating solely to
ophthalmic devices and/or methods, as listed in Exhibit "B", attached hereto.
(b) a world-wide, irrevocable, transferable, Exclusive License (with
right to sublicense) under the patents listed in Exhibit "C" attached hereto,
limited solely to the ophthalmic field, to make, have made, use, offer for sale,
sell, and import ophthalmic products or ophthalmic services.
The above Assignment and Exclusive License shall be in the form and on
the conditions set forth in Exhibit "D", attached hereto, entitled Patent
Assignment and License Agreement"
7. BANKRUPTCY COURT APPROVAL. Seller agrees that upon execution of this
Agreement by the parties hereto, Seller shall prepare and file a motion with the
Bankruptcy Court seeking, approval of this Agreement, including the following
terms and conditions relating to the submission of bids ("Overbids") for the
Assets to be sold hereunder:
(a) Only persons or entities that comply with the following procedures
will be deemed qualified bidders ("Qualified Bidders") at the hearing on the
motion for approval of the sale of the Acquired Assets contemplated herein (the
"Sale Hearing"). Buyer shall be deemed a Qualified Bidder at the Sale Hearing.
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(b) All Qualified Bidders must prequalify at least ten (10) days before
the Sale Hearing. In order to prequalify, any person or entity intending to
submit an Overbid must provide to Seller (i) sufficient evidence of the person
or entity's ability to complete the transaction and (ii) a deposit of
$100,000.00.
(c) Any initial Overbid must be in a minimum amount of $4,000,000.00
(the "Initial Overbid"). Any Initial Overbid must be for the purchase of the
Assets on substantially the same terms as set forth in this Agreement, must be
all cash and must be closed within the timeframe required by this Agreement.
(d) If a qualified Initial Overbid is received, bidding will continue
at the Sale Hearing in increments of not less than $100,000.00 in value.
(e) All Overbids must be for all, and not less than all, of the Assets.
(f) If a sale of any of the Assets is consummated with a party other
than Buyer, Seller shall, at the Closing of the transaction, (1) return Buyer's
deposit in full, and (2) pay to Buyer a break-up fee equal to 2.5% of the total
consideration for the purchase and sale.
8. CLOSING. The Closing under this Agreement shall take place on or
before October 18, 2000, or at such other time as mutually agreed upon by the
parties.
9. REPRESENTATIONS AND WARRANTIES.
a. TITLE TO ASSETS. Except as disclosed to Buyer, on the Closing Date,
Seller represents and warrants that Seller will have good and transferable title
to the Assets, free and clear of any lien, mortgage, charge, security interest,
pledge or other encumbrance or other adverse claim or interest of any nature,
other than the security interest to secure payment of the purchase price
hereunder.
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b. GOVERNMENT AUTHORIZATIONS AND THIRD PARTY APPROVALS Buyer and Seller
represent and warrant that no authorizations or approvals of any governmental
body or regulatory authority is required to be obtained by either of them in
connection with the execution, delivery or performance of the Agreement, or, if
so required, each has or will, prior to Closing, obtain such required
authorizations or approvals. Seller and Buyer will obtain any and all necessary
third party approvals that are required for each to obtain in connection with
the execution, delivery or performance of this Agreement.
c. PATENTS. Except as specifically disclosed to Buyer in writing,
Seller represents and warrants that Seller owns, possesses, and has good title
to the Patents listed in Exhibit "B" and Exhibit "C" hereto.
d. LITIGATION. Except as specifically disclosed by Seller to Buyer in
writing, Seller represents and warrants that there are no legal actions, suits,
arbitrations, or other legal administrative or other governmental proceedings
pending or threatened against the Seller, or the Assets, or business that could
have a material adverse affect on the Assets; and that Seller is not aware of
any facts that might result in any such action, suit, arbitration, or other
proceeding.
10. CONDITIONS PRECEDENT TO CLOSING. Unless waived, in whole or in
part, in writing by parties, the obligations of each party under this Agreement
are subject to and conditioned on the satisfaction, at or prior to the closing,
of all of the terms and conditions of this Agreement to be complied with and
performed by each party at or prior to the closing, and subject to the following
conditions:
a. Approval of this Agreement and the Letter Agreement to be filed
under seal with the Bankruptcy Court dated September 23, 2000, by the Bankruptcy
Court in Seller's Chapter 11 proceedings.
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b. All corporate and other proceedings and actions taken in connection
with the transactions contemplated by this Agreement, and all certificates,
agreements, instruments, and documents mentioned in this Agreement shall be
satisfactory in form and substance to the parties and their counsel.
c. The representations and warranties of parties in this Agreement
shall be deemed to have been made again on the closing date and to be true and
correct at that time.
d. Approval of this Agreement and the transaction by the boards of
directors of Seller and Buyer.
11. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All statements of fact
contained in any memorandum, certificate, instrument, or other document
delivered by or on behalf of Seller for information or reliance pursuant to this
Agreement shall be deemed representations and warranties by Seller under this
Agreement. All representations and warranties of the parties shall survive the
closing.
12. AMENDMENTS AND WAIVER. This Agreement may be amended or modified at
any time and in all respects, and any provision may be waived, by an instrument
in writing executed by Buyer and Seller, or by either of them in case of a
waiver.
13. ASSIGNMENT. Neither this Agreement nor any right created by this
Agreement shall be assignable by either Seller (or its successors in interest)
or Buyer without the prior written consent of the other, except for an
assignment incident to a merger, consolidation, or reorganization of either
party. Nothing in this Agreement, expressed or implied, is intended to confer on
any person, other than the parties and their successors, any rights or remedies
under or by reason of this Agreement.
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14. NOTICES. Any notice, communication, request, reply, or advice
("notice") required or permitted to be given, made, or accepted by either party
to the other under this Agreement must be in writing and may be given or be
served by depositing it in the United States mail, addressed to the party to be
notified, postage prepaid and registered or certified with return receipt
requested or by delivering it in person to the party. Notice deposited in the
mail in the manner described in this paragraph shall be effective only if and
when received by the party to be notified. For purposes of notice, the addresses
of the parties shall, until changed as provided in this Agreement, be as
follows:
Buyer: SURGILIGHT, INC.
12001 Science Drive, Suite 140
Orlando, Florida 32826
Seller: PREMIER LASER SYSTEMS
3 Morgan
Irvine, CA 92618
42. HEADINGS. Headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
43. COUNTERPART EXECUTION. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
44. PARTIES IN INTEREST. All the terms and provisions of this Agreement
shall be binding on and inure to the benefit of and be enforceable by Buyer and
Seller, their heirs, executors, administrators, successors, and permitted
assigns.
45. INTEGRATED AGREEMENT. This Agreement constitutes the entire
agreement between the parties, and there are no agreements, understandings,
restrictions, warranties, or representations between the parties other than
those set forth or provided for in this Agreement.
46. CHOICE OF LAW. It is the intention of the parties that the laws of
Florida shall govern the validity of this Agreement, the construction of its
terms, and the interpretation of the rights and duties of the parties.
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47. ATTORNEY'S FEES AND COURT COSTS. If legal action is commenced to
enforce this Agreement, the prevailing party in such action shall be entitled to
recover its costs and reasonable attorneys' fees in addition to any other relief
granted.
48. NON-WAIVER OF RIGHTS. No delay or omission on the part of any party
hereto in exercising any right hereunder shall operate as a waiver of such right
or any other right under this Agreement.
49. INTERPRETATION AND CONSTRUCTION. The parties hereto have each
negotiated the terms hereof, reviewed this Agreement carefully, and discussed it
with their respective legal counsel. It is the intent of the parties that each
word, phrase, and sentence and other part hereof shall be given its plain
meaning, and that rules of interpretation or construction of agreements that
would construe any ambiguity of any part hereof against the draftsman, by virtue
of being the draftsman, shall not apply.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
PREMIER LASER SYSTEMS, INC.,
a California corporation
By:
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Its:
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SURGILIGHT, INC., a Delaware
Corporation
By:
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Its:
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