SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported): July 18, 1996 (July 3, 1996)
LASERSIGHT INCORPORATED
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Exact name of registrant as specified in its charter
Delaware
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State or other jurisdiction of incorporation
0-19671 65-0273162
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Commission File Number I.R.S. Employer Identification No.
12161 Lackland Road, St. Louis, Missouri 63146
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Address of Principal Executive Offices
Registrant's telephone number, including area code: (314) 469-3220
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Item 2. Acquisition or Disposition of Assets
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On July 3, 1996, LaserSight Incorporated (the "Registrant") acquired the
assets of the ophthalmic practice known as the Northern New Jersey Eye
Institute. The transaction was completed by means of the merger of Eye
Diagnostics & Surgery, P.A. (EDS), after reorganization as a general business
corporation, and Cataract Hotline, Inc. (CHI) with and into a newly-formed,
wholly-owned subsidiary of Registrant. In addition, the Registrant purchased
certain assets utilized in the ophthalmic practice from John W. Norris, M.D. The
sellers of EDS, John W. Norris, M.D. and Bernard Spier, M.D., received 172,842
unregistered shares of Registrant's common stock. The sellers of EDS may receive
up to 86,421 additional shares two years from the date of the transaction if
Registrant's stock price is lower than $15.00 per share (adjusted for stock
splits, etc.) at that time. The seller of CHI, Michael R. Norris, received
16,667 unregistered shares of Registrant common stock. The seller of CHI may
receive up to 8,333 additional shares two years from the date of the transaction
if Registrant's stock price is lower than $15.00 per share (adjusted for stock
splits, etc.) at that time. The seller of certain assets, John W. Norris, M.D.,
received 16,089 unregistered shares of Registrant common stock and a 5.05
percent promissory note in the total amount of $340,000 due on September 13,
1996. The seller of certain assets may receive up to 8,044 additional shares two
years from the date of the transaction if Registrant's stock price is lower than
$15.00 per share (adjusted for stock splits, etc.) at that time. The funds for
the payment of the note will be provided by the Registrant's cash from
operations and/or external financing sources. Registrant also entered into a
25-year services agreement with the physicians to provide management,
administrative, and related services.
Item 7. Financial Statements and Exhibits
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a) Financial Statements.
As of the date of filing of this current report on Form 8-K, it is
impracticable for the Registrant to provide the financial statements
required by this Item 7(a). In accordance with Item 7(a)(4) of Form 8-K,
such financial statements shall be filed by amendment to this Form 8-K no
later than 60 days after July 18, 1996.
b) Pro Forma Financial Information.
As of the date of filing of this current report on Form 8-K, it is
impracticable for the Registrant to provide the pro forma financial
information required by this Item 7(b). In accordance with Item 7(b) of
Form 8-K, such financial statements shall be filed by amendment to this
Form 8-K no later than 60 days after July 18, 1996.
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c) Exhibits
2.(i) Agreement and Plan of Merger dated April 18, 1996 (EDS)
2.(ii) Amendment to the Agreement and Plan of Merger dated June 17, 1996.
2.(iii) Second Amendment to the Agreement and Plan of Merger dated
July 3, 1996.
2.(iv) Agreement and Plan of Merger dated April 18, 1996 (CHI)
2.(v) Amendment to the Agreement and Plan of Merger dated June 17, 1996.
2.(vi) Asset Purchase Agreement dated April 18, 1996.
2.(vii) Amendment to Asset Purchase Agreement dated June 17, 1996.
2.(viii) List of Omitted Schedules.
Pursuant to Item 601(b)(2) of Regulation S-K,
Registrant agrees to furnish supplementally a
copy of any of the omitted schedules listed on
Exhibit 2.(viii) hereto to the Commission upon
its request.
SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
LaserSight Incorporated
Date: July 18, 1996 By: /s/Gregory L. Wilson
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Gregory L. Wilson
Chief Financial Officer
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FORM 8-K
EXHIBIT INDEX
2.(i) Agreement and Plan of Merger dated April 18, 1996 (EDS)
2.(ii) Amendment to the Agreement and Plan of Merger dated June 17, 1996.
2.(iii) Second Amendment to the Agreement and Plan of Merger dated
July 3, 1996.
2.(iv) Agreement and Plan of Merger dated April 18, 1996 (CHI)
2.(v) Amendment to the Agreement and Plan of Merger dated June 17, 1996.
2.(vi) Asset Purchase Agreement dated April 18, 1996.
2.(vii) Amendment to Asset Purchase Agreement dated June 17, 1996.
2.(viii) List of Omitted Schedules.
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of April 18, 1996 (the
"Agreement"), by and among LASERSIGHT INCORPORATED, a Delaware corporation
("Parent"), LSI ACQUISITION, INC., a New Jersey corporation ("Newco"), EYE
DIAGNOSTICS & SURGERY, P.A., a New Jersey corporation, d/b/a Northern NJ Eye
Institute (the "Company"), JOHN W. NORRIS, M.D. ("Norris"), and BERNARD SPIER,
M.D. ("Spier" and collectively with Norris, the "Stockholders").
R E C I T A L S
WHEREAS, prior to the merger contemplated by this Agreement the Company
shall reorganize as a general business corporation;
WHEREAS, Parent desires to acquire all of the issued and outstanding
shares of the Company's common stock, no par value per share (the "Company
Common Stock") by means of a merger (the "Merger") of the Company with and into
Newco (with Newco being the surviving corporation), pursuant to which the
Stockholders shall receive shares of stock of Parent;
WHEREAS, for federal income tax purposes, it is intended that the Merger
shall qualify as a reorganization within the meaning of Section 368 (a) of the
Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, the Company and Parent each desires to make certain
representations, warranties and agreements in connection with the Merger and
also to prescribe various conditions thereto.
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreements herein contained, the parties hereto agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1. The Merger. Upon the terms and subject to the conditions
hereof, and in accordance with the provisions of New Jersey Business Corporation
Act, as amended (the "Act"), the Company shall be merged with and into Newco as
soon as practicable after satisfaction or waiver of the conditions set forth in
Article VI. Following the Merger, the separate existence of the Company shall
cease, and Newco shall continue as the surviving corporation in the Merger (the
"Surviving Corporation"). The Company and Newco are sometimes herein
collectively referred to as the "Constituent Corporations".
SECTION 1.2. Effect of the Merger. The Merger shall have the effects set
forth in the Act. From and after the Effective Time (as defined below), the
Surviving Corporation shall be a wholly-owned subsidiary of Parent.
SECTION 1.3. Articles of Incorporation of the Surviving Corporation. At
the Effective Time and without any further action on the part of the Constituent
Corporations, the Articles of Incorporation of Newco, as in effect immediately
prior to the Effective Time, shall be the Articles of Incorporation of the
Surviving Corporation until duly amended or repealed as provided therein or as
otherwise provided by law.
SECTION 1.4. Bylaws of the Surviving Corporation. At the Effective Time
and without any further action on the part of the Constituent Corporations, the
Bylaws of Newco, as in effect immediately prior to the Effective Time, shall be
the Bylaws of the Surviving Corporation until duly amended or repealed as
provided therein or as otherwise provided by law.
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SECTION 1.5. Board of Directors and Officers of the Surviving Corporation.
At the Effective Time and without any further action on the part of the
Constituent Corporations, the directors and the officers of Newco immediately
prior to the Effective Time shall be the directors and initial officers of the
Surviving Corporation, respectively, each of such directors and officers to hold
office until their respective successors are duly elected and qualified, or
their earlier death, resignation or removal.
SECTION 1.6. Effective Time of the Merger. The Constituent Corporations
will cause a certificate of merger related to the Merger of the Company into
Newco (the "Certificate of Merger") and such other documents as are required by
the Act to be duly filed with the New Jersey Secretary of State prior to 4:00
p.m. eastern time on the Closing Date (as hereinafter defined), provided that
the conditions set forth in Article VI have been satisfied or waived. The Merger
shall become effective upon the filing of the Certificate of Merger and such
other documents as are required by the Act to be filed (the time of such filing
being the "Effective Time").
ARTICLE II
CONVERSION OF COMPANY COMMON STOCK
SECTION 2.1. Conversion of Capital Stock. As of the Effective Time, by
virtue of the Merger and without any action on the part of the holders of the
capital stock of the Constituent Corporations:
(a) Cancellation of Treasury Stock. All shares of Company Common Stock
that are owned directly or indirectly by the Company ("Treasury Company Common
Stock"), shall be cancelled, and no consideration shall be delivered in exchange
therefor.
(b) Conversion of the Company Common Stock. Subject to Section 2.7, each
issued and outstanding share of the Company Common Stock, other than Treasury
Company Common Stock, shall be converted into, or become exchangeable for, as
applicable, the following: the number of shares of validly issued, fully paid
and nonassessable common stock, $.001 par value, of Parent ("Parent Common
Stock") equal to the Company Conversion Ratio (as defined herein). For purposes
of this Agreement, "Company Conversion Ratio" means a fraction, the numerator of
which is equal to 172,842, and the denominator of which is equal to the number
of shares of Company Common Stock issued and outstanding immediately prior to
the Effective Time.
SECTION 2.2. Reconciliation of Purchase Price.
(a) On the second anniversary of the Closing Date (the "Valuation Date"),
Parent shall calculate the purchase price shortfall (the "Purchase Price
Shortfall") by subtracting (i) $2,592,632.00, from (ii) the number resulting
from multiplying 172,842 times the Adjusted Valuation Price (as defined herein).
If the Purchase Price Shortfall is a positive number no further action will be
necessary. If the Purchase Price Shortfall is a negative number, then Parent
agrees to (i) pay the amount of the Purchase Price Shortfall in cash to the
Stockholders, or (ii) issue to the Stockholders additional shares of Parent
Common Stock with a value equal to the Purchase Price Shortfall (such shares of
Parent Common Stock shall be referred to as "Additional Stock"), or (iii)
resolve the Purchase Price Shortfall through a combination of the payment of
cash and the issuance of Additional Stock. Parent, in its sole discretion, shall
determine whether to pay cash or issue shares of Parent Common Stock to pay the
Purchase Price Shortfall.
The "Adjusted Valuation Price" shall equal the average closing price of a share
of Parent Common Stock for the ten calendar day period immediately preceding the
second anniversary of the Closing Date, as reported by the NASDAQ Stock Market
or such other securities exchange or national market system on which Parent
Common Stock is then listed.
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(b) Notwithstanding the foregoing, in no event will (i) the amount of the
Purchase Price Shortfall exceed $864,212.00, or (ii) Parent be required to issue
more than 86,421 shares of Additional Stock.
(c) Any payment of cash or distribution of Additional Stock to a
Stockholder pursuant to this Section 2.2 shall be in the same proportion to the
aggregate amount of payments or distributions, as applicable, pursuant to this
Section 2.2 as the number of shares of Parent Common Stock such Stockholder
received at the Closing (as defined in Section 7.1) bears to the aggregate
number of shares of Parent Common Stock issued at the Closing.
(d) Notwithstanding the foregoing, the number of shares of Additional
Stock to be issued pursuant to this Agreement shall be equitably adjusted to the
extent that such adjustment is necessary to preserve the economic value of such
shares in the event of a stock dividend, stock split, reverse stock split, share
combination, recapitalization, merger, consolidation or similar event, of or by
Parent between the date of this Agreement and the date Additional Stock is
issued.
(e) No fractional shares of Parent Common Stock will be issued, but in
lieu thereof a cash payment shall be calculated in accordance with Section 2.7
utilizing the Adjusted Valuation Price.
SECTION 2.3. Status of Newco Stock. At the Effective Time, by virtue of
the Merger and without any action on the part of any holder of any capital stock
of Newco, each issued and outstanding share of common stock of Newco shall
continue unchanged and remain outstanding as a share of common stock of Newco.
SECTION 2.4. Payment Exchange of Certificates. At Closing the Company
shall deliver to Parent the certificates representing all of the issued and
outstanding shares of capital stock of the Company, duly endorsed in blank for
transfer or accompanied by appropriate stock powers duly executed in blank. In
exchange for the delivery of such certificates, Parent shall deliver to the
Company or the Stockholders the consideration as described in Section 2.1.
Parent shall have no obligation to deliver to Stockholders the consideration
described in Section 2.1 except to the extent that Stockholders have caused
certificates representing Company Common Stock (or affidavits of lost
certificate in form and substance acceptable to Parent, if applicable) to be
tendered to Parent.
SECTION 2.5. No Further Ownership Rights in Company. At and after the
Effective Time, each holder of shares of Company Common Stock immediately prior
to the Effective Time shall cease to have any rights as a stockholder of the
Company, except for the right to surrender such stockholder's certificates in
exchange for receipt of the consideration described in Section 2.1, and after
the Effective Time, no transfer of shares of Company Common Stock which were
outstanding immediately prior to the Effective Time shall be made on the stock
transfer books of the Company.
SECTION 2.6. Transfer of Parent Common Stock. All Parent Common Stock
issued and delivered pursuant to this Agreement will be authorized but
previously unissued shares of the Parent's common stock which have not been
registered under the Securities Act of 1933, as amended (the "Securities Act").
Unless and until otherwise permitted by this Agreement, each certificate of
Parent Common Stock issued pursuant to this Agreement to any Stockholder, or
their nominee, shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"These shares have not been registered under the Securities Act of
1933 and may not be offered for sale, sold, pledged or otherwise disposed
of except pursuant to an effective registration statement under such Act or
pursuant to an exemption from the registration requirements of such Act.
Further, any such offer, sale, pledge or transfer is subject to the
conditions specified in an Agreement and Plan of Merger dated as of April
18, 1996 ("Agreement") delivered in connection with the issuance of such
shares by LaserSight Incorporated, a copy of which Agreement will be
furnished to the holder hereof upon request and without charge."
SECTION 2.7. Fractional Company Common Stock. No fraction of a share of
Parent Common Stock will be issued, but in lieu thereof each holder of Company
Common Stock who would otherwise be entitled to a fraction of a share of Parent
Common Stock (after aggregating all fractional shares of Parent Common Stock to
be received by such holder) shall receive from Parent an amount of cash (rounded
to the nearest whole cent), without interest, equal to such fraction multiplied
by the closing price of a share of Parent Common Stock as of the date of this
Agreement as reported by the NASDAQ Stock Market.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY AND THE STOCKHOLDERS
The representations and warranties set forth below in Sections 3.1 through
3.26 are made to Parent by the Company. The representations and warranties set
forth in Sections 3.27 through Section 3.31 are made to Parent by the Company
and the Stockholders. The representations and warranties set forth in Sections
3.32 through Section 3.33 are made to Parent by the Stockholders. In connection
with the following representations and warranties, to the extent any
representation or warranty is made "to the best of the Company's knowledge" such
phrase shall mean the knowledge of either of the Stockholders or Richard W.
Jones, Chief Operating Officer of the Company.
SECTION 3.1. Corporate Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the state of
New Jersey and has all requisite power and authority (corporate and other) to
own its properties and assets and to conduct its business as now conducted. The
Company is duly qualified to do business in the state of New Jersey, which is
the only jurisdiction in which the character or location of the properties owned
or leased by the Company or the nature of the business conducted by the Company
makes such qualification necessary.
SECTION 3.2. Capitalization of the Company. The authorized capital stock
of the Company consists of 1,000 shares of common stock, no par value, of which
200 shares are issued and outstanding and owned of record and beneficially by
Stockholders. All of the Company Common Stock has been duly authorized and
validly issued, and is fully paid and non-assessable. Except as set forth on
Schedule 3.2, there are no outstanding options, warrants, agreements, conversion
rights, preemptive rights, or other rights to subscribe for, purchase or
otherwise acquire any of the Company Common Stock. Except as set forth on
Schedule 3.2, the Stockholders have, and will have at the Closing, valid and
marketable title to all of the Company Common Stock, and shall deliver the
Company Common Stock to Parent at the Closing, free and clear of any liens,
claims, charges, security interests or other legal or equitable encumbrances,
limitations or restrictions of any kind or nature whatsoever.
SECTION 3.3. Subsidiaries and Equity Investments. The Company does not
have any subsidiaries, nor does the Company have any, direct or indirect,
investment interest in any entity which exceeds ten percent (10%) of the
ownership or voting rights of such entity, nor does the Company have, or
pursuant to any agreement have the right to acquire at any time by any means,
directly or indirectly, an equity interest or investment in any corporation,
partnership, joint venture or other entity.
SECTION 3.4. Authorization. The Company has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by the Company, the performance by the Company of its obligations hereunder, and
the consummation by the Company of the transactions contemplated hereby, have
been duly authorized by the unanimous vote of both the Company's Board of
Directors and the Stockholders. No other corporate action on the part of the
Company is necessary to authorize the execution and delivery of this Agreement
or the consummation of the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by the Company and, assuming this
Agreement constitutes valid and binding obligations of Parent and Newco, will
constitute a valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except to the extent that such enforcement
may be subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights
generally, and the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefore may be brought.
SECTION 3.5. No Violation. Except as set forth on Schedule 3.5, none of
the execution, delivery nor the performance by the Company of this Agreement
violates or will violate any provision of law, of any order, judgment or decree
of any court or other governmental or regulatory authority, or of the charter
documents or by-laws of the Company, nor violates or will result in a breach of
or constitute (with due notice or lapse of time or both) a default under any
contract, lease, loan agreement, mortgage, security agreement, trust indenture
or other agreement or instrument to which the Company is a party or by which it
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is bound or to which any of its properties or assets is subject, nor will result
in the creation or imposition of any lien, charge or encumbrance of any kind
whatsoever upon any of the properties or assets of the Company, nor will result
in the cancellation, modification, revocation or suspension of any of the
licenses, franchises, permits, authorizations or approvals referred to in
Section 3.15 hereof; provided, however, no representation or warranty is made
herein with respect to the items set forth on Schedule 3.15.
SECTION 3.6. Consents and Approvals. Except as set forth on Schedule 3.5,
no consent, waiver, authorization, or approval of any governmental or regulatory
authority, domestic or foreign, or of any other person, firm or corporation, and
no declaration to or filing or registration with any such governmental or
regulatory authority, is required in connection with the execution and delivery
of this Agreement by the Stockholders or the Company or the performance by the
Stockholders or the Company of their obligations hereunder, except as would not
have a Material Adverse Effect (as defined herein). For purposes hereof,
"Material Adverse Effect" means an event, condition, development or
circumstance, taken as a whole, which has or may have a more than five percent
(5%) monetary adverse effect on the assets, business, operations, condition
(financial or otherwise) of the Company.
SECTION 3.7. Financial Statements. The Stockholders and the Company have
heretofore furnished to Parent and Newco (i) copies of the unaudited financial
statements of the Company for the fiscal years ending December 31, 1993,
December 31, 1994 and December 31, 1995, and (ii) copies of the unaudited
internal financial statements (the "Balance Sheet") of the Company as of
February 29, 1996 (the "Balance Sheet Date"), copies of which are attached
hereto as Schedule 3.7 (such financial statements being hereinafter referred to
as the "Financial Statements"). The Financial Statements (a) were prepared on a
consistent basis throughout the periods covered thereby, (b) present fairly the
financial position, results of operations of the Company as of such dates and
for the periods then ended (subject, in the case of the interim Financial
Statements, to normal year-end adjustments consistent with prior periods),
(c) are complete and correct and in accordance with the books of account and
records of the Company, and (d) can be reconciled with the financial statements
and the financial records maintained and the accounting methods applied by the
Company for federal income tax purposes. Adequate records exist and are on the
Company's premises or otherwise available which support and document the
operations of the Company as reflected on the Financial Statements.
SECTION 3.8. Absence of Certain Changes or Events. Since the Balance Sheet
Date, there has been no Material Adverse Effect to the assets or liabilities, or
in the business or condition, financial or otherwise, or in the results of
operations, of the Company, except in the ordinary course of business. To the
best of the Company's knowledge, there is no event, condition, circumstance or
development which will have a Material Adverse Effect on the assets, properties,
operations, net income or financial condition of the Company.
SECTION 3.9. Tax Matters. All tax and information returns required to have
been filed by the Company with the United States of America, all state and local
government authorities and all foreign jurisdictions have been duly filed and
each such return correctly reflects the income, franchise, property, sales, use,
value-added, withholding, excise, capital or other tax liabilities and all other
information required to be reported thereon. The Company has paid all income,
franchise, business, property, sales, use, value-added, withholding, payroll,
excise, capital and other taxes shown to be due and payable on said returns, and
all penalties, assessments or deficiencies of every nature and description
incurred or accrued prior to the Balance Sheet Date, except to the extent that
such amounts are reserved for on the latest balance sheets included in the
Financial Statements. Except as set forth on Schedule 3.9, the income tax
returns of the Company have not been audited by any federal, state or local tax
authority or agency. No consent extending any statute of limitations has been
filed by the Stockholders or the Company with respect to any tax liability for
any year.
SECTION 3.10. Absence of Undisclosed Liabilities. The Company has no
outstanding claims, liabilities or indebtedness, contingent or otherwise, except
as set forth in the Financial Statements, other than liabilities incurred
subsequent to the Balance Sheet Date in the ordinary course of business not
involving borrowings by the Company, and except as would not have a Material
Adverse Effect. Except as shown in the Financial Statements, the Company is not
directly or indirectly liable upon or with respect to (by discount, repurchase
agreements or otherwise), or obligated in any other way to provide funds in
respect of, or to guarantee or assume, any debt, obligation or dividend of any
person, except endorsements in the ordinary course of business in connection
with the deposit of items for collection.
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SECTION 3.11. Interests in Real Property. The Company does not own any
real property.
SECTION 3.12. Leases. Schedule 3.12 attached hereto and made a part
hereof, contains an accurate and complete list and general description of the
terms of all leases to which the Company is a party (as lessee or lessor). As of
the Closing Date, each lease set forth in Schedule 3.12 (or required to be set
forth in Schedule 3.12) is in full force and effect; all rents and additional
rents due to date on each such lease have been paid; in each case, the lessee
has been in peaceable possession since the commencement of the original term of
such lease and is not in default thereunder and no material waiver, indulgence
or postponement of the lessee's obligations thereunder has been granted by the
lessor; and there exists no event of default or event, occurrence, condition or
act (including the merger hereunder) which, with the giving of notice, the lapse
of time or the happening of any further event or condition, would become a
default under such lease. The Company has not violated any of the terms or
conditions under any such lease in any material respect, and, as of the Closing
Date, to the best knowledge, information and belief of the Stockholders and the
Company, all of the covenants to be performed by any other party under any such
lease have been fully performed in all material respects. All buildings,
structures, improvements and fixtures leased or used by the Company in the
conduct of its businesses conform in all material respects to all applicable
codes and rules adopted by national and local associations and boards of
insurance underwriters; and all such buildings, structures, improvements and
fixtures are in good operating condition and repair.
SECTION 3.13. Personal Property. Except for properties and assets
reflected in the Financial Statements or acquired since the Balance Sheet Date
which have been sold or otherwise disposed of in the ordinary course of
business, the Company has good, valid and marketable title to (a) all its
material personal properties and assets (tangible and intangible), including,
without limitation, all the properties and assets reflected in the Financial
Statements, and (b) all the personal properties and assets purchased by the
Company since the Balance Sheet Date, in each case subject to no encumbrance,
lien, charge or other restriction of any kind or character, except for (i) liens
reflected in the Financial Statements, and (ii) liens reflected in the U.C.C.
lien searches, copies of which are attached to Schedule 3.13, and (iii) as set
forth on Schedule 3.13.
SECTION 3.14. Trademarks, Trade Names, Patents, Copyrights, and Know-How.
Set forth in Schedule 3.14 hereto is a true and correct list of all United
States and foreign trademarks, service marks, trade names, patents and
copyrights (either registered, applied for, or common law) owned by, registered
in the name of, licensed to, or used in the business of the Company (the
"Intangible Assets"). To the best of the Company's knowledge, there is no
restriction affecting the Company's use of any of the Intangible Assets, and no
license has been granted with respect thereto. The Company has not received
notice and is not aware of any challenge to the Company's use of the Intangible
Assets. Each of the Intangible Assets is not involved in any pending or, to the
best of the Company's knowledge, threatened administrative or judicial
proceeding, and, to the best of the Company's knowledge, does not conflict with
any rights of any other person, firm or corporation. To the best of the
Company's knowledge, none of the Company's operations involves any infringement
of any proprietary right of any other person, firm or corporation.
SECTION 3.15. Licenses, Permits and Governmental Approvals. Set forth in
Schedule 3.15 hereto is a true and complete list of all licenses, permits,
franchises, authorizations and approvals issued or granted to the Company and
any of the Professionals (as defined herein) by the United States, any state or
local government, any foreign national or local government, or any department,
agency, board, commission, bureau or instrumentality of any of the foregoing
(the "Licenses"), and all pending applications therefor. Each License has been
duly obtained, is valid and in full force and effect, and is not subject to any
pending or, to the best of the Company's knowledge, threatened administrative or
judicial proceeding to revoke, cancel or declare such License invalid in any
respect. The Licenses are sufficient in all respects to permit the lawful
conduct of the Company's business in the manner now conducted, and the Company's
operations are not being conducted in a manner which violates any of the terms
or conditions under which any License was granted. The parties acknowledge and
agree that the Licenses are not being transferred as part of the Merger.
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SECTION 3.16. Compliance with Laws. The business and operations of the
Company have been and are being conducted in all material respects in accordance
with all laws, regulations, orders and other legal requirements applicable
thereto, and neither Stockholders nor the Company has received notice of any
violation of any such law, regulation, order or other legal requirement, or is
in default with respect to any order, writ, judgment, award, injunction or
decree of any federal, state or local court or governmental or regulatory
authority or arbitrator, domestic or foreign, applicable to the Company or any
of its assets, properties or operations.
SECTION 3.17. Litigation. Except as set forth on Schedule 3.17, there are
no claims, actions, suits, proceedings, labor disputes or investigations pending
or, to the best of the Company's knowledge, threatened before any federal, state
or local court or governmental or regulatory authority, domestic or foreign, or
before any arbitrator of any nature, brought by or against either Stockholder
(in connection with the provision of professional services), or the Company or
any of the Company's officers, directors, employees, agents or affiliates
involving, affecting or relating to any assets, properties or operations of the
Company or the transactions contemplated by this Agreement. Neither the Company
nor any of its assets or properties is subject to any order, writ, judgment,
award, injunction or decree of any federal, state or local court or governmental
or regulatory authority or arbitrator, which affects the assets, properties,
operations, prospects, net income or financial condition or which would
interfere with the transactions contemplated by this Agreement.
SECTION 3.18. Contracts. Set forth in Schedule 3.12 or Schedule 3.18 hereto
is a list of all written contracts, agreements, documents and other instruments
to which the Company is a party and which have a term of one year or greater or
which in the aggregate provide for the expenditure of at least $2,500, including
without limitation (such contracts, agreements, documents and other instruments
to be referred to herein as "Material Contracts"), (i) contracts, agreements and
commitments between the Company and any medical doctor, doctor of osteopathy and
doctor of optometry ("Professionals"); (ii) purchase and supply contracts; (iii)
contracts, loan agreements, mortgages, security agreements, trust indentures,
promissory notes and other documents or arrangements relating to the borrowing
of money or for lines of credit; (iv) leases and subleases of real or personal
property; (v) agreements and other arrangements for the sale of any assets other
than in the ordinary course of business or for the grant of any options or
preferential rights to purchase any assets, property or rights; (vi) documents
granting any power of attorney with respect to the affairs of the Company; (vii)
suretyship contracts, working capital maintenance or other form of guaranty
agreements; (viii) contracts or commitments limiting or restraining the Company
or any of the Stockholders from engaging or competing in any lines of business
or with any person, firm, or corporation; (ix) partnership and joint venture
agreements; and (x) all amendments, modifications, extensions or renewals of any
of the foregoing. Schedule 3.18 also includes a list of all contracts,
agreements and commitments between the Stockholders, the other physician
employees of the Company and health maintenance organizations, preferred
provider organizations, physician hospital organizations or other similar
managed care entities. The parties acknowledge and agree that these contracts,
agreements and commitments are not held by the Company and are not being
transferred as part of the Merger. To the best of the Company's knowledge, each
Material Contract is valid, binding and enforceable against the parties thereto
in accordance with its terms, and in full force and effect on the date hereof,
except to the extent that such enforcement may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally. The Company has
performed all material obligations required to be performed by it to date under,
and is not in default in respect of, any Material Contract, and no event has
occurred which, with due notice or lapse of time or both, would constitute such
a default. To the best knowledge of Stockholders and the Company no other party
to any Material Contract is in default in respect thereof, and no event has
occurred which, with due notice or lapse of time or both, would constitute such
a default. True and complete originals or copies of all of the Material
Contracts have been delivered to Parent or its representatives by Stockholders
or the Company. The Company has no Material Contracts related, directly or
indirectly, to the operation of its business which is not in writing.
SECTION 3.19. Accounts Receivable. All accounts receivable payable to the
Company as reflected on the Company's books and records as of the Closing Date
are due and valid claims against account debtors for services rendered and, to
the Company's knowledge, are not subject to any defense, offset, or
counterclaims, except to the extent reflected on the most recent Financial
Statements. All accounts receivable arose in the ordinary course of business,
and none of the obligors of such receivables have refused or given notice that
it refuses to pay the full amount thereof. The Company has not incurred any
liabilities to customers for discounts, returns, allowances, or otherwise.
<PAGE>
SECTION 3.20. Employee Plans and Contracts. All employee benefit plans, as
defined by Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), sponsored or maintained by the Company ("Employee Plans")
are identified in Schedule 3.20. No such Employee Plan is a multi-employer plan
as defined in Section 3(37)(A) of ERISA. No such Employee Plan which is a
welfare benefit plan as defined in Section 3(1) of ERISA provides benefits to
employees of the Company after their retirement or other termination of
employment with Company.
SECTION 3.21. Insurance. Set forth in Schedule 3.21 hereto is a true and
complete list of all insurance policies in force with respect to the assets,
properties or operations of the Company (including, without limitation,
professional liability insurance maintained by or on behalf of the Stockholders
and Professionals), together with a summary description of the premiums
currently paid thereon, the hazards insured against and the dollar amount of
coverage. True and complete copies of all such insurance policies have been
furnished to Purchaser and Newco by Stockholders. Such policies are in full
force and effect in all material respects with reputable insurers in such
amounts and insure against such losses and risks (including product liability)
as are adequate to protect the properties and businesses of the Company.
SECTION 3.22. Labor Agreements. The Company is not a party to any agreement
with any labor organization applicable to employees of the Company.
SECTION 3.23. New Employee Plans and Certain Salaries. Since the Balance
Sheet Date the Company has not (i) instituted or agreed to institute any new
Employee Plan whereunder the Company has any obligations, contingent or
otherwise, (ii) made or agreed to make any increase in the compensation payable
or to become payable by the Company to any of its directors, officers or
employees, except in accordance with the customary and existing compensation
policies of the Company, or (iii) paid or accrued or agreed to pay or accrue any
bonus, percentage of compensation, or other like benefit to, or for the credit
of, any of the directors, officers or employees of the Company, except in
accordance with the customary and existing compensation policies of the Company.
SECTION 3.24. Transactions with Directors, Officers and Affiliates. Set
forth on Schedule 3.24 is a true and complete list of all transactions between
the Company and (i) Stockholders or any spouse or relative of the Stockholders,
or (ii) any director, officer, employee, stockholder or affiliate as defined in
Rule 405 promulgated by the Securities and Exchange Commission ("SEC") of the
Company, except on an arm's-length basis in accordance with normal business
practices. Except as set forth on Schedule 3.24, to the best knowledge of the
Stockholders and the Company, after reasonable inquiry, during the past three
(3) years none of the officers or directors of the Company, or any spouse of any
of such persons, has been a director or officer of, or has had any direct or
indirect interest in, any firm, corporation, association or business enterprise
which during such period has been a supplier, customer or sales agent of the
Company or has competed with or been engaged in any business of the kind being
conducted by the Company, except on an arm's-length basis in accordance with
normal business practices.
SECTION 3.25. Propriety of Records and Past Payments. Except for
transactions which in the aggregate would not have a Material Adverse Effect on
the business, financial condition, assets, liabilities, results of operations,
income or management of the Company: no funds or assets of the Company have been
used for illegal purposes; no unrecorded fund or assets of the Company has been
established for any purpose; no accumulation or use of the Company's corporate
funds has been made without being properly accounted for in the books and
records of the Company; all payments by or on behalf of the Company have been
duly and properly recorded and accounted for in their respective books and
records; no false or artificial entry has been made in the books and records of
the Company for any reason; no payment has been made by or on behalf of the
Company with the understanding that any part of such payment is to be used for
any purpose other than that described in the documents supporting such payment;
and the Company has not made, directly or indirectly, any illegal contributions
to any political party or candidate, either domestic or foreign.
SECTION 3.26. Powers of Attorney and Compensation of Employees. Set forth
in Schedule 3.26 is an accurate and complete list showing (i) the name and
address of each bank, trust companies, savings and loan associations and other
financial institutions at which the Company has an account or safe deposit box,
the number of any such account or any such box and the names of all persons
authorized to draw thereon or to have access thereto (prior to the Effective
Time the Company will deliver or make available to Parent copies of all records
pertaining to such accounts or safe deposit boxes), (ii) the names of all
persons, if any, holding powers of attorney from the Company and a summary
statement of the terms thereof, and (iii) the names of all persons whose
compensation from the Company for the fiscal year ended on December 31, 1995
<PAGE>
exceeded an annualized rate of $25,000, together with a statement of the full
amount paid or payable to each such person for services rendered during such
fiscal year.
SECTION 3.27. Accuracy of Information. None of the representations,
warranties or statements contained in this Agreement, in the exhibits hereto, or
in any other agreement, instrument or document executed or delivered by or on
behalf of Stockholders in connection with the transactions contemplated by this
Agreement contains any untrue statement of a material fact or omits to state any
material fact necessary in order to make any of such representations, warranties
or statements not misleading.
SECTION 3.28. No Changes Prior to Date of this Agreement. No Changes Prior
to Date of this Agreement. During the period from the Balance Sheet Date to and
including the date of this Agreement, except as expressly contemplated hereby or
set forth on the disclosure schedules hereto, the Company will not have (i)
incurred any liability or obligation of any nature (whether accrued, absolute,
contingent or otherwise), except in the ordinary course of business, (ii)
permitted any of its assets to be subjected to any mortgage, pledge, lien,
security interest, encumbrance, restriction or charge of any kind, (iii) sold,
transferred or otherwise disposed of any assets except in the ordinary course of
business, (iv) made any capital expenditure or commitment therefor, except in
the ordinary course of business, (v) declared or paid any dividend or made any
distribution on any shares of its capital stock, or redeemed, purchased or
otherwise acquired any shares of its capital stock or any option, warrant or
other right to purchase or acquire any such shares, (vi) made any bonus or
profit sharing distribution or payment of any kind, except in the ordinary
course of business, (vii) increased its indebtedness for borrowed money, except
current borrowings from banks or the Stockholders in the ordinary course of
business, or made any loan to any Person, (viii) written off as uncollectible
any notes or capitation fees, except write-offs in the ordinary course of
business charged to applicable reserves, none of which individually or in the
aggregate is material to the Company, (ix) granted any increase in the rate of
wages, salaries, bonuses or other remuneration of any executive employee or
other employees, except in the ordinary course of business, (x) canceled or
waived any claims or rights of substantial value, (xi) made any change in any
method or accounting or auditing practice, (xii) otherwise conducted its
business or entered into any transaction, except in the usual and ordinary
manner and in the ordinary course of its business, (xiii) agreed, whether or not
in writing, to do any of the foregoing, or (xiv) hired any new employees, except
in the ordinary course of business.
SECTION 3.29. Purchase for Investment; Restricted Securities. Purchase for
Investment; Restricted Securities. Each Stockholder will acquire the Parent
Common Stock for his own accounts for investment and not with a present view
toward any resale or distribution thereof. Certificates representing the
acquired Parent Common Stock shall bear the restrictive legend set forth in
Section 2.6 hereof indicating the absence of registration under the Securities
Act and imposing all applicable transfer restrictions thereon. The holders of
the Parent Common Stock issued pursuant to the terms hereof shall not transfer
such shares in violation of any applicable federal, state or local laws, rules
or regulations.
SECTION 3.30. Fraud and Abuse. None of the Company's officers, directors,
and employees, or the Stockholders have engaged in any activities which are
prohibited under U.S.C. 1320a-7b, or the regulations promulgated pursuant to
such statute, or related state or local statutes or regulations, or which are
prohibited by rules of professional conduct, including but not limited to the
following: (i) knowingly and willfully making or causing to be made a false
statement or representation of a material fact in any application for any
benefit or payment; (ii) knowingly and willfully making or causing to be made
any false statement or representation of a material fact for use in determining
rights to any benefit or payment; (iii) failure to disclose knowledge by a
claimant of the occurrence of any event affecting the initial or continued right
to any benefit or payment on its own behalf or on behalf of another, with intent
to fraudulently secure such benefit or payment; and (iv) knowingly and willfully
soliciting or receiving any remuneration (including any kickback, bribe, or
rebate), directly or indirectly, overtly or covertly, in cash or in kind or
offering to pay or receive such remuneration (a) in return for referring an
individual to a person for the furnishing or arranging for the furnishing of any
item or service for which payment may be made in whole or in part by Medicare or
Medicaid, or (b) in return for purchasing, leasing, or ordering or arranging for
or recommending purchasing, leasing, or ordering any good, facility, service, or
item for which payment may be made in whole or in part by Medicare or Medicaid.
<PAGE>
SECTION 3.31 Parent Common Stock.
(a) Each Stockholder acknowledges the delivery by Parent and such
Stockholder's receipt of (i) Parent's Annual Report on Form 10-K for the year
ended December 31, 1995, (ii) Parent's proxy statement relating to its 1995
annual meeting of stockholders, and (iii) such other publicly available
information relating to Parent as was requested by such Stockholder
(collectively, the "SEC Filings").
(b) Each Stockholder acknowledges that representatives of Parent have
responded to all questions of such Stockholder relating to the SEC Filings.
(c) Each Stockholder has relied upon consultations with its legal,
financial and other advisers with respect to this transaction, and the nature of
the investment together with the additional information concerning Parent set
forth in the information provided in Section 3.31(a) above.
(d) The representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the issuance by Parent of the
Parent Common Stock.
SECTION 3.32 Authority. This Agreement has been duly and validly executed
and delivered by the Stockholders and, assuming this Agreement constitutes valid
and binding obligations of Parent, Newco and the Company, will constitute a
valid and binding obligation of the Stockholders enforceable against the
Stockholders in accordance with its terms, except to the extent that such
enforcement may be subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefore may be brought. Each of the Stockholders has the necessary legal
capacity to enter into and perform this Agreement and the other agreements
contemplated hereby.
SECTION 3.33 Agreements, Judgments and Decrees Affecting Stockholders. Each
of the Stockholders represents and warrants that he is not subject to any
agreement, judgment or decree adversely affecting his ability to satisfy his
obligations hereunder.
Except as set forth in this Article III, neither of the Company nor the
Stockholders make any representation or warranty to Parent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND NEWCO
The representations and warranties set forth below in Sections 4.1 through
4.5 and in Section 4.7 are made to the Company and the Stockholders by Parent
and Newco and references in such Sections to Parent shall also be deemed to be
references to Newco unless the context indicates otherwise. The representations
and warranties set forth in Section 4.6 are made to the Company and the
Stockholders by Newco.
SECTION 4.1. Corporate Organization. Parent is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, with all requisite power and authority
(corporate and other) to own its properties and assets and to conduct its
business as now conducted.
SECTION 4.2. Corporate Authority. As of the Closing Date, Parent will have
the corporate power to enter into this Agreement and to carry out its respective
obligations hereunder and thereunder. As of the Closing Date, the execution and
delivery of this Agreement and the performance of Parent's obligations
hereunder, will have been duly authorized by the Board of Directors of Parent,
and no other corporate proceedings on the part of Parent will be necessary to
authorize such execution, delivery and performance. This Agreement has been duly
executed by Parent and, as of the Closing Date, will constitute valid and
legally binding obligations of Parent, enforceable against Parent in accordance
with the terms hereof and thereof, except to the extent that such enforcement
may be subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally,
and the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefore may be brought.
<PAGE>
SECTION 4.3 No Violation. Neither the execution, delivery nor the
performance by Parent of this Agreement violates or will violate any provision
of law, of any order, judgment or decree of any court or other governmental or
regulatory authority, or of the charter documents or by-laws of Parent, nor
violates or will result in a breach of or constitute (with due notice or lapse
of time or both) a default under any contract, lease, loan agreement, mortgage,
security agreement, trust indenture or other agreement or instrument to which
Parent is a party or by which it is bound or to which any of its properties or
assets is subject, nor will result in the creation or imposition of any lien,
charge or encumbrance of any kind whatsoever upon any of the properties or
assets of Parent.
SECTION 4.4. Investment Intent. The Company Common Stock will be acquired
hereunder solely for the account of Parent and its specified designees, for
investment, and not with a view to the resale or distribution thereof, subject
to the right of Parent and any such designees to sell, assign, transfer or
distribute any or all of the Company Common Stock to any corporation which is an
affiliate of Parent, as defined in Rule 405 promulgated by the SEC.
SECTION 4.5. Consents and Approvals. Other than the filing of the
Certificate of Merger pursuant to the Act and requirements of federal and state
securities laws, no filing or registration with, no notice to and no permit,
authorization, consent or approval of any third party or any public or
governmental body or authority is necessary for the consummation by Parent or
Newco of the transactions contemplated by this Agreement.
SECTION 4.6. Capitalization of Newco. The authorized capital stock of Newco
consists of 1,000 shares of common stock, $.001 par value, of which 1,000 shares
are issued and outstanding. All of the Newco common stock has been duly
authorized and validly issued, and is fully paid and non-assessable. There are
no outstanding options, warrants, agreements, conversion rights, preemptive
rights, or other rights to subscribe for, purchase or otherwise acquire any of
Newco's common stock.
SECTION 4.7. Accuracy of Information. None of the representations,
warranties or statements contained in this Agreement, in the exhibits hereto, in
the SEC Filings or in any other agreement, instrument or document executed or
delivered by or on behalf of Parent in connection with the transactions
contemplated by this Agreement contains any untrue statement of a material fact
or omits to state any material fact necessary in order to make any of such
representations, warranties or statements not misleading.
Except as set forth in this Article IV, neither Parent nor Newco make any
representation or warranty to the Company or the Stockholders.
ARTICLE V
ADDITIONAL COVENANTS
SECTION 5.1. Indemnification As Exclusive Remedy.
(a) The Stockholders and the Company agree, to indemnify and hold Parent
and its affiliates, and its officers, directors and agents harmless from
damages, losses or expenses suffered or paid, directly or indirectly, as a
result of any and all claims, demands, suits, causes of action, proceedings,
judgments and liabilities, including reasonable counsel fees incurred in
litigation or otherwise, assessed, incurred or sustained by or against any of
them with respect to or arising out of (i) the failure of any representation or
warranty made by the Stockholders or the Company in this Agreement or in any
Schedule delivered pursuant hereto to be true and correct in all material
respects as of the date of this Agreement and as of the Closing Date ("Company
Representation Breach"), or (ii) the breach by or nonperformance of the Company
of any of the covenants contained in Sections 5.3, 5.4, 5.5, 5.6, 5.9, 5.10 and
5.11 ("Company Covenant Breach" and collectively with a Company Representation
Breach a "Company Breach"); provided that the indemnification covenant contained
in this Section will not require the Stockholders or the Company to indemnify in
connection with consequential damages sustained by the parties eligible for
indemnification hereunder.
(b) Parent agrees to indemnify and hold the Stockholders and their
respective heirs and assigns, and the Company and its affiliates and its
officers, directors and agents harmless from damages, losses or expenses
suffered or paid, directly or indirectly, as a result of any and all claims,
demands, suits, causes of action, proceedings, judgments and liabilities,
including reasonable counsel fees incurred in litigation or otherwise, assessed,
incurred or sustained by or against any of them with respect to or arising out
of (i) the failure of any representation or warranty made by Parent in this
Agreement to be true and correct in all material respects as of the date of this
<PAGE>
Agreement and as of the Closing Date ("Parent Representation Breach"), or (ii)
the breach by or nonperformance of Parent of any of the covenants contained in
Section 5.5 ("Parent Covenant Breach" and collectively with a Parent
Representation Breach a "Parent Breach"); provided that the indemnification
covenant contained in this Section will not require Parent to indemnify in
connection with consequential damages sustained by the parties eligible for
indemnification hereunder.
(c) The party indemnified under Section 5.1 or 5.2 (the "Indemnified
Party") shall notify in writing the indemnifying party (the "Indemnifying
Party") within (i) 60 days after a claim is presented to the Indemnified Party
or the Indemnified Party becomes aware of substantial facts that would
reasonably appear to the Indemnified Party to be likely to give rise to a claim
for indemnity under Section 5.1 or 5.2, or (ii) five days if the Indemnified
Party receives formal notice of the filling of a suit, petition or claim or the
scheduling of a hearing related to a matter which may give rise to claim for
indemnity under Section 5.1 or 5.2. The Indemnifying Party shall promptly
defend, settle, compromise or litigate such claim in good faith. If the
Indemnifying Party does not promptly defend, settle, compromise or litigate such
claim in good faith, the Indemnified Party may do so without the Indemnifying
Party's participation, in which case the Indemnifying Party may settle or
compromise such claim without the Indemnifying Party's consent. If the
Indemnified Party fails to notify the Indemnifying Party of claim in accordance
with the terms of this Section, and the Indemnifying Party is thereby materially
prejudiced by such failure of notice in its defense of the claim, the
Indemnifying Party's obligation to indemnify under Section 5.1 or 5.2 shall be
extinguished with respect to such claim to the extent that the Indemnifying
Party has been prejudiced by the failure to give such notice.
(d) The Indemnified Party shall not be entitled to indemnification for any
claim until the aggregate amount of claims under Section 5.1 exceeds $25,000.00
(the "Threshold Amount"), and then the Indemnified Party may only recover the
amount in excess of the Threshold Amount. Prior to seeking indemnification under
Section 5.1 the parties must first utilize proceeds available from relevant
insurance policies of the Indemnified Party or in the case of claims related to
professional liability, the insurance policies maintained by the Stockholders or
Northern New Jersey Eye Institute, P.A. (the "Physician Group"). In addition,
the Indemnifying Party's obligation under this Section 5.1 shall not exceed
$1,296,316.00.
(e) Notwithstanding the foregoing, Parent or the Surviving Corporation may
claim a Company Breach and may seek indemnification hereunder, without regard to
the Threshold Amount, if (i) Parent or the Surviving Corporation incurs any
loss, cost or expense related to the matters set forth on Schedule 3.17; or (ii)
the Stockholder or the Company breach Section 5.6.
(f) The obligations under this Section 5.1 shall survive the Closing for a
period of two years. The rights and remedies provided under Section 5.1 shall be
exclusive of any other rights and remedies to which any of the Indemnified
Parties may be entitled under this Agreement or otherwise at law or in equity in
connection with a Company Breach or Parent Breach, as applicable.
SECTION 5.2. Indemnification As Nonexclusive Remedy.
(a) The Stockholders and the Company agree, to indemnify and hold Parent
and its affiliates, and its officers, directors and agents harmless from
damages, losses or expenses suffered or paid, directly or indirectly, as a
result of any and all claims, demands, suits, causes of action, proceedings,
judgments and liabilities, including reasonable counsel fees incurred in
litigation or otherwise, assessed, incurred or sustained by or against any of
them with respect to or arising out of the breach by or nonperformance of the
Company of any of the covenants contained in Sections 5.7 and 5.14 ("Company
Nonexclusive Breach"); provided that the indemnification covenant contained in
this Section will not require the Stockholders or the Company to indemnify in
connection with consequential damages sustained by the parties eligible for
indemnification hereunder.
<PAGE>
(b) Parent agrees to indemnify and hold the Stockholders and their
respective heirs and assigns, and the Company and its affiliates and its
officers, directors and agents harmless from damages, losses or expenses
suffered or paid, directly or indirectly, as a result of any and all claims,
demands, suits, causes of action, proceedings, judgments and liabilities,
including reasonable counsel fees incurred in litigation or otherwise, assessed,
incurred or sustained by or against any of them with respect to or arising out
of the breach by or nonperformance of Parent of any of the covenants contained
in Sections 5.8, 5.12, 5.13 or 5.15 ("Parent Nonexclusive Breach"); provided
that the indemnification covenant contained in this Section will not require
Parent to indemnify in connection with consequential damages sustained by the
parties eligible for indemnification hereunder.
(c) The claims of the Indemnified Party under Section 5.2 shall not be
subject to the Threshold Amount. Notwithstanding anything herein to the
contrary, Parent may seek indemnification hereunder for all costs Parent may
incur in connection with remedying violations regarding the Plan (as defined
herein), including, without limitation, contributions, excise taxes, penalties
and interest on any excise taxes and penalties. Prior to seeking indemnification
hereunder the parties must first utilize proceeds available from relevant
insurance policies of the Indemnified Party.
(d) The obligations of under this Section 5.2 shall survive the Closing.
The rights and remedies provided under Section 5.2 shall be in addition to any
other rights and remedies to which any of the Indemnified Parties may be
entitled under this Agreement or otherwise at law or in equity in connection
with a Company Nonexclusive Breach or Parent Nonexclusive Breach, as applicable.
SECTION 5.3. Consents and Approvals. Stockholders and Company (i) shall
obtain all necessary consents, waivers, authorizations and approvals of all
governmental and regulatory authorities, domestic and foreign, and of all other
persons, firms or corporations required in connection with the execution,
delivery and performance by them of this Agreement, and (ii) shall diligently
assist and cooperate with Parent and Newco in preparing and filing all documents
required to be submitted by Parent or Newco to any governmental or regulatory
authority, domestic or foreign, in connection with such transactions (which
assistance and cooperation shall include, without limitation, timely furnishing
to Parent and Newco all information concerning Stockholders or the Company which
in the opinion of counsel to Parent is required to be included in such
documents), and in obtaining any governmental consents, waivers, authorizations
or approvals which may be required to be obtained by Parent or Newco in
connection with such transactions.
SECTION 5.4. Further Assurances. Upon the request of Parent at any time
after the Closing Date, Stockholders will forthwith execute and deliver such
further instruments of assignment, transfer, conveyance, endorsement, direction
or authorization and other documents as Parent or its counsel may request in
order to perfect title of Parent and its successors and assigns to the Company
Common Stock or otherwise to effectuate the purposes of this Agreement.
SECTION 5.5. Required Actions. Subject to the terms and conditions of this
Agreement, each of the parties hereto will use diligent, good faith efforts to
take, or cause to be taken, and to do, or cause to be done, all things
necessary, proper or advisable consistent with applicable law to cause the
fulfillment on or prior to the Closing Date of all of the conditions to its
obligations hereunder and to consummate and make effective in a timely manner
the transactions contemplated hereby.
SECTION 5.6. Conduct of Business of the Company. After the execution of
this Agreement but prior to the Closing Date, the Stockholders shall cause the
Company to conduct its operations only according to its ordinary and usual
course of business and to use its best efforts to preserve intact its business
organizations, keep available the services of its officers and employees and
maintain satisfactory relationships with the Professionals, payors and others
having business relationships with the Company. Notwithstanding the immediately
preceding sentence, pending the Closing Date and except as may be first approved
by Parent or as is otherwise permitted or required by this Agreement, the
Stockholders will cause (i) the Company's Articles of Incorporation and By-Laws
to be maintained in their form on the date of this Agreement, (ii) the
compensation payable or to become payable by the Company to any officer,
<PAGE>
employee or agent paid $25,000 per year or more on the Balance Sheet Date to be
maintained at their levels on the date of this Agreement, except in the ordinary
course of business, (iii) the Company to refrain from making any bonus, pension,
retirement or insurance payment or arrangement to or with any such persons
except those that may have already been accrued, except in the ordinary course
of business, (iv) the Company to refrain from entering into any contract or
commitment except contracts in the ordinary course of business, (v) the Company
to refrain from making any change affecting any bank, safe deposit or power of
attorney arrangements of the Company, and (vi) the Company to refrain from
making any distributions to stockholders, other than the payment of salaries and
bonuses, distributions of profits and repayment of debt. After the execution
hereof but prior to the Closing Date, the Stockholders shall cause the Company
to confer on a reasonable basis with one or more designated representatives of
Parent to report material operational matters outside of the normal course of
business and to report the general status of ongoing operations. The
Stockholders shall cause the Company to notify Parent of any change in the
normal course of its business or in the operation of its properties and of any
governmental complaints, investigations or hearings (or communications
indicating that the same may be contemplated), adjudicatory proceedings,
meetings or submissions involving any material property of the Company, and to
keep Parent fully informed of such events and permit its representatives prompt
access to all materials prepared in connection therewith.
SECTION 5.7. Restrictive Covenant. Each Stockholder individually agrees
that during the term of such Stockholder's employment or independent contractor
relationship with the Physician Group and for a two (2) year period after its
termination for any reason, such Stockholders shall not (i) directly or
indirectly, induce any patient of the Practice (as defined in the Services
Agreement (as defined herein)), or any organization, entity or individual that
has an employment or other contractual relationship with the Practice, to
terminate that relationship, or (ii) directly or indirectly, establish, operate
or provide Medical Services (as defined in the Services Agreement), or establish
any entity to operate or provide Medical Services, or contract with any
individual or entity to operate or provide Medical Services anywhere within
seven and one half (72) miles of the South Orange Office of the Practice (or if
the principal office is relocated, such other location) and such other office(s)
of the Practice at which the Professional Employee (as defined in the Services
Agreement) practices (collectively, the "Restrictive Covenant"). The
Stockholders may be released from the Restrictive Covenant by paying the
liquidated damages described in the Services Agreement. The parties acknowledge
and agree that the Stockholders' activities in connection with (i) Accountable
Health Plan, Inc., a New Jersey corporation ("AHP"), will not violate the
restrictions set forth in this Section 5.7, provided that AHP's activities must
be limited to providing services (a) pursuant to that certain agreement, dated
March 17, 1995, between AHP and MasterCare, as amended or renewed, and (b) to
ambulatory surgery centers in New Jersey which are not providing ophthalmic or
optometric services, and (ii) Eye Care Resources, Inc., a New Jersey corporation
("ECR"), provided that ECR's activities and services must be outside of the
United States and must be approved by the Chief Executive Officer of Parent.
SECTION 5.8. Registration Rights.
(a) The Stockholders may at any time beginning immediately after the
Valuation Date and ending six (6) months following the Valuation Date demand
Parent to register the Additional Stock under the Securities Act. The
Stockholders, jointly or individually, must exercise the demand registration
rights granted pursuant to this Section 5.8 during such six (6) month period or
such rights shall expire and such rights may only be exercised once during such
six (6) month period. If one Stockholder exercises his demand registration
rights pursuant to this Section 5.8 it will bind both Stockholders. Upon the
Stockholders exercise of their demand registration rights pursuant to this
Section 5.8 Parent shall use reasonable efforts to (i) file the required
registration statement, (ii) have such registration statement become effective,
and (iii) keep the registration statement effective for a four (4) month period.
<PAGE>
(b) In addition, if at any time or from time to time Parent proposes or is
required to file with the SEC a registration statement under the Securities Act
relating to any shares of Parent Common Stock (other than a registration
statement on Form S-8 or Form S-4 or any successor forms thereto, or any
registration form that does not permit the inclusion therein of the Additional
Stock issued pursuant to this Agreement) (the "Registration Statement"), Parent
will each such time give prompt written notice of its intention to do so to all
holders of Additional Stock issued pursuant to this Agreement then outstanding.
Upon the written request of any such holders (collectively, the "Requesting
Holders") given within 10 days after the delivery or mailing of such notice from
Parent, Parent will use all commercially reasonable efforts to cause all
Additional Stock issued pursuant to this Agreement then outstanding which such
Requesting Holders shall have requested to be included (subject to the
limitations set forth in Sections 5.8(c) and 5.8(d) below) in such Registration
Statement ("Requested Shares") so as to permit the public sale or other
disposition of such Requested Shares.
(c) If the Registration Statement of which Parent gives notice relates to
an underwritten public offering, Parent shall so advise the holders as a part of
the written notice given pursuant to Section 5.8(b) above. In such event, the
right of any Requesting Holder to registration shall be conditioned upon such
Requesting Holder's execution of the underwriting agreement agreed to by Parent
and the managing underwriters selected by Parent for such underwritten offering.
(d) Notwithstanding any other provisions of this Section 5.8, if the
managing underwriters advise Parent that marketing factors require a limit on
the number of shares to be underwritten, Parent may (subject to the limitations
set forth below) exclude all Requested Shares from, or limit the number of
Requested Shares to be included in, the Registration Statement and underwriting.
In such event, Parent shall so advise all Requesting Holders, and the number of
Requested Shares and other shares ("Other Shares") requested to be included in
such Registration Statement and underwriting by other persons or entities that
are then stockholders of Parent ("Other Holders"), after providing for all
shares that Parent proposes to offer and sell for its own account, shall be
allocated among the Requesting Holders and the Other Holders pro rata on the
basis of (i) the number of Requested Shares then held by such Requesting Holders
and (ii) the aggregate number of Other Shares then held by the Other Holders. If
any Requested Shares or Other Shares are excluded or withdrawn from such
Registration Statement and underwriting for any reason other than pursuant to
the previous sentence, then Parent shall offer to Requesting Holders and Other
Holders the right to include additional Requested Shares or Other Shares, as
applicable, in the Registration Statement and underwriting in an amount equal to
the number of shares so excluded or withdrawn, with such additional shares to be
allocated among the Requesting Holders and Other Holders requesting additional
inclusion, on the same basis as in the preceding sentence.
(e) In the case of each Registration Statement effected by Parent pursuant
to the terms described herein, Parent will keep each Requesting Holder advised
in writing as to the initial filing of each Registration Statement and as to the
effectiveness thereof. Parent will use reasonable efforts to: (i) furnish such
number of prospectuses and other documents incident thereto, including any
amendment of or supplement to the prospectus, as a Requesting Holder from time
to time may reasonably request; and (ii) cause all such Requested Shares that
are registered under a Registration Statement to be listed on each securities
exchange or national market system on which similar shares issued by Parent are
then listed.
(f) Each Stockholder shall from time to time promptly supply to Parent in
writing any information relating to such Stockholder, his holdings of Parent
Common Stock, and his intended plan of distribution as Parent may reasonably
request in order for it to comply with the rules of the Securities and Exchange
Commission relating to such registration statement.
(g) All reasonable expenses incurred in connection with the registration
effected pursuant to this Section 5.8, including without limitation all
registration, filing, and qualification fees (including blue sky fees), printing
expenses, escrow fees, fees and disbursements of counsel for Parent, expenses of
special audits incidental to or required by such registration, the premiums for
insurance, if any, and all discounts and brokers' and underwriters' fees and
commissions shall be allocated among Parent, Stockholders and any other
<PAGE>
stockholders of Parent registering shares at the same time, if applicable, in
proportion to the number of shares of stock to be registered by each such party
as compared to the total number of shares of stock to be registered by all such
parties in such registration.
SECTION 5.9. Full Access to the Company. Upon reasonable notice, during
ordinary business hours, the Company shall afford to Parent and its directors,
officers, employees, counsel, accountants and other authorized representatives
and agents free and full access to the management, facilities, properties, books
and records of the Company in order that Parent may have full opportunity to
make such investigations of the Company as Parent may desire.
SECTION 5.10. Taxes. Promptly after the Closing the Stockholders shall
order from the state of New Jersey a Certificate of Corporation Franchise Tax
Lien, and shall provide Parent with a copy of such Certificate upon the
Company's receipt thereof.
SECTION 5.11. Reorganization. Immediately prior to the Closing, the Company
shall take all actions necessary to reorganize as a general business corporation
under the laws of the state of New Jersey.
SECTION 5.12. Use of Name. After the Effective Time, the Surviving
Corporation will only use the name "Northern New Jersey Eye Institute" in
connection with winding up the affairs of the Company and will in no event use
such name in its on-going business operations.
SECTION 5.13. Insurance. So long as Newco has any indemnification
obligations under Section 5.1 or 5.2 hereof, Newco shall and Parent shall cause
Newco to maintain in effect insurance coverage with substantially similar
coverage limits as are contained in the policies described as items 1 - 3 on
Schedule 3.21. So long the Stockholders have any indemnification obligations
under Section 5.1 or 5.2 hereof, the Stockholders shall or the Stockholders
shall cause the Physician Group to maintain in effect insurance coverage with
substantially similar coverage limits as are contained in the policies described
as item 4 on Schedule 3.21.
SECTION 5.14. The Company's 401(k) Plan. Prior to the Closing, the Company
shall (i) have made all outstanding contributions to the Company's 401(k) plan
(the "Plan") related to the relevant pay periods prior to the Closing Date, (ii)
cease making contributions to the Plan and cease benefit accruals to the Plan as
of April 2, 1996, (iii) not admit new participants to the Plan after April 2,
1996, (iv) not accrue further eligibility service for any participants in the
Plan after April 2, 1996, (v) fully vest all participants in the Plan, and (vi)
terminate the Plan and distribute all Plan assets prior to the Closing Date.
SECTION 5.15. Accounts Receivable. If the Closing Date occurs on June 17,
1996, as a result of the Merger, the Surviving Corporation will own all accounts
receivable which are on the Company's books and records as of the Effective Time
(the "Accounts Receivable"). If the Closing Date occurs prior to June 17, 1996,
the parties shall negotiate in good faith as to what amount of Accounts
Receivable which are collected by the Surviving Corporation after the Closing
Date shall be paid to each of the Stockholders.
SECTION 5.16. Medical Records. The patient medical records which have been
created by the Stockholders and the other physicians employed by the Company
will not be transferred to Newco and will be maintained by the Physician Group
after the Effective Time.
<PAGE>
ARTICLE VI
CLOSING CONDITIONS
SECTION 6.1. Conditions to Each Party's Obligations under this
AgreementConditions to Each Party's Obligations under this Agreement. The
respective obligations of each party under this Agreement shall be subject to
the fulfillment at or prior to the Effective Time of the following conditions:
(a) Any and all permits, consents, waivers, clearances, approvals and
authorizations of all third parties and governmental bodies which are necessary
or advisable in connection with the consummation of the Merger and the other
transactions contemplated hereby shall have been obtained.
(b) No injunction, restraining order or other ruling or order issued by
any court of competent jurisdiction or governmental authority or other legal
restraint or prohibition preventing the consummation of the Merger shall be in
effect.
SECTION 6.2. Parent's Conditions to Close. The obligations of Parent under
this Agreement shall be further subject to the satisfaction, at or prior to the
Effective Time, of the following conditions:
(a) Each of the covenants, obligations and conditions of the Company and
the Stockholders required to be performed or complied with or satisfied at or
prior to the Closing pursuant to this Agreement shall have been duly performed,
complied with and satisfied, and Parent shall have received on the Closing Date
a certificate to that effect signed by an officer of the Company.
(b) All (i) action required by law or otherwise to be taken by the Board
of Directors of the Company and Stockholders to authorize the execution,
delivery and performance of this Agreement and the transactions contemplated
hereby and thereby shall have been duly and validly taken, and no Stockholders
shall have asserted dissenters' rights under the Act, (ii) licenses, permits,
consents, waivers, approvals and similar authorizations necessary for the lawful
conduct of the business of the Surviving Corporation following the Closing Date
shall have been obtained, (iii) licenses, permits, consents, waivers, approvals
and similar authorizations of or from any governmental authorities or other
persons necessary or advisable in connection with the consummation of the Merger
and the other transactions contemplated by this Agreement shall have been
delivered, made or obtained, and Parent shall have received copies thereof in
form and substance satisfactory to Parent, and (iv) all consents and assignments
necessary to transfer to the Surviving Corporation the leases of real property
utilized by the Company prior to the Closing.
(c) The Company shall have delivered to Parent an opinion of Nixon,
Hargrave, Devans & Doyle, LLP, dated as of the Effective Time, in form and
substance reasonably satisfactory to the Company.
(d) Parent shall have been furnished with evidence reasonably satisfactory
to it of the consent or approval of each person whose consent or approval shall
be required in order to permit the succession by the Surviving Corporation
pursuant to the Merger to any obligation, right or interest of the Company under
any loan or credit agreement, note, bond, mortgage, indenture, lease or other
agreement or instrument except those for which the failure to obtain such
consents and approvals would not, in the reasonable opinion of Parent,
individually or in the aggregate, have a Material Adverse Effect on the Company
or on the Surviving Corporation.
(e) Parent's Board of Directors shall have approved the Merger and the
other transactions contemplated by this Agreement.
(f) Newco shall have received an executed original of (i) the Services
Agreement between Newco and Physician Group (the "Services Agreement"), (ii) an
Agreement and Plan of Merger by and among Parent, Newco, Cataract Hotline, Inc.,
a New Jersey corporation, and Michael R. Norris, (iii) an Asset Purchase
Agreement by and between Parent and Norris (the "Asset Purchase Agreement"),
(iv) Employment Agreement between Parent and Norris, (v) Employment Agreement
between Parent and Richard W. Jones, (vi) Employment Agreement between Physician
Group and Norris, (vii) Employment Agreement between Physician Group and Spier,
(viii) Amendment and Assignment of Employment Agreement of Charles J. Crane,
M.D. to Physician Group, and (ix) Management Agreement between Physician Group
and Norris; all in a form reasonably acceptable to Parent.
<PAGE>
(g) The Stockholders shall have delivered to Parent the written
resignations, effective as of the Closing Date, of all directors and officers of
the Company. The Stockholders shall have delivered to Parent written
terminations related to the Company's employment agreements with each of Norris,
Spier and Richard W. Jones.
(h) The Stockholders shall have delivered to Parent (i) copies of the
Company's charter, including all amendments thereto, certified by the
appropriate official of its jurisdiction of incorporation; and (ii) certificates
from the appropriate official of the respective jurisdictions of incorporation
to the effect the Company is in good standing and listing all charter documents
of the Company and such subsidiaries on file.
(i) The representations and warranties of the Stockholders and the Company
contained in this Agreement or in any Schedule delivered pursuant hereto shall
be true and correct on and as of the Closing Date with the same effect as though
such representations and warranties had been made on and as of such date, and
the Stockholders shall have delivered to Parent on the Closing Date a
certificate, dated the Closing Date, to such effect.
(j) No action or proceedings shall have been instituted or, to the best
knowledge, information and belief of the Stockholders or the Company, shall have
been threatened before a court or other government body or by any public
authority to restrain or prohibit any of the transactions contemplated hereby,
and the Stockholders shall have delivered to Parent on the Closing Date a
certificate, dated the Closing Date, to such effect.
(k) All indebtedness of the Company, other than the following, shall have
been repaid in full or otherwise forgiven or settled in a manner satisfactory to
Parent: (i) the account payable to Medic Computer Systems Inc. ("Medic") which
consists of a $82,600.00 obligation which will be partially satisfied by the
$10,000.00 deposit previously made by the Company, (ii) accounts payable arising
in the ordinary course of the Company's business, (iii) the Company's payroll
obligations for the period ending as of the Closing Date, and (iv) the Company's
line of credit from Norris which shall be restructured in accordance with the
terms of an agreement acceptable to Parent. Parent shall received evidence, in a
form reasonably acceptable to Parent, that the following obligations of the
Company have been satisfied: (i) item 3 on Schedule 3.13, and (ii) amounts owed
to Medic for prior services. In addition, Norris shall have agreed to indemnify
and hold Parent harmless from any claim or expense associated with item 4 on
Schedule 3.17.
(l) Parent and the Company shall have received an appraisal of the Company
in a form reasonably satisfactory to such parties.
(m) Parent shall have received evidence, in a form reasonably satisfactory
to Parent, that the Company has taken the actions described in Section 5.14.
(n) Parent shall have received a written loan commitment in form and
substance satisfactory to Parent for a revolving asset based lending facility
("ABLF") and from a lender satisfactory to Parent (the "Lender"), and Parent and
the Lender shall have executed the necessary documents and satisfied all
conditions precedent with respect to the establishment of the ABLF such that
financing is immediately available to be drawn upon by Parent thereunder to fund
Parent's purchase of the Assets (as such term is defined in the Asset Purchase
Agreement), including its obligations under the Promissory Note executed in
connection with the Asset Purchase Agreement. Parent agrees to use its best
efforts to make such applications and proceed diligently in securing the ABLF.
SECTION 6.3. The Company's Conditions to Close. The obligations of the
Company under this Agreement shall be further subject to the satisfaction, at or
prior to the Effective Time, of the following conditions:
<PAGE>
(a) Each of the covenants, obligations and conditions of Parent and Newco
required to be performed or complied with or satisfied at or prior to the
Closing pursuant to this Agreement shall have been duly performed, complied with
and satisfied, and the Company shall have received on the Closing Date a
certificate to that effect signed by an officer of Parent.
(b) The representations and warranties of Parent and Newco contained in
this Agreement or in any Schedule delivered pursuant hereto shall be true and
correct on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date, and Parent
shall have delivered to the Company on the Closing Date a certificate, dated the
Closing Date, to such effect.
(c) The Company shall have received an executed original of (i) the
Services Agreement, (ii) an Agreement and Plan of Merger by and among Parent,
Newco, Cataract Hotline, Inc., a New Jersey corporation, and Michael R. Norris,
(iii) the Asset Purchase Agreement, (iv) Employment Agreement between Parent and
Norris, (v) Employment Agreement between Parent and Richard W. Jones, (vi)
Employment Agreement between Physician Group and Norris, (vii) Employment
Agreement between Physician Group and Spier, (viii) Amendment and Assignment of
Employment Agreement of Charles J. Crane, M.D. to Physician Group, and (ix)
Management Agreement between Physician Group and Norris; all in a form
reasonably acceptable to the Company.
(d) No action or proceedings shall have been instituted or, to the best
knowledge, information and belief of Parent, shall have been threatened before a
court or other government body or by any public authority to restrain or
prohibit any of the transactions contemplated hereby, and Parent shall have
delivered to the Company on the Closing Date a certificate, dated the Closing
Date, to such effect.
(e) Parent shall have delivered to the Company and the Stockholders an
opinion of Sonnenschein Nath & Rosenthal, dated as of the Effective Time, in
form and substance reasonably satisfactory to the Company.
(f) Parent and the Company shall have received an appraisal of the Company
in a form reasonably satisfactory to such parties.
(g) Norris and Spier shall have executed and delivered a purchase
agreement related to their respective ownership interest in the Company.
ARTICLE VII
CLOSING
SECTION 7.1. Closing. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place on the earlier of (i) June 17,
1996 or (ii) if the conditions set forth in Section 6.2(n) have been satisfied,
on such earlier date as Parent and the Stockholders shall mutually agree, at the
offices of Sonnenschein, Nath & Rosenthal, 1221 Avenue of the Americas, 24th
Floor, New York, New York 10020 or at such other place as the parties shall
agree, and shall be effective as of the Effective Time (the "Closing Date"). At
the Closing:
<PAGE>
(a) the Company shall deliver to Parent the following:
(i) all certificates representing the Company Common Stock; and
(ii) all other previously undelivered documents required to be
delivered by the Company to Parent at or prior to the Closing
pursuant to the terms of this Agreement.
(b) Parent shall deliver or cause to be delivered to the Company or the
Stockholders the following:
(i) all certificates representing the Parent Common Stock; and
(ii) all other previously undelivered documents required to be
delivered by Parent to the Company or the Stockholders at or prior to the
Closing pursuant to the terms of this Agreement.
ARTICLE VIII
This Section Intentionally Left Blank
ARTICLE IX
TERMINATION AND ABANDONMENT
SECTION 9.1. Termination. This Agreement may be terminated and the
Merger contemplated hereby may be abandoned at any time prior to the Effective
Time:
(a) by mutual consent of the Company and Parent;
(b) by either the Company or Parent;
(i) if there shall have been a material breach of any
representation, warranty, covenant or agreement on the part of Parent on the one
hand, or the Company on the other, set forth in this Agreement which breach
shall not have been cured, in the case of a representation or warranty, prior to
the date on which the conditions other than the accuracy of the representation
and warranty in question would be satisfied for the Closing or, in the case of a
covenant or agreement, within five (5) business days following receipt by the
breaching party of notice of such breach;
(ii) if a court of competent jurisdiction or governmental,
regulatory or administrative agency or commission shall have issued an order,
decree or ruling or taken any other action (which order, decree or ruling the
parties hereto shall use their best efforts to lift), in each case permanently
restraining, enjoining or otherwise prohibiting the transactions contemplated by
this Agreement, and such order, decree, ruling or other action shall have become
final and nonappealable; or
(iii) if the Effective Time shall not have occurred on or before
June 17, 1996; provided, however, that the right to terminate this Agreement
shall not be available to any party whose material breach of this Agreement has
been the cause of, or resulted in, the failure of the Merger to occur on or
before such date.
SECTION 9.2. Procedure and Effect of Termination. In the event of
termination and abandonment of the Merger pursuant to Section 9.1 hereof,
written notice thereof shall forthwith be given to the other parties to this
Agreement and this Agreement shall terminate and the Merger shall be abandoned,
without further action by any of the parties hereto. If this Agreement is
terminated as provided herein;
(a) upon request therefor, each party will redeliver all documents, work
papers and other material of any other party relating to the transactions
contemplated hereby, whether obtained before or after the execution hereof, to
the party furnishing the same;
(b) no party hereto shall have any liability or further obligation to any
other party to this Agreement resulting from such termination except (i) that
the provisions of this Section 9.2 and Section 10.5, shall remain in full force
and effect, and (ii) no party waives any claim or right against a breaching
party to the extent that such termination results from the breach by a party
hereto of any of its representations, warranties, covenants or agreements set
forth in this Agreement.
<PAGE>
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Survival of Provisions. The representations, warranties,
covenants and agreements related to a Company Breach and a Parent Breach (except
covenants and agreements which are expressly required to be performed and are
performed in full on or prior to the Closing Date) shall survive the Closing
Date and the consummation of the transactions contemplated by this Agreement for
a period of two years. The representations, warranties, covenants and agreements
related to a Company Nonexclusive Breach and a Parent Nonexclusive Breach shall
survive the Closing Date and the consummation of the transactions contemplated
by this Agreement. In the event of a breach of any of such representations and
warranties, the party to whom such representations and warranties have been made
shall have all rights and remedies for such breach available to him under the
provisions of Sections 5.1 and 5.2 of this Agreement, regardless of any
disclosure to, or investigation made by or on behalf of such party on or before
the Closing Date.
SECTION 10.2. Publicity. So long as this Agreement shall be in effect,
none of the Company, either Stockholder nor Parent shall issue or cause the
publication of any press release or other announcement with respect to this
Agreement or the transactions contemplated hereby without the consent of the
other party, which consent shall not be withheld where such release or
announcement is required by applicable law.
SECTION 10.3. Successors and Assigns. This Agreement shall inure to the
benefit of, and be binding upon, the parties hereto and their respective
successors and assigns; provided, however, that neither party shall assign or
delegate this Agreement or any of the rights or obligations created hereunder
without the prior written consent of the other party. Notwithstanding the
foregoing, Parent shall have the unrestricted right to assign this Agreement and
all or any part of his rights hereunder and to delegate all or any part of its
obligations hereunder to any affiliate of Parent, but in such event Parent shall
remain fully liable for the performance of all of such obligations in the manner
prescribed in this Agreement. Nothing in this Agreement shall confer upon any
person, firm or corporation not a party to this Agreement, or the legal
representatives of such person, firm or corporation, any rights or remedies of
any nature or kind whatsoever under or by reason of this Agreement.
SECTION 10.4. Brokers and Finders. Each of parties represents and warrants
to the other that he has not engaged any broker, finder or investment banker in
connection with the transactions contemplated by this Agreement. Each of the
Company and Parent agrees to indemnify and hold harmless the other against any
brokerage fee, commission, finder's fee, or financial advisory fee due to any
person, firm or corporation acting on his behalf in connection with the
transactions contemplated by this Agreement.
SECTION 10.5. Expenses. Except as otherwise expressly provided in this
Agreement, all legal and other fees, costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such fees, costs or expenses.
SECTION 10.6. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been given or
made if in writing and delivered personally or sent by registered or certified
mail (postage prepaid, return receipt requested) to the parties at the following
addresses:
<PAGE>
1. if to the Company, to:
John W. Norris, M.D.
71 South Second Street
South Orange, New Jersey 07070
with a copy to:
Nixon, Hargrave Devans & Doyle, LLP
990 Stewart Avenue
Garden City, New York 11530
Attn: Michael J. Taubin
2. if to Parent, to:
LaserSight Incorporated
12161 Lackland Road
St. Louis, Missouri 63146
Attn: Chief Executive Officer
with a copy to:
Sonnenschein Nath & Rosenthal
One Metropolitan Square
Suite 3000
St. Louis, Missouri 63102
Attn: Alan Bornstein
or to such other persons or at such other addresses as shall be furnished by
either party by like notice to the other, and such notice or communication shall
be deemed to have been given or made as of the date so delivered or mailed.
SECTION 10.7. Entire Agreement. This Agreement, together with the exhibits
hereto, represents the entire agreement and understanding of the parties with
reference to the transactions set forth herein and no representations or
warranties have been made in connection with this Agreement other than those
expressly set forth herein or in the exhibits, certificates and other documents
delivered in accordance herewith. This Agreement supersedes all prior
negotiations, discussions, correspondence, communications, understandings and
agreements between the parties relating to the subject matter of this Agreement
and all prior drafts of this Agreement, all of which are merged into this
Agreement.
SECTION 10.8. Waivers and Amendments. Each of the Company and Parent may
by written notice to the other (a) extend the time for the performance of any of
the obligations or other actions of the other; (b) waive any inaccuracies in the
representations or warranties of the other contained in this Agreement;
(c) waive compliance with any of the covenants of the other contained in this
Agreement; (d) waive performance of any of the obligations of the other created
under this Agreement; or (e) waive fulfillment of any of the conditions to his
own obligations under this Agreement. The waiver by any party hereto of a breach
of any provision of this Agreement shall not operate or be construed as a waiver
of any subsequent breach. This Agreement may be amended, modified or
supplemented only by a written instrument executed by the parties hereto.
SECTION 10.9. Severability. This Agreement shall be deemed severable, and
the invalidity or unenforceability of any term or provision hereof shall not
affect the validity of enforceability of this Agreement or of any other term or
provision hereof.
SECTION 10.10. Article and Section Headings. The Article and Section
headings contained in this Agreement are solely for convenience of reference and
shall not affect the meaning or interpretation of this Agreement or of any term
or provision hereof.
SECTION 10.11. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
<PAGE>
SECTION 10.12. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 10.13. Schedules. Disclosure included on any schedule delivered
pursuant to this Agreement shall be considered to be made for purposes of all
schedules to this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date first written above.
LASERSIGHT INCORPORATED
/s/Michael R. Farris
By:---------------------------
Chief Executive Officer
LSI ACQUISITION, INC.
/s/Michael R. Farris
By:---------------------------
Michael R. Farris
Name:-------------------------
President
Title:------------------------
EYE DIAGNOSTICS & SURGERY, P.A.
/s/John W. Norris
By:---------------------------
John W. Norris
Name:-------------------------
President
Title:------------------------
STOCKHOLDERS
/s/John W. Norris
------------------------------
John W. Norris, M.D.
/s/Bernard Spier
------------------------------
Bernard Spier, M.D.
<PAGE>
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER ("Amendment") is entered
into and is effective as of June 17, 1996, by and among LASERSIGHT
INCORPORATED, a Delaware corporation ("Parent"), LSI ACQUISITION, INC., a New
Jersey corporation ("Newco"), EYE DIAGNOSTICS & SURGERY, P.A., a New Jersey
corporation, d/b/a Northern NJ Eye Institute (the "Company"), JOHN W. NORRIS,
M.D. ("Norris"), and BERNARD SPIER, M.D. ("Spier" and collectively with Norris,
the "Stockholders").
R E C I T A L S
WHEREAS, Parent, Newco, the Company and the Stockholders entered into
an Agreement and Plan of Merger dated as of April 18, 1996 (the "Agreement");
WHEREAS, Parent, Newco, the Company and the Stockholders desire to
amend certain provisions of the Agreement as provided for herein.
NOW, THEREFORE, the parties agree as follows:
1. The first sentence of Section 7.1 shall be deleted and the following
shall be inserted in its place:
The closing of the transactions contemplated by this Agreement (the
"Closing") shall take place on the earlier of (i) July 15, 1996, (ii) if
the conditions set forth in Section 6.2(n) have been satisfied, on such
earlier date as Parent and the Stockholders shall mutually agree, or (iii)
on such other date as Parent and the Stockholders shall mutually agree, at
the offices of Sonnenschein, Nath & Rosenthal, 1221 Avenue of the Americas,
24th Floor, New York, New York 10020, or at such other place as the parties
shall agree, and shall be effective as of the Effective Time (the "Closing
Date").
2. The date "June 17, 1996" referenced in Section 9.1(b)(iii) of the
Agreement shall be deleted and the date "July 15, 1996" shall be inserted in its
place.
3. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall be considered
one and the same amendment.
IN WITNESS WHEREOF, the parties hereto have signed this Amendment as of
the date first written above.
LASERSIGHT INCORPORATED
By:/s/Michael R. Farris
------------------------------------
Chief Executive Officer
LSI ACQUISITION, INC.
By:/s/Michael R. Farris
------------------------------------
Michael R. Farris
Name:-------------------------------
President
Title:------------------------------
EYE DIAGNOSTICS & SURGERY, P.A.
By: /s/John W. Norris
------------------------------------
John W. Norris
Name:-------------------------------
President
Title:------------------------------
STOCKHOLDERS
/s/John W. Norris
------------------------------------
John W. Norris, M.D.
/s/Bernard Spier
------------------------------------
Bernard Spier, M.D.
<PAGE>
SECOND AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER ("Amendment") is
entered into and is effective as of July 3, 1996, by and among LASERSIGHT
INCORPORATED, a Delaware corporation ("Parent"), LSI ACQUISITION, INC., a New
Jersey corporation ("Newco"), EYE DIAGNOSTICS & SURGERY, P.A., a New Jersey
corporation, d/b/a Northern NJ Eye Institute (the "Company"), JOHN W. NORRIS,
M.D. ("Norris"), and BERNARD SPIER, M.D. ("Spier" and collectively with Norris,
the "Stockholders").
R E C I T A L S
WHEREAS, Parent, Newco, the Company and the Stockholders entered into
an Agreement and Plan of Merger dated as of April 18, 1996 (the "Agreement");
WHEREAS, Parent, Newco, the Company and the Stockholders desire to
amend certain provisions of the Agreement as provided for herein.
NOW, THEREFORE, the parties agree as follows:
1. Section 5.15 of the Agreement shall be deleted and the following
shall be inserted in its place:
SECTION 5.15 Accounts Receivable. The Surviving Corporation
will own all accounts receivable related to the Company's operations,
whether or not reflected on the Company's books and records, as of the
Closing Date ("Accounts Receivable"). The Surviving Corporation agrees
that if the collections associated with the Accounts Receivable exceed
$400,000.00, then such excess, not to exceed $40,000.00, shall be
divided equally and paid to each of the Stockholders, provided that if
the collections associated with the Accounts Receivable exceed
$440,000.00, then such excess shall be retained by the Surviving
Corporation, further provided that the amount paid to Norris shall be
used to repay the line of credit described in Section 6.2(k)(iv). The
Surviving Corporation agrees to use diligent efforts in collecting the
Accounts Receivable, provided that the Surviving Corporation's
obligation under this Section 5.15 will cease as of the date 120 days
after the Effective Time.
2. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall be considered
one and the same amendment.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have signed this Amendment as of
the date first written above.
LASERSIGHT INCORPORATED
/s/Michael R. Farris
By:-----------------------------
Chief Executive Officer
LSI ACQUISITION, INC.
/s/Michael R. Farris
By:-----------------------------
Michael R. Farris
Name:---------------------------
President
Title:--------------------------
EYE DIAGNOSTICS & SURGERY, P.A.
/s/John W. Norris
By:-----------------------------
John W. Norris
Name:---------------------------
President
Title:--------------------------
STOCKHOLDERS
/s/John W. Norris
--------------------------------
John W. Norris, M.D.
/s/Bernard Spier
--------------------------------
Bernard Spier, M.D.
<PAGE>
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of April 18, 1996 (the
"Agreement"), by and among LASERSIGHT INCORPORATED, a Delaware corporation
("Parent"), LSI ACQUISITION, INC., a New Jersey corporation ("Newco"), CATARACT
HOTLINE, INC., a New Jersey corporation (the "Company"), and MICHAEL R. NORRIS
(the "Stockholder").
R E C I T A L S
WHEREAS, Parent desires to acquire all of the issued and outstanding
shares of the Company's common stock, no par value per share (the "Company
Common Stock") by means of a merger (the "Merger") of the Company with and into
Newco (with Newco being the surviving corporation), pursuant to which the
Stockholder shall receive shares of stock of Parent;
WHEREAS, for federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization within the meaning of Section 368 (a)
of the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, the Company and Parent each desires to make certain
representations, warranties and agreements in connection with the Merger and
also to prescribe various conditions thereto.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements herein contained, the parties hereto
agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1. The Merger. Upon the terms and subject to the conditions
hereof, and in accordance with the provisions of New Jersey Business Corporation
Act, as amended (the "Act"), the Company shall be merged with and into Newco as
soon as practicable after satisfaction or waiver of the conditions set forth in
Article VI. Following the Merger, the separate existence of the Company shall
cease, and Newco shall continue as the surviving corporation in the Merger (the
"Surviving Corporation"). The Company and Newco are sometimes herein
collectively referred to as the "Constituent Corporations".
SECTION 1.2. Effect of the Merger. The Merger shall have the effects
set forth in the Act. From and after the Effective Time (as defined below), the
Surviving Corporation shall be a wholly-owned subsidiary of Parent.
SECTION 1.3. Articles of Incorporation of the Surviving Corporation. At
the Effective Time and without any further action on the part of the Constituent
Corporations, the Articles of Incorporation of Newco, as in effect immediately
prior to the Effective Time, shall be the Articles of Incorporation of the
Surviving Corporation until duly amended or repealed as provided therein or as
otherwise provided by law.
SECTION 1.4. Bylaws of the Surviving Corporation. At the Effective Time
and without any further action on the part of the Constituent Corporations, the
Bylaws of Newco, as in effect immediately prior to the Effective Time, shall be
the Bylaws of the Surviving Corporation until duly amended or repealed as
provided therein or as otherwise provided by law.
SECTION 1.5. Board of Directors and Officers of the Surviving
Corporation. At the Effective Time and without any further action on the part of
the Constituent Corporations, the directors and the officers of Newco
immediately prior to the Effective Time shall be the directors and initial
officers of the Surviving Corporation, respectively, each of such directors and
officers to hold office until their respective successors are duly elected and
qualified, or their earlier death, resignation or removal.
<PAGE>
SECTION 1.6. Effective Time of the Merger. The Constituent Corporations
will cause a certificate of merger related to the Merger of the Company into
Newco (the "Certificate of Merger") and such other documents as are required by
the Act to be duly filed with the New Jersey Secretary of State prior to 4:00
p.m. eastern time on the Closing Date (as hereinafter defined), provided that
the conditions set forth in Article VI have been satisfied or waived. The Merger
shall become effective upon the filing of the Certificate of Merger and such
other documents as are required by the Act to be filed (the time of such filing
being the "Effective Time").
ARTICLE II
CONVERSION OF COMPANY COMMON STOCK
SECTION 2.1. Conversion of Capital Stock. As of the Effective Time, by
virtue of the Merger and without any action on the part of the holders of the
capital stock of the Constituent Corporations:
(a) Cancellation of Treasury Stock. All shares of Company Common Stock
that are owned directly or indirectly by the Company ("Treasury Company Common
Stock"), shall be canceled, and no consideration shall be delivered in exchange
therefor.
(b) Conversion of the Company Common Stock. Subject to Section 2.7,
each issued and outstanding share of the Company Common Stock, other than
Treasury Company Common Stock, shall be converted into, or become exchangeable
for, as applicable, the following: the number of shares of validly issued, fully
paid and nonassessable common stock, $.001 par value, of Parent ("Parent Common
Stock") equal to the Company Conversion Ratio (as defined herein). For purposes
of this Agreement, "Company Conversion Ratio" means a fraction, the numerator of
which is equal to 16,667, and the denominator of which is equal to the number of
shares of Company Common Stock issued and outstanding immediately prior to the
Effective Time.
SECTION 2.2. Reconciliation of Purchase Price.
(a) On the second anniversary of the Closing Date (the "Valuation
Date"), Parent shall calculate the purchase price shortfall (the "Purchase Price
Shortfall") by subtracting (i) $250,000.00, from (ii) the number resulting from
multiplying 16,667 times the Adjusted Valuation Price (as defined herein). If
the Purchase Price Shortfall is a positive number no further action will be
necessary. If the Purchase Price Shortfall is a negative number, then Parent
agrees to (i) pay the amount of the Purchase Price Shortfall in cash to the
Stockholder, or (ii) issue, to the Stockholder, additional shares of Parent
Common Stock with a value equal to the Purchase Price Shortfall (such shares of
Parent Common Stock shall be referred to as "Additional Stock"), or (iii)
resolve the Purchase Price Shortfall through a combination of the payment of
cash and the issuance of Additional Stock. Parent, in its sole discretion, shall
determine whether to pay cash or issue shares of Parent Common Stock to pay the
Purchase Price Shortfall.
The "Adjusted Valuation Price" shall equal the average closing price of a share
of Parent Common Stock for the ten (10) day period immediately preceding the
second anniversary of the Closing Date, as reported by the NASDAQ Stock Market
or such other securities exchange or national market system on which Parent
Common Stock is then listed.
(b) Notwithstanding the foregoing, in no event will (i) the amount of
the Purchase Price Shortfall exceed $83,330.00, or (ii) Parent be required to
issue more than 8,333 shares of Additional Stock.
(c) Notwithstanding the foregoing, the number of shares of Additional
Stock to be issued pursuant to this Agreement shall be equitably adjusted to the
extent that such adjustment is necessary to preserve the economic value of such
shares in the event of a stock dividend, stock split, reverse stock split, share
combination, recapitalization, merger, consolidation or similar event, of or by
Parent between the date of this Agreement and the date Additional Stock is
issued.
<PAGE>
(d) No fractional shares of Parent Common Stock will be issued, but in
lieu thereof a cash payment shall be calculated in accordance with Section 2.7
utilizing the Adjusted Valuation Price.
SECTION 2.3. Status of Newco Stock. At the Effective Time, by virtue of
the Merger and without any action on the part of any holder of any capital stock
of Newco, each issued and outstanding share of common stock of Newco shall
continue unchanged and remain outstanding as a share of common stock of Newco.
SECTION 2.4. Payment Exchange of Certificates. At Closing (as defined
in Section 7.1) the Company shall deliver to Parent the certificates
representing all of the issued and outstanding shares of capital stock of the
Company, duly endorsed in blank for transfer or accompanied by appropriate stock
powers duly executed in blank. In exchange for the delivery of such
certificates, Parent shall deliver to the Company or the Stockholder the
consideration as described in Section 2.1. Parent shall have no obligation to
deliver to Stockholder the consideration described in Section 2.1 except to the
extent that Stockholder have caused certificates representing Company Common
Stock (or affidavits of lost certificate in form and substance acceptable to
Parent, if applicable) to be tendered to Parent.
SECTION 2.5. No Further Ownership Rights in Company. At and after the
Effective Time, each holder of shares of Company Common Stock immediately prior
to the Effective Time shall cease to have any rights as a stockholder of the
Company, except for the right to surrender such stockholder's certificates in
exchange for receipt of the consideration described in Section 2.1, and after
the Effective Time, no transfer of shares of Company Common Stock which were
outstanding immediately prior to the Effective Time shall be made on the stock
transfer books of the Company.
SECTION 2.6. Transfer of Parent Common Stock. All Parent Common Stock
issued and delivered pursuant to this Agreement will be authorized but
previously unissued shares of Parent's common stock which have not been
registered under the Securities Act of 1933, as amended (the "Securities Act").
Unless and until otherwise permitted by this Agreement, each certificate of
Parent Common Stock issued pursuant to this Agreement to any Stockholder, or
their nominee, shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"These shares have not been registered under the Securities Act
of 1933 and may not be offered for sale, sold, pledged or
otherwise disposed of except pursuant to an effective
registration statement under such Act or pursuant to an exemption
from the registration requirements of such Act. Further, any such
offer, sale, pledge or transfer is subject to the conditions
specified in an Agreement and Plan of Merger dated as of April
18, 1996 ("Agreement") delivered in connection with the issuance
of such shares by LaserSight Incorporated, a copy of which
Agreement will be furnished to the holder hereof upon request and
without charge."
SECTION 2.7. Fractional Company Common Stock. No fraction of a share of
Parent Common Stock will be issued, but in lieu thereof each holder of Company
Common Stock who would otherwise be entitled to a fraction of a share of Parent
Common Stock (after aggregating all fractional shares of Parent Common Stock to
be received by such holder) shall receive from Parent an amount of cash (rounded
to the nearest whole cent), without interest, equal to such fraction multiplied
by the closing price of a share of Parent Common Stock as of the date of this
Agreement as reported by the NASDAQ Stock Market.
<PAGE>
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY AND THE STOCKHOLDER
The representations and warranties set forth below in Sections 3.1
through 3.26 are made to Parent by the Company. The representations and
warranties set forth in Sections 3.27 through Section 3.30 are made to Parent by
the Company and the Stockholder. The representations and warranties set forth in
Sections 3.31 through Section 3.32 are made to Parent by the Stockholder. In
connection with the following representations and warranties, to the extent any
representation or warranty is made "to the best of the Company's knowledge" such
phrase shall mean the knowledge of the Stockholder, John W. Norris, M.D. or
Richard W. Jones.
SECTION 3.1. Corporate Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the state of
New Jersey and has all requisite power and authority (corporate and other) to
own its properties and assets and to conduct its business as now conducted. The
Company is duly qualified to do business in the state of New Jersey, which is
the only jurisdiction in which the character or location of the properties owned
or leased by the Company or the nature of the business conducted by the Company
makes such qualification necessary.
SECTION 3.2. Capitalization of the Company. The authorized capital
stock of the Company consists of 2,500 shares of common stock, no par value, of
which 50 shares are issued and outstanding and owned of record and beneficially
by Stockholder. All of the Company Common Stock has been duly authorized and
validly issued, and is fully paid and non-assessable. There are no outstanding
options, warrants, agreements, conversion rights, preemptive rights, or other
rights to subscribe for, purchase or otherwise acquire any of the Company Common
Stock. The Company has, and will have at the Closing, valid and marketable title
to all of the Company Common Stock, and shall deliver the Company Common Stock
to Parent at the Closing, free and clear of any liens, claims, charges, security
interests or other legal or equitable encumbrances, limitations or restrictions
of any kind or nature whatsoever.
SECTION 3.3. Subsidiaries and Equity Investments. The Company does not
have any subsidiaries, nor does the Company have any, direct or indirect,
investment interest in any entity which exceeds ten percent (10%) of the
ownership or voting rights of such entity, nor does the Company have, or
pursuant to any agreement have the right to acquire at any time by any means,
directly or indirectly, an equity interest or investment in any corporation,
partnership, joint venture or other entity.
SECTION 3.4. Authorization. The Company has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by the Company, the performance by the Company of its obligations hereunder, and
the consummation by the Company of the transactions contemplated hereby, have
been duly authorized by the unanimous vote of both the Company's Board of
Directors and the Stockholder. No other corporate action on the part of the
Company is necessary to authorize the execution and delivery of this Agreement
or the consummation of the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by the Company and, assuming this
Agreement constitutes valid and binding obligations of Parent and Newco, will
constitute a valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except to the extent that such enforcement
may be subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights
generally, and the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefore may be brought.
SECTION 3.5. No Violation. Except as set forth on Schedule 3.5, none of
the execution, delivery nor the performance by the Company of this Agreement
violates or will violate any provision of law, of any order, judgment or decree
of any court or other governmental or regulatory authority, or of the charter
documents or by-laws of the Company, nor violates or will result in a breach of
or constitute (with due notice or lapse of time or both) a default under any
contract, lease, loan agreement, mortgage, security agreement, trust indenture
or other agreement or instrument to which the Company is a party or by which it
is bound or to which any of its properties or assets is subject, nor will result
in the creation or imposition of any lien, charge or encumbrance of any kind
whatsoever upon any of the properties or assets of the Company, nor will result
in the cancellation, modification, revocation or suspension of any of the
licenses, franchises, permits, authorizations or approvals referred to in
Section 3.15 hereof.
<PAGE>
SECTION 3.6. Consents and Approvals. No consent, waiver, authorization,
or approval of any governmental or regulatory authority, domestic or foreign, or
of any other person, firm or corporation, and no declaration to or filing or
registration with any such governmental or regulatory authority, is required in
connection with the execution and delivery of this Agreement by the Stockholder
or the Company or the performance by the Stockholder or the Company of their
obligations hereunder, except as would not have a Material Adverse Effect (as
defined herein). For purposes hereof, "Material Adverse Effect" means an event,
condition, development or circumstance, taken as a whole, which has or may have
a more than five percent (5%) monetary adverse effect on the assets, business,
operations, condition (financial or otherwise) of the Company.
SECTION 3.7. Financial Statements. The Stockholder and the Company have
heretofore furnished to Parent and Newco (i) copies of the unaudited financial
statements of the Company for the fiscal years ending December 31, 1994 and
December 31, 1995, and (ii) copies of the unaudited internal financial
statements (the "Balance Sheet") of the Company as of February 29, 1996 (the
"Balance Sheet Date"), copies of which are attached hereto as Schedule 3.7 (such
financial statements being hereinafter referred to as the "Financial
Statements"). The Financial Statements (a) were prepared on a consistent basis
throughout the periods covered thereby, (b) present fairly the financial
position, results of operations of the Company as of such dates and for the
periods then ended (subject, in the case of the interim Financial Statements, to
normal year-end adjustments consistent with prior periods), (c) are complete and
correct and in accordance with the books of account and records of the Company,
and (d) can be reconciled with the financial statements and the financial
records maintained and the accounting methods applied by the Company for federal
income tax purposes.
SECTION 3.8. Absence of Certain Changes or Events. Since the Balance
Sheet Date, there has been no Material Adverse Effect to the assets or
liabilities, or in the business or condition, financial or otherwise, or in the
results of operations, of the Company, except in the ordinary course of
business. To the best of the Company's knowledge, there is no event, condition,
circumstance or development which will have a Material Adverse Effect on the
assets, properties, operations, net income or financial condition of the
Company.
SECTION 3.9. Tax Matters. All tax and information returns required to
have been filed by the Company with the United States of America, all state and
local government authorities and all foreign jurisdictions have been duly filed
and each such return correctly reflects the income, franchise, property, sales,
use, value-added, withholding, excise, capital or other tax liabilities and all
other information required to be reported thereon. The Company has paid all
income, franchise, business, property, sales, use, value-added, withholding,
payroll, excise, capital and other taxes shown to be due and payable on said
returns, and all penalties, assessments or deficiencies of every nature and
description incurred or accrued prior to the Balance Sheet Date, except to the
extent that such amounts are reserved for on the latest balance sheets included
in the Financial Statements. Except as set forth on Schedule 3.9, the income tax
returns of the Company have not been audited by any federal, state or local tax
authority or agency. No consent extending any statute of limitations has been
filed by the Stockholder or the Company with respect to any tax liability for
any year.
SECTION 3.10. Absence of Undisclosed Liabilities. The Company has no
outstanding claims, liabilities or indebtedness, contingent or otherwise, except
as set forth in the Financial Statements, other than liabilities incurred
subsequent to the Balance Sheet Date in the ordinary course of business not
involving borrowings by the Company, and except as would not have a Material
Adverse Effect. Except as shown in the Financial Statements, the Company is not
directly or indirectly liable upon or with respect to (by discount, repurchase
agreements or otherwise), or obligated in any other way to provide funds in
respect of, or to guarantee or assume, any debt, obligation or dividend of any
person, except endorsements in the ordinary course of business in connection
with the deposit of items for collection.
<PAGE>
SECTION 3.11. Interests in Real Property. The Company does not own any
real property.
SECTION 3.12. Leases. Schedule 3.12 attached hereto and made a part
hereof, contains an accurate and complete list and general description of the
terms of all leases to which the Company is a party (as lessee or lessor). As of
the Closing Date, each lease set forth in Schedule 3.12 (or required to be set
forth in Schedule 3.12) is in full force and effect; all rents and additional
rents due to date on each such lease have been paid; in each case, the lessee
has been in peaceable possession since the commencement of the original term of
such lease and is not in default thereunder and no material waiver, indulgence
or postponement of the lessee's obligations thereunder has been granted by the
lessor; and there exists no event of default or event, occurrence, condition or
act (including the merger hereunder) which, with the giving of notice, the lapse
of time or the happening of any further event or condition, would become a
default under such lease. The Company has not violated any of the terms or
conditions under any such lease in any material respect, and, as of the Closing
Date, to the best knowledge, information and belief of the Stockholder and the
Company, all of the covenants to be performed by any other party under any such
lease have been fully performed in all material respects. All buildings,
structures, improvements and fixtures leased or used by the Company in the
conduct of its businesses conform in all material respects to all applicable
codes and rules adopted by national and local associations and boards of
insurance underwriters; and all such buildings, structures, improvements and
fixtures are in good operating condition and repair.
SECTION 3.13. Personal Property. Except for properties and assets
reflected in the Financial Statements or acquired since the Balance Sheet Date
which have been sold or otherwise disposed of in the ordinary course of
business, the Company has good, valid and marketable title to (a) all its
material personal properties and assets (tangible and intangible), including,
without limitation, all the properties and assets reflected in the Financial
Statements, and (b) all the personal properties and assets purchased by the
Company since the Balance Sheet Date, in each case subject to no encumbrance,
lien, charge or other restriction of any kind or character, except for (i) liens
reflected in the Financial Statements, and (ii) liens reflected in the U.C.C.
lien searches, copies of which are attached hereto as Schedule 3.13.
SECTION 3.14. Trademarks, Trade Names, Patents, Copyrights, and
Know-How. Set forth in Schedule 3.14 hereto is a true and correct list of all
United States and foreign trademarks, service marks, trade names, patents and
copyrights (either registered, applied for, or common law) owned by, registered
in the name of, licensed to, or used in the business of the Company (the
"Intangible Assets"). To the best of the Company's knowledge, there is no
restriction affecting the Company's use of any of the Intangible Assets, and no
license has been granted with respect thereto. The Company has not received
notice and is not aware of any challenge to the Company's use of the Intangible
Assets. Each of the Intangible Assets is not involved in any pending or, to the
best of the Company's knowledge, threatened administrative or judicial
proceeding, and, to the best of the Company's knowledge, does not conflict with
any rights of any other person, firm or corporation. To the best of the
Company's knowledge, none of the Company's operations involves any infringement
of any proprietary right of any other person, firm or corporation.
SECTION 3.15. Licenses, Permits and Governmental Approvals. Set forth
in Schedule 3.15 hereto is a true and complete list of all licenses, permits,
franchises, authorizations and approvals issued or granted to the Company and
any of the Professionals (as defined herein) by the United States, any state or
local government, any foreign national or local government, or any department,
agency, board, commission, bureau or instrumentality of any of the foregoing
(the "Licenses"), and all pending applications therefor. Such list contains a
summary description of each such item and, where applicable, specifies the date
issued, granted or applied for, the expiration date and the current status
thereof. Each License has been duly obtained, is valid and in full force and
effect, and is not subject to any pending or, to the best of the Company's
knowledge, threatened administrative or judicial proceeding to revoke, cancel or
declare such License invalid in any respect. The Licenses are sufficient in all
respects to permit the continued lawful conduct of the Company's business in the
manner now conducted, and the Company's operations are not being conducted in a
manner which violates any of the terms or conditions under which any License was
granted.
<PAGE>
SECTION 3.16. Compliance with Laws. The business and operations of the
Company have been and are being conducted in all material respects in accordance
with all laws, regulations, orders and other legal requirements applicable
thereto, and neither Stockholder nor the Company has received notice of any
violation of any such law, regulation, order or other legal requirement, or is
in default with respect to any order, writ, judgment, award, injunction or
decree of any federal, state or local court or governmental or regulatory
authority or arbitrator, domestic or foreign, applicable to the Company or any
of its assets, properties or operations.
SECTION 3.17. Litigation. Except as set forth on Schedule 3.17, there
are no claims, actions, suits, proceedings, labor disputes or investigations
pending or, to the best of the Company's knowledge, threatened before any
federal, state or local court or governmental or regulatory authority, domestic
or foreign, or before any arbitrator of any nature, brought by or against either
Stockholder (in connection with the provision of professional services), or the
Company or any of the Company's officers, directors, employees, agents or
affiliates involving, affecting or relating to any assets, properties or
operations of the Company or the transactions contemplated by this Agreement.
Neither the Company nor any of its assets or properties is subject to any order,
writ, judgment, award, injunction or decree of any federal, state or local court
or governmental or regulatory authority or arbitrator, which affects the assets,
properties, operations, prospects, net income or financial condition or which
would interfere with the transactions contemplated by this Agreement.
SECTION 3.18. Contracts. Set forth in Schedule 3.18 hereto is a list of
all written contracts, agreements, documents and other instruments to which the
Company is a party and which have a term of one year or greater or which in the
aggregate provide for the expenditure of at least $2,500, including without
limitation (such contracts, agreements, documents and other instruments to be
referred to herein as "Material Contracts"), (i) purchase and supply contracts;
(ii) contracts, loan agreements, mortgages, security agreements, trust
indentures, promissory notes and other documents or arrangements relating to the
borrowing of money or for lines of credit; (iii) leases and subleases of real or
personal property; (iv) agreements and other arrangements for the sale of any
assets other than in the ordinary course of business or for the grant of any
options or preferential rights to purchase any assets, property or rights; (v)
documents granting any power of attorney with respect to the affairs of the
Company; (vi) suretyship contracts, working capital maintenance or other form of
guaranty agreements; (vii) contracts or commitments limiting or restraining the
Company or the Stockholder from engaging or competing in any lines of business
or with any person, firm, or corporation; (viii) partnership and joint venture
agreements; and (ix) all amendments, modifications, extensions or renewals of
any of the foregoing. To the best of the Company's knowledge, each Material
Contract is valid, binding and enforceable against the parties thereto in
accordance with its terms, and in full force and effect on the date hereof,
except to the extent that such enforcement may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally. The Company has
performed all material obligations required to be performed by it to date under,
and is not in default in respect of, any Material Contract, and no event has
occurred which, with due notice or lapse of time or both, would constitute such
a default. To the best knowledge of Stockholder and the Company no other party
to any Material Contract is in default in respect thereof, and no event has
occurred which, with due notice or lapse of time or both, would constitute such
a default. True and complete originals or copies of all of the Material
Contracts have been delivered to Parent or its representatives by the
Stockholder or the Company. The Company has no Material Contracts related,
directly or indirectly, to the operation of its business which is not in
writing.
SECTION 3.19. Accounts Receivable. All accounts receivable payable to
the Company as reflected on the Company's books and records as of the Closing
Date are due and valid claims against account debtors for services rendered and,
to the Company's knowledge, are not subject to any defense, offset, or
counterclaims, except to the extent reflected on the most recent Financial
Statements. All accounts receivable arose in the ordinary course of business,
and none of the obligors of such receivables have refused or given notice that
it refuses to pay the full amount thereof. The Company has not incurred any
liabilities to customers for discounts, returns, allowances, or otherwise.
<PAGE>
SECTION 3.20. Employee Plans and Contracts. The Company does not
maintain and has not maintained any employee benefit plans, as defined by
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended.
SECTION 3.21. Insurance. Set forth in Schedule 3.21 hereto is a true
and complete list of all insurance policies in force with respect to the assets,
properties or operations of the Company, together with a summary description of
the premiums currently paid thereon, the hazards insured against and the dollar
amount of coverage. True and complete copies of all such insurance policies have
been furnished to Purchaser and Newco by the Stockholder. Such policies are in
full force and effect in all material respects with reputable insurers in such
amounts and insure against such losses and risks (including product liability)
as are adequate to protect the properties and businesses of the Company.
SECTION 3.22. Labor Agreements. The Company is not a party to any
agreement with any labor organization applicable to employees of the Company.
SECTION 3.23. New Employee Plans and Certain Salaries. Since the
Balance Sheet Date the Company has not (i) instituted or agreed to institute any
new Employee Plan whereunder the Company has any obligations, contingent or
otherwise, (ii) made or agreed to make any increase in the compensation payable
or to become payable by the Company to any of its directors, officers or
employees, except in accordance with the customary and existing compensation
policies of the Company, or (iii) paid or accrued or agreed to pay or accrue any
bonus, percentage of compensation, or other like benefit to, or for the credit
of, any of the directors, officers or employees of the Company, except in
accordance with the customary and existing compensation policies of the Company.
SECTION 3.24. Transactions with Directors, Officers and Affiliates. Set
forth on Schedule 3.24 is a true and complete list of all transactions between
the Company and (i) Stockholder or any spouse or relative of the Stockholder, or
(ii) any director, officer, employee, stockholder or affiliate as defined in
Rule 405 promulgated by the Securities and Exchange Commission ("SEC") of the
Company, except on an arm's-length basis in accordance with normal business
practices. To the best knowledge of the Stockholder and the Company, after
reasonable inquiry, during the past three (3) years none of the officers or
directors of the Company, or any spouse of any of such persons, has been a
director or officer of, or has had any direct or indirect interest in, any firm,
corporation, association or business enterprise which during such period has
been a supplier, customer or sales agent of the Company or has competed with or
been engaged in any business of the kind being conducted by the Company, except
on an arm's-length basis in accordance with normal business practices.
SECTION 3.25. Propriety of Records and Past Payments. Except for
transactions which in the aggregate would not have a Material Adverse Effect on
the business, financial condition, assets, liabilities, results of operations,
income or management of the Company: no funds or assets of the Company have been
used for illegal purposes; no unrecorded fund or assets of the Company has been
established for any purpose; no accumulation or use of the Company's corporate
funds has been made without being properly accounted for in the books and
records of the Company; all payments by or on behalf of the Company have been
duly and properly recorded and accounted for in their respective books and
records; no false or artificial entry has been made in the books and records of
the Company for any reason; no payment has been made by or on behalf of the
Company with the understanding that any part of such payment is to be used for
any purpose other than that described in the documents supporting such payment;
and the Company has not made, directly or indirectly, any illegal contributions
to any political party or candidate, either domestic or foreign.
SECTION 3.26. Powers of Attorney and Compensation of Employees. Set
forth in Schedule 3.26 is an accurate and complete list showing (i) the name and
address of each bank, trust companies, savings and loan associations and other
financial institutions at which the Company has an account or safe deposit box,
the number of any such account or any such box and the names of all persons
authorized to draw thereon or to have access thereto (prior to the Effective
Time the Company will deliver or make available to Parent copies of all records
pertaining to such accounts or safe deposit boxes), (ii) the names of all
persons, if any, holding powers of attorney from the Company and a summary
statement of the terms thereof, and (iii) the names of all persons whose
compensation from the Company for the fiscal year ended on December 31, 1995
exceeded an annualized rate of $25,000, together with a statement of the full
amount paid or payable to each such person for services rendered during such
fiscal year.
<PAGE>
SECTION 3.27. Accuracy of Information. None of the representations,
warranties or statements contained in this Agreement, in the exhibits hereto, or
in any other agreement, instrument or document executed or delivered by or on
behalf of Stockholder in connection with the transactions contemplated by this
Agreement contains any untrue statement of a material fact or omits to state any
material fact necessary in order to make any of such representations, warranties
or statements not misleading.
SECTION 3.28. No Changes Prior to Date of this Agreement. During the
period from the Balance Sheet Date to and including the date of this Agreement,
except as expressly contemplated hereby or set forth on the disclosure schedules
hereto, the Company will not have (i) incurred any liability or obligation of
any nature (whether accrued, absolute, contingent or otherwise), except in the
ordinary course of business, (ii) permitted any of its assets to be subjected to
any mortgage, pledge, lien, security interest, encumbrance, restriction or
charge of any kind, (iii) sold, transferred or otherwise disposed of any assets
except in the ordinary course of business, (iv) made any capital expenditure or
commitment therefor, except in the ordinary course of business, (v) declared or
paid any dividend or made any distribution on any shares of its capital stock,
or redeemed, purchased or otherwise acquired any shares of its capital stock or
any option, warrant or other right to purchase or acquire any such shares, (vi)
made any bonus or profit sharing distribution or payment of any kind, except in
the ordinary course of business, (vii) increased its indebtedness for borrowed
money, except current borrowings from banks in the ordinary course of business,
or made any loan to any Person, (viii) written off as uncollectible any notes or
capitation fees, except write-offs in the ordinary course of business charged to
applicable reserves, none of which individually or in the aggregate is material
to the Company, (ix) granted any increase in the rate of wages, salaries,
bonuses or other remuneration of any executive employee or other employees,
except in the ordinary course of business, (x) canceled or waived any claims or
rights of substantial value, (xi) made any change in any method or accounting or
auditing practice, (xii) otherwise conducted its business or entered into any
transaction, except in the usual and ordinary manner and in the ordinary course
of its business, (xiii) agreed, whether or not in writing, to do any of the
foregoing, or (xiv) hired any new employees, except in the ordinary course of
business.
SECTION 3.29. Purchase for Investment; Restricted Securities. The
Stockholder will acquire the Parent Common Stock for his own account for
investment and not with a present view toward any resale or distribution
thereof. Certificates representing the acquired Parent Common Stock shall bear
the restrictive legend set forth in Section 2.6 hereof indicating the absence of
registration under the Securities Act and imposing all applicable transfer
restrictions thereon. The holders of the Parent Common Stock issued pursuant to
the terms hereof shall not transfer such shares in violation of any applicable
federal, state or local laws, rules or regulations.
SECTION 3.30. Parent Common Stock.
(a) Stockholder acknowledges the delivery by Parent and Stockholder's
receipt of (i) Parent's Annual Report on Form 10-K for the year ended December
31, 1995, (ii) Parent's proxy statement relating to its 1995 annual meeting of
stockholders, and (iii) such other publicly available information relating to
Parent as was requested by Stockholder (collectively, the "SEC Filings").
(b) Stockholder acknowledges that representatives of Parent have
responded to all questions of sockholder relating to the SEC Filings.
(c) Stockholder has relied upon consultations with his legal, financial
and other advisers with respect to this transaction, and the nature of the
investment together with the additional information concerning Parent set forth
in the information provided in Section 3.30(a) above.
(d) The representations and warranties contained herein shall survive
the execution and delivery of this Agreement and the issuance by Parent of the
Parent Common Stock.
<PAGE>
SECTION 3.31 Authority. This Agreement has been duly and validly
executed and delivered by the Stockholder and, assuming this Agreement
constitutes valid and binding obligations of Parent, Newco and the Company, will
constitute a valid and binding obligation of the Stockholder enforceable against
the Stockholder in accordance with its terms, except to the extent that such
enforcement may be subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefore may be brought. The Stockholder has the necessary legal capacity to
enter into and perform this Agreement and the other agreements contemplated
hereby.
SECTION 3.32 Agreements, Judgments and Decrees Affecting Stockholder.
The Stockholder represents and warrants that he is not subject to any agreement,
judgment or decree adversely affecting his ability to satisfy his obligations
hereunder.
Except as set forth in this Article III, neither of the Company nor the
Stockholder make any representation or warranty to Parent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND NEWCO
The representations and warranties set forth below in Sections 4.1
through 4.5 and in Section 4.7 are made to the Company and the Stockholder by
Parent and Newco and references in such Sections to Parent shall also be deemed
to be references to Newco unless the context indicates otherwise. The
representations and warranties set forth in Section 4.6 are made to the Company
and the Stockholder by Newco.
SECTION 4.1. Corporate Organization. Parent is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, with all requisite power and authority
(corporate and other) to own its properties and assets and to conduct its
business as now conducted.
SECTION 4.2. Corporate Authority. As of the Closing Date, Parent will
have the corporate power to enter into this Agreement and to carry out its
respective obligations hereunder and thereunder. As of the Closing Date, the
execution and delivery of this Agreement and the performance of Parent's
obligations hereunder, will have been duly authorized by the Board of Directors
of Parent, and no other corporate proceedings on the part of Parent will be
necessary to authorize such execution, delivery and performance. This Agreement
has been duly executed by Parent and, as of the Closing Date, will constitute
valid and legally binding obligations of Parent, enforceable against Parent in
accordance with the terms hereof and thereof, except to the extent that such
enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights
generally, and the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefore may be brought.
SECTION 4.3 No Violation. Neither the execution, delivery nor the
performance by Parent of this Agreement violates or will violate any provision
of law, of any order, judgment or decree of any court or other governmental or
regulatory authority, or of the charter documents or by-laws of Parent, nor
violates or will result in a breach of or constitute (with due notice or lapse
of time or both) a default under any contract, lease, loan agreement, mortgage,
security agreement, trust indenture or other agreement or instrument to which
Parent is a party or by which it is bound or to which any of its properties or
assets is subject, nor will result in the creation or imposition of any lien,
charge or encumbrance of any kind whatsoever upon any of the properties or
assets of Parent.
SECTION 4.4. Investment Intent. The Company Common Stock will be
acquired hereunder solely for the account of Parent and its specified designees,
for investment, and not with a view to the resale or distribution thereof,
subject to the right of Parent and any such designees to sell, assign, transfer
or distribute any or all of the Company Common Stock to any corporation which is
an affiliate of Parent, as defined in Rule 405 promulgated by the SEC.
<PAGE>
SECTION 4.5. Consents and Approvals. Other than the filing of the
Certificate of Merger pursuant to the Act, and requirements of federal and state
securities laws, no filing or registration with, no notice to and no permit,
authorization, consent or approval of any third party or any public or
governmental body or authority is necessary for the consummation by Parent or
Newco of the transactions contemplated by this Agreement.
SECTION 4.6. Capitalization of Newco. The authorized capital stock of
Newco consists of 1,000 shares of common stock, $.001 par value, of which 1,000
shares are issued and outstanding. All of the Newco common stock has been duly
authorized and validly issued, and is fully paid and non-assessable. There are
no outstanding options, warrants, agreements, conversion rights, preemptive
rights, or other rights to subscribe for, purchase or otherwise acquire any of
Newco's common stock.
SECTION 4.7. Accuracy of Information. None of the representations,
warranties or statements contained in this Agreement, in the exhibits hereto, or
in any other agreement, instrument or document executed or delivered by or on
behalf of Parent in connection with the transactions contemplated by this
Agreement contains any untrue statement of a material fact or omits to state any
material fact necessary in order to make any of such representations, warranties
or statements not misleading.
Except as set forth in this Article IV, neither Parent nor Newco make any
representation or warranty to the Company or the Stockholder.
ARTICLE V
ADDITIONAL COVENANTS
SECTION 5.1. Indemnification.
(a) The Stockholder and Company agree, to indemnify and hold Parent and
its affiliates, and its officers, directors and agents harmless from damages,
losses or expenses suffered or paid, directly or indirectly, as a result of any
and all claims, demands, suits, causes of action, proceedings, judgments and
liabilities, including reasonable counsel fees incurred in litigation or
otherwise, assessed, incurred or sustained by or against any of them with
respect to or arising out of (i) the failure of any representation or warranty
made by the Stockholder or the Company in this Agreement or in any Schedule
delivered pursuant hereto to be true and correct in all material respects as of
the date of this Agreement and as of the Closing Date ("Company Representation
Breach"), or (ii) the breach by or nonperformance of the Company of any of the
covenants contained in Sections 5.3, 5.4, 5.5, 5.6, 5.8 and 5.9 ("Company
Covenant Breach" and collectively with a Company Representation Breach a
"Company Breach");, provided that the indemnification covenant contained in this
Section will not require the Stockholder or the Company to indemnify in
connection with consequential damages sustained by the parties eligible for
indemnification hereunder.
(b) Parent agrees to indemnify and hold the Stockholder and his heirs
and assigns, and the Company and its affiliates and its officers, directors and
agents harmless from damages, losses or expenses suffered or paid, directly or
indirectly, as a result of any and all claims, demands, suits, causes of action,
proceedings, judgments and liabilities, including reasonable counsel fees
incurred in litigation or otherwise, assessed, incurred or sustained by or
against any of them with respect to or arising out of (i) the failure of any
representation or warranty made by Parent in this Agreement to be true and
correct in all material respects as of the date of this Agreement and as of the
Closing Date ("Parent Representation Breach"), or (ii) the breach by or
nonperformance of Parent of any of the covenants contained in Section 5.5
("Parent Covenant Breach" and collectively with a Parent Representation Breach a
"Parent Breach"); provided that the indemnification covenant contained in this
Section will not require Parent to indemnify in connection with consequential
damages sustained by the parties eligible for indemnification hereunder.
(c) The party indemnified under Section 5.1 or 5.2 (the "Indemnified
Party") shall notify in writing the indemnifying party (the "Indemnifying
Party") within (i) 60 days after a claim is presented to the Indemnified Party
or the Indemnified Party becomes aware of substantial facts that would
<PAGE>
reasonably appear to the Indemnified Party to be likely to give rise to a claim
for indemnity under Section 5.1 or 5.2, or (ii) five days if the Indemnified
Party receives formal notice of the filling of a suit, petition or claim or the
scheduling of a hearing related to a matter which may give rise to claim for
indemnity under Section 5.1 or 5.2. The Indemnifying Party shall promptly
defend, settle, compromise or litigate such claim in good faith. If the
Indemnifying Party does not promptly defend, settle, compromise or litigate such
claim in good faith, the Indemnified Party may do so without the Indemnifying
Party's participation, in which case the Indemnifying Party may settle or
compromise such claim without the Indemnifying Party's consent. If the
Indemnified Party fails to notify the Indemnifying Party of claim in accordance
with the terms of this Section, and the Indemnifying Party is thereby materially
prejudiced by such failure of notice in its defense of the claim, the
Indemnifying Party's obligation to indemnify under Section 5.1 or 5.2 shall be
extinguished with respect to such claim to the extent that the Indemnifying
Party has been prejudiced by the failure to give such notice.
(d) The Indemnified Party shall not be entitled to indemnification for
any claim until the aggregate amount of claims under Section 5.1 exceeds
$5,000.00 (the "Threshold Amount"), and then the Indemnified Party may only
recover the amount in excess of the Threshold Amount. Prior to seeking
indemnification under Section 5.1 the parties must first utilize proceeds
available from relevant insurance policies of the Indemnified Party. In
addition, the Indemnifying Party's obligation under this Section 5.1 shall not
exceed $125,000.00.
(e) Notwithstanding the foregoing, Parent or the Surviving Corporation
may claim a Company Breach and may seek indemnification hereunder, without
regard to the Threshold Amount, if Stockholder or the Company breach Section
5.6.
(f) The obligations under this Section 5.1 shall survive the Closing
for a period of two years. The rights and remedies provided under this Section
5.1 shall be exclusive of any other rights and remedies to which any of the
Indemnified Parties may be entitled under this Agreement or otherwise at law or
in equity in connection with a breach of the representations and warranties
contained in this Agreement.
SECTION 5.2. Indemnification As Nonexclusive Remedy.
(a) Parent agrees to indemnify and hold the Stockholder and his heirs
and assigns, and the Company and its affiliates and its officers, directors and
agents harmless from damages, losses or expenses suffered or paid, directly or
indirectly, as a result of any and all claims, demands, suits, causes of action,
proceedings, judgments and liabilities, including reasonable counsel fees
incurred in litigation or otherwise, assessed, incurred or sustained by or
against any of them with respect to or arising out of the breach by or
nonperformance of Parent of any of the covenants contained in Sections 5.7 and
5.10 ("Parent Nonexclusive Breach"); provided that the indemnification covenant
contained in this Section will not require Parent to indemnify in connection
with consequential damages sustained by the parties eligible for indemnification
hereunder.
(b) The claims of the Indemnified Party under Section 5.2 shall not be
subject to the Threshold Amount. Prior to seeking indemnification hereunder the
parties must first utilize proceeds available from relevant insurance policies
of the Indemnified Party.
(c) The obligations of under this Section 5.2 shall survive the
Closing. The rights and remedies provided under Section 5.2 shall be in addition
to any other rights and remedies to which any of the Indemnified Parties may be
entitled under this Agreement or otherwise at law or in equity in connection
with a Parent Nonexclusive Breach.
SECTION 5.3. Consents and Approvals. Stockholder and Company (i) shall
obtain all necessary consents, waivers, authorizations and approvals of all
governmental and regulatory authorities, domestic and foreign, and of all other
persons, firms or corporations required in connection with the execution,
delivery and performance by them of this Agreement, and (ii) shall diligently
assist and cooperate with Parent and Newco in preparing and filing all documents
required to be submitted by Parent or Newco to any governmental or regulatory
authority, domestic or foreign, in connection with such transactions (which
assistance and cooperation shall include, without limitation, timely furnishing
<PAGE>
to Parent and Newco all information concerning Stockholder or the Company which
in the opinion of counsel to Parent is required to be included in such
documents), and in obtaining any governmental consents, waivers, authorizations
or approvals which may be required to be obtained by Parent or Newco in
connection with such transactions.
SECTION 5.4. Further Assurances. Upon the request of Parent at any time
after the Closing Date, Stockholder will forthwith execute and deliver such
further instruments of assignment, transfer, conveyance, endorsement, direction
or authorization and other documents as Parent or its counsel may request in
order to perfect title of Parent and its successors and assigns to the Company
Common Stock or otherwise to effectuate the purposes of this Agreement.
SECTION 5.5. Required Actions. Subject to the terms and conditions of
this Agreement, each of the parties hereto will use diligent, good faith efforts
to take, or cause to be taken, and to do, or cause to be done, all things
necessary, proper or advisable consistent with applicable law to cause the
fulfillment on or prior to the Closing Date of all of the conditions to its
obligations hereunder and to consummate and make effective in a timely manner
the transactions contemplated hereby.
SECTION 5.6. Conduct of Business of the Company. After the execution of
this Agreement but prior to the Closing Date, the Stockholder shall cause the
Company to conduct its operations only according to its ordinary and usual
course of business and to use its best efforts to preserve intact its business
organizations, keep available the services of its officers and employees and
maintain satisfactory relationships with the Professionals, payors and others
having business relationships with the Company. Notwithstanding the immediately
preceding sentence, pending the Closing Date and except as may be first approved
by Parent or as is otherwise permitted or required by this Agreement, the
Stockholder will cause (i) the Company's Articles of Incorporation and By-Laws
to be maintained in their form on the date of this Agreement, (ii) the
compensation payable or to become payable by the Company to any officer,
employee or agent paid $25,000 per year or more on the Balance Sheet Date to be
maintained at their levels on the date of this Agreement, except in the ordinary
course of business, (iii) the Company to refrain from making any bonus, pension,
retirement or insurance payment or arrangement to or with any such persons
except those that may have already been accrued, except in the ordinary course
of business, (iv) the Company to refrain from entering into any contract or
commitment except contracts in the ordinary course of business, (v) the Company
to refrain from making any change affecting any bank, safe deposit or power of
attorney arrangements of the Company, and (vi) the Company to refrain from
making any distributions to stockholders, other than the payment of salaries and
bonuses, distributions of profits and repayment of debt. After the execution
hereof but prior to the Closing Date, the Stockholder shall cause the Company to
confer on a reasonable basis with one or more designated representatives of
Parent to report material operational matters outside of the normal course of
business and to report the general status of ongoing operations. The Stockholder
shall cause the Company to notify Parent of any change in the normal course of
its business or in the operation of its properties and of any governmental
complaints, investigations or hearings (or communications indicating that the
same may be contemplated), adjudicatory proceedings, meetings or submissions
involving any material property of the Company, and to keep Parent fully
informed of such events and permit its representatives prompt access to all
materials prepared in connection therewith.
SECTION 5.7. Registration Rights.
(a) The Stockholder may at any time beginning immediately after the
Valuation Date and ending six (6) months following the Valuation Date demand
Parent to register the Additional Stock under the Securities Act. The
Stockholder must exercise the demand registration rights granted pursuant to
this Section 5.7 during such six (6) month period or such rights shall expire
and such rights may only be exercised once during such six (6) month period.
Upon the Stockholder's exercise of his demand registration rights pursuant to
this Section 5.7 Parent shall use reasonable efforts to (i) file the required
registration statement, (ii) have such registration statement become effective,
and (iii) keep the registration statement effective for a four (4) month period.
<PAGE>
(b) In addition, if at any time or from time to time Parent proposes or
is required to file with the SEC a registration statement under the Securities
Act relating to any shares of Parent Common Stock (other than a registration
statement on Form S-8 or Form S-4 or any successor forms thereto, or any
registration form that does not permit the inclusion therein of the Additional
Stock issued pursuant to this Agreement) (the "Registration Statement"), Parent
will each such time give prompt written notice of its intention to do so to all
holders of Additional Stock issued pursuant to this Agreement then outstanding.
Upon the written request of any such holders (collectively, the "Requesting
Holders") given within 10 days after the delivery or mailing of such notice from
Parent, Parent will use all commercially reasonable efforts to cause all
Additional Stock issued pursuant to this Agreement then outstanding which such
Requesting Holders shall have requested to be included (subject to the
limitations set forth in Sections 5.7(c) and 5.7(d) below) in such Registration
Statement ("Requested Shares") so as to permit the public sale or other
disposition of such Requested Shares.
(c) If the Registration Statement of which Parent gives notice relates
to an underwritten public offering, Parent shall so advise the holders as a part
of the written notice given pursuant to Section 5.7(b) above. In such event, the
right of any Requesting Holder to registration shall be conditioned upon such
Requesting Holder's execution of the underwriting agreement agreed to by Parent
and the managing underwriters selected by Parent for such underwritten offering.
(d) Notwithstanding any other provisions of this Section 5.7, if the
managing underwriters advise Parent that marketing factors require a limit on
the number of shares to be underwritten, Parent may (subject to the limitations
set forth below) exclude all Requested Shares from, or limit the number of
Requested Shares to be included in, the Registration Statement and underwriting.
In such event, Parent shall so advise all Requesting Holders, and the number of
Requested Shares and other shares ("Other Shares") requested to be included in
such Registration Statement and underwriting by other persons or entities that
are then stockholders of Parent ("Other Holders"), after providing for all
shares that Parent proposes to offer and sell for its own account, shall be
allocated among the Requesting Holders and the Other Holders pro rata on the
basis of (i) the number of Requested Shares then held by such Requesting Holders
and (ii) the aggregate number of Other Shares then held by the Other Holders. If
any Requested Shares or Other Shares are excluded or withdrawn from such
Registration Statement and underwriting for any reason other than pursuant to
the previous sentence, then Parent shall offer to Requesting Holders and Other
Holders the right to include additional Requested Shares or Other Shares, as
applicable, in the Registration Statement and underwriting in an amount equal to
the number of shares so excluded or withdrawn, with such additional shares to be
allocated among the Requesting Holders and Other Holders requesting additional
inclusion, on the same basis as in the preceding sentence.
(e) In the case of each Registration Statement effected by Parent
pursuant to the terms described herein, Parent will keep each Requesting Holder
advised in writing as to the initial filing of each Registration Statement and
as to the effectiveness thereof. Parent will use reasonable efforts to: (i)
furnish such number of prospectuses and other documents incident thereto,
including any amendment of or supplement to the prospectus, as a Requesting
Holder from time to time may reasonably request; and (ii) cause all such
Requested Shares that are registered under a Registration Statement to be listed
on each securities exchange or national market system on which similar shares
issued by Parent are then listed.
(f) The Stockholder shall from time to time promptly supply to Parent
in writing any information relating to Stockholder, his holdings of Parent
Common Stock, and his intended plan of distribution as Parent may reasonably
request in order for it to comply with the rules of the Securities and Exchange
Commission relating to such registration statement.
<PAGE>
(g) All reasonable expenses incurred in connection with the
registration effected pursuant to this Section 5.7, including without limitation
all registration, filing, and qualification fees (including blue sky fees),
printing expenses, escrow fees, fees and disbursements of counsel for Parent,
expenses of special audits incidental to or required by such registration, the
premiums for insurance, if any, and all discounts and brokers' and underwriters'
fees and commissions shall be allocated among Parent, Stockholder and any other
stockholders of Parent registering shares at the same time, if applicable, in
proportion to the number of shares of stock to be registered by each such party
as compared to the total number of shares of stock to be registered by all such
parties in such registration.
SECTION 5.8. Full Access to the Company. Upon reasonable notice, during
ordinary business hours, the Company shall afford to Parent and its directors,
officers, employees, counsel, accountants and other authorized representatives
and agents free and full access to the management, facilities, properties, books
and records of the Company in order that Parent may have full opportunity to
make such investigations of the Company as Parent may desire.
SECTION 5.9. Taxes. Promptly after the Closing the Stockholder shall
order from the state of New Jersey a Certificate of Corporation Franchise Tax
Lien and shall provide Parent with a copy of such Certificate upon the Company's
receipt thereof.
SECTION 5.10. Insurance. So long as Newco has any indemnification
obligations under Section 5.1 or 5.2 hereof, Newco shall and Parent shall cause
Newco to maintain in effect insurance coverage with substantially similar
coverage limits as are contained in the policies described on Schedule 3.21.
ARTICLE VI
CLOSING CONDITIONS
SECTION 6.1. Conditions to Each Party's Obligations under this
Agreement. The respective obligations of each party under this Agreement shall
be subject to the fulfillment at or prior to the Effective Time of the following
conditions:
(a) Any and all permits, consents, waivers, clearances, approvals and
authorizations of all third parties and governmental bodies which are necessary
or advisable in connection with the consummation of the Merger and the other
transactions contemplated hereby shall have been obtained.
(b) No injunction, restraining order or other ruling or order issued by
any court of competent jurisdiction or governmental authority or other legal
restraint or prohibition preventing the consummation of the Merger shall be in
effect.
SECTION 6.2. Parent's Conditions to Close. The obligations of Parent
under this Agreement shall be further subject to the satisfaction, at or prior
to the Effective Time, of the following conditions:
(a) Each of the covenants, obligations and conditions of the Company
and the Stockholder required to be performed or complied with or satisfied at or
prior to the Closing pursuant to this Agreement shall have been duly performed,
complied with and satisfied, and Parent shall have received on the Closing Date
a certificate to that effect signed by an officer of the Company.
(b) All (i) action required by law or otherwise to be taken by the
Board of Directors of the Company and the Stockholder to authorize the
execution, delivery and performance of this Agreement and the transactions
contemplated hereby and thereby shall have been duly and validly taken, and no
stockholder in the Company shall have asserted dissenters' rights under the Act,
(ii) licenses, permits, consents, waivers, approvals and similar authorizations
necessary for the lawful conduct of the business of the Surviving Corporation
following the Closing Date shall have been obtained, and (iii) licenses,
permits, consents, waivers, approvals and similar authorizations of or from any
governmental authorities or other persons necessary or advisable in connection
with the consummation of the Merger and the other transactions contemplated by
this Agreement shall have been delivered, made or obtained, and Parent shall
have received copies thereof in form and substance satisfactory to Parent.
<PAGE>
(c) The Company shall have delivered to Parent an opinion of Nixon,
Hargrave, Devans & Doyle, LLP, dated as of the Effective Time, in form and
substance reasonably satisfactory to the Company.
(d) Parent shall have been furnished with evidence reasonably
satisfactory to it of the consent or approval of each person whose consent or
approval shall be required in order to permit the succession by the Surviving
Corporation pursuant to the Merger to any obligation, right or interest of the
Company under any loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement or instrument except those for which the failure to
obtain such consents and approvals would not, in the reasonable opinion of
Parent, individually or in the aggregate, have a Material Adverse Effect on the
Company or on the Surviving Corporation.
(e) Parent's Board of Directors shall have approved the Merger and the
other transactions contemplated by this Agreement.
(f) The merger contemplated by the Agreement and Plan of Merger dated
as of April 18, 1996, by and among Parent, Newco, Eye Diagnostics & Surgery,
P.A., John W. Norris, M.D. and Bernard Spier, M.D. (the "EDS Merger Agreement")
shall have been consummated and all of the conditions precedent contained in
such agreement shall have been satisfied or waived.
(g) The Stockholder shall have delivered to Parent the written
resignations, effective as of the Closing Date, of all directors and officers of
the Company.
(h) The Stockholder shall have delivered to Parent (i) copies of the
Company's charter, including all amendments thereto, certified by the
appropriate official of its jurisdiction of incorporation; and (ii) certificates
from the appropriate official of the respective jurisdictions of incorporation
to the effect the Company is in good standing and listing all charter documents
of the Company and such subsidiaries on file.
(i) The representations and warranties of the Stockholder and the
Company contained in this Agreement or in any Schedule delivered pursuant hereto
shall be true and correct on and as of the Closing Date with the same effect as
though such representations and warranties had been made on and as of such date,
and the Stockholders shall have delivered to Parent on the Closing Date a
certificate, dated the Closing Date, to such effect.
(j) No action or proceedings shall have been instituted or, to the best
knowledge, information and belief of the Stockholder or the Company, shall have
been threatened before a court or other government body or by any public
authority to restrain or prohibit any of the transactions contemplated hereby,
and the Stockholders shall have delivered to Parent on the Closing Date a
certificate, dated the Closing Date, to such effect.
(k) All indebtedness of the Company shall have been repaid in full.
SECTION 6.3. The Company's Conditions to Close. The obligations of the
Company under this Agreement shall be further subject to the satisfaction, at or
prior to the Effective Time, of the following conditions:
(a) Each of the covenants, obligations and conditions of Parent and
Newco required to be performed or complied with or satisfied at or prior to the
Closing pursuant to this Agreement shall have been duly performed, complied with
and satisfied, and the Company shall have received on the Closing Date a
certificate to that effect signed by an officer of Parent.
<PAGE>
(b) The representations and warranties of Parent and Newco contained in
this Agreement or in any Schedule delivered pursuant hereto shall be true and
correct on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date, and Parent
shall have delivered to the Company on the Closing Date a certificate, dated the
Closing Date, to such effect.
(c) The merger contemplated by the EDS Merger Agreement shall have been
consummated and all of the conditions precedent contained in such agreement
shall have been satisfied or waived.
(d) No action or proceedings shall have been instituted or, to the best
knowledge, information and belief of Parent, shall have been threatened before a
court or other government body or by any public authority to restrain or
prohibit any of the transactions contemplated hereby, and Parent shall have
delivered to the Company on the Closing Date a certificate, dated the Closing
Date, to such effect.
(e) Parent shall have delivered to the Company an opinion of
Sonnenschein Nath & Rosenthal, dated as of the Effective Time, in form and
substance reasonably satisfactory to the Company.
ARTICLE VII
CLOSING
SECTION 7.1. Closing. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place on the earlier of (i) June 17,
1996 or (ii) if the conditions set forth in Section 6.2(n) of the EDS Merger
Agreement have been satisfied, on such earlier date as Parent and the
Stockholders shall mutually agree, at the offices of Sonnenschein, Nath &
Rosenthal, 1221 Avenue of the Americas, 24th Floor, New York, New York 10020, or
at such other place as the parties shall agree, and shall be effective as of the
Effective Time (the "Closing Date"). At the Closing:
(a) the Company shall deliver to Parent the following:
(i) all certificates representing the Company Common Stock;
and
(ii) all other previously undelivered documents required to be
delivered by the Company to Parent at or prior to the Closing pursuant
to the terms of this Agreement.
(b) Parent shall deliver or cause to be delivered to the Company or the
Stockholder the following:
(i) all certificates representing the Parent Common Stock;
and
(ii) all other previously undelivered documents required to be
delivered by Parent to the Company or the Stockholder at or prior to
the Closing pursuant to the terms of this Agreement.
ARTICLE VIII
This Section Intentionally Left Blank
<PAGE>
ARTICLE IX
TERMINATION AND ABANDONMENT
SECTION 9.1. Termination. This Agreement may be terminated and the
Merger contemplated hereby may be abandoned at any time prior to the Effective
Time:
(a) by mutual consent of the Company and Parent;
(b) by either the Company or Parent;
(i) if there shall have been a material breach of any
representation, warranty, covenant or agreement on the part of Parent
on the one hand, or the Company on the other, set forth in this
Agreement which breach shall not have been cured, in the case of a
representation or warranty, prior to the date on which the conditions
other than the accuracy of the representation and warranty in question
would be satisfied for the Closing or, in the case of a covenant or
agreement, within five (5) business days following receipt by the
breaching party of notice of such breach;
(ii) if a court of competent jurisdiction or governmental,
regulatory or administrative agency or commission shall have issued an
order, decree or ruling or taken any other action (which order, decree
or ruling the parties hereto shall use their best efforts to lift), in
each case permanently restraining, enjoining or otherwise prohibiting
the transactions contemplated by this Agreement, and such order,
decree, ruling or other action shall have become final and
nonappealable; or
(iii) if the Effective Time shall not have occurred on or
before June 17, 1996; provided, however, that the right to terminate
this Agreement shall not be available to any party whose material
breach of this Agreement has been the cause of, or resulted in, the
failure of the Merger to occur on or before such date.
SECTION 9.2. Procedure and Effect of Termination. In the event of
termination and abandonment of the Merger pursuant to Section 9.1 hereof,
written notice thereof shall forthwith be given to the other parties to this
Agreement and this Agreement shall terminate and the Merger shall be abandoned,
without further action by any of the parties hereto. If this Agreement is
terminated as provided herein;
(a) upon request therefor, each party will redeliver all documents,
work papers and other material of any other party relating to the transactions
contemplated hereby, whether obtained before or after the execution hereof, to
the party furnishing the same;
(b) no party hereto shall have any liability or further obligation to
any other party to this Agreement resulting from such termination except (i)
that the provisions of this Section 9.2 and Section 10.5, shall remain in full
force and effect, and (ii) no party waives any claim or right against a
breaching party to the extent that such termination results from the breach by a
party hereto of any of its representations, warranties, covenants or agreements
set forth in this Agreement.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Survival of Provisions. The representations, warranties,
covenants and agreements related to a Company Breach and a Parent Breach (except
covenants and agreements which are expressly required to be performed and are
performed in full on or prior to the Closing Date) shall survive the Closing
Date and the consummation of the transactions contemplated by this Agreement for
a period of two years. The representations, warranties, covenants and agreements
related to a Company Nonexclusive Breach and a Parent Nonexclusive Breach shall
survive the Closing Date and the consummation of the transactions contemplated
by this Agreement. In the event of a breach of any of such representations and
warranties, the party to whom such representations and warranties have been made
shall have all rights and remedies for such breach available to him under the
provisions of Sections 5.1 and 5.2 of this Agreement, regardless of any
disclosure to, or investigation made by or on behalf of such party on or before
the Closing Date.
<PAGE>
SECTION 10.2. Publicity. So long as this Agreement shall be in effect,
none of the Company, either Stockholder nor Parent shall issue or cause the
publication of any press release or other announcement with respect to this
Agreement or the transactions contemplated hereby without the consent of the
other party, which consent shall not be withheld where such release or
announcement is required by applicable law.
SECTION 10.3. Successors and Assigns. This Agreement shall inure to the
benefit of, and be binding upon, the parties hereto and their respective
successors and assigns; provided, however, that neither party shall assign or
delegate this Agreement or any of the rights or obligations created hereunder
without the prior written consent of the other party. Notwithstanding the
foregoing, Parent shall have the unrestricted right to assign this Agreement and
all or any part of his rights hereunder and to delegate all or any part of his
obligations hereunder to any affiliate of Parent, but in such event Parent shall
remain fully liable for the performance of all of such obligations in the manner
prescribed in this Agreement. Nothing in this Agreement shall confer upon any
person, firm or corporation not a party to this Agreement, or the legal
representatives of such person, firm or corporation, any rights or remedies of
any nature or kind whatsoever under or by reason of this Agreement.
SECTION 10.4. Brokers and Finders. Each of parties represents and
warrants to the other that he has not engaged any broker, finder or investment
banker in connection with the transactions contemplated by this Agreement. Each
of the Company and Parent agrees to indemnify and hold harmless the other
against any brokerage fee, commission, finder's fee, or financial advisory fee
due to any person, firm or corporation acting on his behalf in connection with
the transactions contemplated by this Agreement.
SECTION 10.5. Expenses. Except as otherwise expressly provided in this
Agreement, all legal and other fees, costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such fees, costs or expenses.
SECTION 10.6. Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been given
or made if in writing and delivered personally or sent by registered or
certified mail (postage prepaid, return receipt requested) to the parties at the
following addresses:
1. if to the Company, to:
Michael R. Norris
71 South Second Street
South Orange, New Jersey 07070
with a copy to:
Nixon, Hargrave Devans & Doyle, LLP
990 Stewart Avenue
Garden City, New York 11530
Attn: Michael J. Taubin
2. if to Parent, to:
LaserSight Incorporated
12161 Lackland Road
St. Louis, Missouri 63146
Attn: Chief Executive Officer
with a copy to:
Sonnenschein Nath & Rosenthal
One Metropolitan Square
Suite 3000
St. Louis, Missouri 63102
Attn: Alan Bornstein
<PAGE>
or to such other persons or at such other addresses as shall be furnished by
either party by like notice to the other, and such notice or communication shall
be deemed to have been given or made as of the date so delivered or mailed.
SECTION 10.7. Entire Agreement. This Agreement, together with the
exhibits hereto, represents the entire agreement and understanding of the
parties with reference to the transactions set forth herein and no
representations or warranties have been made in connection with this Agreement
other than those expressly set forth herein or in the exhibits, certificates and
other documents delivered in accordance herewith. This Agreement supersedes all
prior negotiations, discussions, correspondence, communications, understandings
and agreements between the parties relating to the subject matter of this
Agreement and all prior drafts of this Agreement, all of which are merged into
this Agreement.
SECTION 10.8. Waivers and Amendments. Each of the Company and Parent
may by written notice to the other (a) extend the time for the performance of
any of the obligations or other actions of the other; (b) waive any inaccuracies
in the representations or warranties of the other contained in this Agreement;
(c) waive compliance with any of the covenants of the other contained in this
Agreement; (d) waive performance of any of the obligations of the other created
under this Agreement; or (e) waive fulfillment of any of the conditions to his
own obligations under this Agreement. The waiver by any party hereto of a breach
of any provision of this Agreement shall not operate or be construed as a waiver
of any subsequent breach. This Agreement may be amended, modified or
supplemented only by a written instrument executed by the parties hereto.
SECTION 10.9. Severability. This Agreement shall be deemed severable,
and the invalidity or unenforceability of any term or provision hereof shall not
affect the validity of enforceability of this Agreement or of any other term or
provision hereof.
SECTION 10.10. Article and Section Headings. The Article and Section
headings contained in this Agreement are solely for convenience of reference and
shall not affect the meaning or interpretation of this Agreement or of any term
or provision hereof.
SECTION 10.11. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
SECTION 10.12. Governing Law. This Agreement shall be governed by and
construed in accordance with the
laws of the State of New York.
SECTION 10.13. Schedules. Disclosure included on any schedule delivered
pursuant to this Agreement shall be considered to be made for purposes of all
schedules to this Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date first written above.
LASERSIGHT INCORPORATED
/s/Michael R. Farris
By:----------------------------
Chief Executive Officer
LSI ACQUISITION, INC.
/s/Michael R. Farris
By:----------------------------
Michael R. Farris
Name:--------------------------
President
Title:-------------------------
CATARACT HOTLINE, INC.
/s/Michael R. Norris
By:----------------------------
Michael R. Norris
Name:--------------------------
President
Title:-------------------------
STOCKHOLDER
/s/Michael R. Norris
-------------------------------
Michael R. Norris
<PAGE>
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER ("Amendment") is entered
into and is effective as of June 17, 1996, by and among LASERSIGHT
INCORPORATED, a Delaware corporation ("Parent"), LSI ACQUISITION, INC., a New
Jersey corporation ("Newco"), CATARACT HOTLINE, INC., a New Jersey corporation
(the "Company"), and MICHAEL R. NORRIS (the "Stockholder").
R E C I T A L S
WHEREAS, Parent, Newco, the Company and the Stockholder entered into an
Agreement and Plan of Merger dated as of April 18, 1996 (the "Agreement");
WHEREAS, Parent, Newco, the Company and the Stockholder desire to amend
certain provisions of the Agreement as provided for herein.
NOW, THEREFORE, the parties agree as follows:
1. The first sentence of Section 7.1 shall be deleted and the following
shall be inserted in its place:
The closing of the transactions contemplated by this Agreement (the
"Closing") shall take place on the earlier of (i) July 15, 1996, (ii)
if the conditions set forth in Section 6.2(n) of the EDS Merger
Agreement have been satisfied, on such earlier date as Parent and the
Stockholders shall mutually agree, or (iii) on such other date as
Parent and the Stockholders shall mutually agree, at the offices of
Sonnenschein, Nath & Rosenthal, 1221 Avenue of the Americas, 24th
Floor, New York, New York 10020, or at such other place as the parties
shall agree, and shall be effective as of the Effective Time (the
"Closing Date").
2. The date "June 17, 1996" referenced in Section 9.1(b)(iii) of the
Agreement shall be deleted and the date "July 15, 1996" shall be inserted in its
place.
3. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall be considered
one and the same amendment.
IN WITNESS WHEREOF, the parties hereto have signed this Amendment as of
the date first written above.
LASERSIGHT INCORPORATED
/s/Michael R. Farris
By:----------------------
Chief Executive Officer
LSI ACQUISITION, INC.
/s/Michael R. Farris
By:----------------------
Michael R. Farris
Name:--------------------
President
Title:-------------------
CATARACT HOTLINE, INC.
/s/Michael R. Norris
By:----------------------
Michael R. Norris
Name:--------------------
President
Title:-------------------
STOCKHOLDER
/s/Michael R. Norris
By:----------------------
Michael R. Norris
<PAGE>
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT is made and entered into as of April 18, 1996
by and between LASERSIGHT INCORPORATED, a Delaware corporation ("Parent"), and
JOHN W. NORRIS, M.D. (the "Seller").
RECITALS
A. Seller owns certain assets which are leased to Eye Diagnostics &
Surgery, P.A. (the "Company") which operates an ophthalmic medical practice
commonly known as Northern NJ Eye Institute at facilities located in South
Orange, New Jersey, Vernon, New Jersey and Elizabeth, New Jersey (the
"Practice").
B. Seller desires to sell to Parent, and Parent desires to purchase
from Seller, all of the assets owned by Seller which are utilized by the
Practice, on the terms and subject to the conditions hereinafter set forth.
C. Parent will then transfer such assets to LSI Acquisition, Inc., a
New Jersey corporation and a wholly owned subsidiary of Parent ("Newco").
THEREFORE, the parties agree as follows:
SECTION 1. DEFINITIONS.
In addition to terms defined elsewhere in this Agreement (including the
Recitals, which are hereby incorporated into this Agreement by this reference),
the following terms shall have the meanings assigned to them in this Section 1,
both for the purposes of this Agreement and all Schedules and Exhibits hereto:
"Agreement" shall mean this Asset Purchase Agreement, as amended from
time to time by the parties hereto, together with all Schedules and Exhibits
hereto.
"Assets" shall mean those assets set forth on Schedule 1, all free and
clear of all Liens.
"Closing" shall mean the transfer by Parent to Seller of the
consideration set forth herein, the transfer by Seller to Parent of the Assets
and the consummation of the transactions contemplated by this Agreement.
"Lien" shall mean any lien, pledge, claim, charge, security interest or
encumbrance of any nature whatsoever.
SECTION 2. PURCHASE AND SALE OF ASSETS.
Subject to the terms and conditions hereof, Seller shall sell, assign,
transfer and convey to Parent free and clear of all Liens, and Parent shall
purchase and accept, the Assets.
SECTION 3. PURCHASE PRICE
3.1 Purchase Price. The purchase price for the Assets shall be Five
Hundred Eighty-One Thousand Three Hundred Twenty-Eight Dollars ($581,328.00)
which shall be paid as follows:
(a) Cash or Promissory Note. At the Closing Parent shall
deliver to Seller (i) if the Closing shall occur on or after June 1,
1996, Three Hundred Forty Thousand Dollars ($340,000.00) in cash or by
a certified or official bank check payable to the order of Seller (the
"Cash Payment"); or (ii) if the Closing shall occur prior to June 1,
1996, a Promissory Note (the "Note") payable to Seller in the form of
Exhibit A hereto in the principal amount of Three Hundred Forty
Thousand Dollars ($340,000.00).
<PAGE>
(b) Parent Common Stock. At the Closing Parent shall deliver
to Seller Sixteen Thousand Eighty-Nine (16,089) shares of validly
issued, fully paid and nonassessable common stock, $.001 par value, of
Parent ("Parent Common Stock").
3.2 Reconciliation of Purchase Price.
(a) On the second anniversary of the Closing Date (the "Valuation
Date"), Parent shall calculate the purchase price shortfall (the "Purchase Price
Shortfall") by subtracting (i) $241,328.00, from (ii) the number resulting from
multiplying 16,089 times the Adjusted Valuation Price (as defined herein). If
the Purchase Price Shortfall is a positive number no further action will be
necessary. If the Purchase Price Shortfall is a negative number, then Parent
agrees to (i) pay the amount of the Purchase Price Shortfall in cash to Seller,
or (ii) issue, to Seller, additional shares of Parent Common Stock with a value
equal to the Purchase Price Shortfall (such shares of Parent Common Stock shall
be referred to as "Additional Stock"), or (iii) resolve the Purchase Price
Shortfall through a combination of the payment of cash and the issuance of
Additional Stock. Parent, in its sole discretion, shall determine whether to pay
cash or issue shares of Parent Common Stock to pay the Purchase Price Shortfall.
The "Adjusted Valuation Price" shall equal the average closing price of a share
of Parent Common Stock for the ten day period immediately preceding the second
anniversary of the Closing as reported by the NASDAQ Stock Market or such other
securities exchange or national market system on which Parent Common Stock is
then listed.
(b) Notwithstanding the foregoing, in no event will (i) the amount of
the Purchase Price Shortfall exceed $80,438.00, or (ii) Parent be required to
issue more than 8,044 shares of Additional Stock.
(c) Notwithstanding the foregoing, the number of shares of Additional
Stock to be issued pursuant to this Agreement shall be equitably adjusted to the
extent that such adjustment is necessary to preserve the economic value of such
shares in the event of a stock dividend, stock split, reverse stock split, share
combination, recapitalization, merger, consolidation or similar event, of or by
Parent between the date of this Agreement and the date Additional Stock is
issued.
(d) No fractional shares of Parent Common Stock will be issued, but in
lieu thereof a cash payment shall be calculated in accordance with Section 3.4
utilizing the Adjusted Valuation Price.
3.3 Transfer of Parent Common Stock. All Parent Common Stock issued and
delivered pursuant to this Agreement will be authorized but previously unissued
shares of the Parent's common stock which have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"). Unless and until
otherwise permitted by this Agreement, each certificate of Parent Common Stock
issued pursuant to this Agreement to Seller, or his nominee, shall be stamped or
otherwise imprinted with a legend in substantially the following form:
"These shares have not been registered under the Securities Act of 1933 and
may not be offered for sale, sold, pledged or otherwise disposed of except
pursuant to an effective registration statement under such Act or pursuant
to an exemption from the registration requirements of such Act. Further,
any such offer, sale, pledge or transfer is subject to the conditions
specified in an Asset Purchase Agreement dated as of April 18, 1996
("Agreement") delivered in connection with the issuance of such shares by
LaserSight Incorporated, a copy of which Agreement will be furnished to the
holder hereof upon request and without charge."
3.4 Fractional Company Common Stock. No fraction of a share of Parent
Common Stock will be issued, but in lieu thereof the Seller shall receive from
Parent an amount of cash (rounded to the nearest whole cent), without interest,
equal to such fraction multiplied by the closing price of a share of Parent
Common Stock as of the date of this Agreement as reported on the NASDAQ National
Market System.
<PAGE>
SECTION 4. ASSUMPTION OF LIABILITIES.
Parent does not and shall not assume, or in any way be liable or
responsible for, any liabilities or obligations of Seller whether known or
unknown, and whether now existing or hereafter accruing.
SECTION 5. CLOSING.
5.1 Closing Date. The Closing shall take place on the earlier of (i)
June 17, 1996 or (ii) if the conditions set forth in Section 6.2(n) of the EDS
Merger Agreement (as defined herein) have been satisfied, on such earlier date
as Parent and the Stockholders shall mutually agree, at the offices of
Sonnenschein, Nath & Rosenthal, 1221 Avenue of the Americas, 24th Floor, New
York, New York 10020, or at such other place as the parties shall agree, and
shall be effective as of the Effective Date ("Closing Date").
5.2 Transfer of Assets. At the Closing Seller shall sell, transfer,
assign, grant, deliver and convey to Parent all of Seller's right, title and
interest in and to the Assets, free and clear of any and all Liens. The
transactions contemplated by this Agreement shall be evidenced by delivery by
Seller to Parent of a Bill of Sale substantially in the form attached hereto as
Exhibit B, assignments and other documents of transfer acceptable in form and
substance to Parent in its judgment reasonably exercised.
5.3 Evidence of Transfer. At the Closing and thereafter, as Parent may
from time to time reasonably request, Seller shall execute and deliver to Parent
such documents and instruments of conveyance as may be appropriate and shall
take or cause to be taken such actions as Parent may request in order to
accomplish the transfer of the Assets and the consummation of the matters
contemplated by this Agreement. All such documents shall be in form and
substance reasonably satisfactory to Parent.
SECTION 6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
Seller hereby represents and warrants to Parent and covenants and
agrees, as of the Closing Date, as follows:
6.1 Authority. This Agreement has been duly and validly executed and
delivered by the Seller and, assuming this Agreement constitutes valid and
binding obligation of Parent, will constitute a valid and binding obligation of
the Seller enforceable against the Seller in accordance with its terms, except
to the extent that such enforcement may be subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, and the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefore may be brought. The Seller has the necessary legal capacity
to enter into and perform this Agreement and the other agreements contemplated
hereby.
6.2 Title. Seller has good and marketable title to and shall convey the
Assets to Parent free and clear of all Liens.
6.3 Taxes. Seller has paid, or will pay on or prior to any applicable
due date, all personal property and other taxes accrued or owed in connection
with Seller's ownership of the Assets.
6.4 Status of Assets. The Assets are in good operating condition and
repair, and Seller has not received notice that any Asset or the use thereof is
in violation of any existing law or any building, zoning, health, safety or
other ordinance, code or regulation.
6.5 Creditors. There is no person or business organization which is
known to Seller to have a Lien on the Assets. The transfer of the Assets to
Parent does not and will not constitute a fraudulent transfer or fraudulent
conveyance under any applicable state or federal law or regulation or under any
similar laws relating to creditors' rights generally and the Purchase Price
constitutes fair and adequate consideration for the Assets. Seller has not
entered into this Agreement or made any transfer or incurred any obligations
hereunder or in connection herewith, with the actual intent to disturb, hinder,
delay or defraud Seller's present or future creditors or other persons.
<PAGE>
6.6 No Violation. None of the execution, delivery nor the performance
by Seller of this Agreement violates or will violate any provision of law, of
any order, judgment or decree of any court or other governmental or regulatory
authority, nor violates or will result in a breach of or constitute (with due
notice or lapse of time or both) a default under any contract, lease, loan
agreement, mortgage, security agreement, trust indenture or other agreement or
instrument to which Seller is a party or by which Seller is bound or to which
any of Seller's properties or assets is subject, nor will result in the creation
or imposition of any lien, charge or encumbrance of any kind whatsoever upon the
Assets.
6.7 Consents and Approvals. No consent, waiver, authorization, or
approval of any governmental or regulatory authority, domestic or foreign, or of
any other person, firm or corporation, and no declaration to or filing or
registration with any such governmental or regulatory authority, is required in
connection with the execution and delivery of this Agreement by Seller or the
performance by Seller of his obligations hereunder, except as would not have a
Material Adverse Effect (as defined herein). For purposes hereof, "Material
Adverse Effect" means an event, condition, development or circumstance, taken as
a whole, which has or may have a more than five percent (5%) monetary adverse
effect on the Assets.
6.8 Insurance. Seller does not maintain insurance with respect to the
Assets.
6.9 Accuracy of Information. None of the representations, warranties or
statements contained in this Agreement, in the exhibits hereto, or in any other
agreement, instrument or document executed or delivered by Seller in connection
with the transactions contemplated by this Agreement contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make any of such representations, warranties or statements not
misleading.
6.10 Purchase for Investment; Restricted Securities. Seller will
acquire the Parent Common Stock for his own account for investment and not with
a present view toward any resale or distribution thereof. Certificates
representing the acquired Parent Common Stock shall bear the restrictive legend
set forth in Section 3.3 hereof indicating the absence of registration under the
Securities Act and imposing all applicable transfer restrictions thereon. The
holders of the Parent Common Stock issued pursuant to the terms hereof shall not
transfer such shares in violation of any applicable federal, state or local
laws, rules or regulations.
6.11 Parent Common Stock.
(a) Seller acknowledges the delivery by Parent and Seller's receipt of
(i) Parent's Annual Report on Form 10-K for the year ended December 31, 1995,
(ii) Parent's proxy statement relating to its 1995 annual meeting of
stockholders, and (iii) such other publicly available information relating to
Parent as was requested by such Seller (collectively, the "SEC Filings").
(b) Seller acknowledges that representatives of Parent have responded
to all questions of Seller relating to the SEC Filings.
(c) Seller has relied upon consultations with its legal, financial and
other advisers with respect to this transaction, and the nature of the
investment together with the additional information concerning Parent set forth
in the information provided in Section 6.11(a) above.
(d) The representations and warranties contained herein shall survive
the execution and delivery of this Agreement and the issuance by the Parent of
the Parent Common Stock.
Except as set forth in this Section VI, Seller does not make any representation
or warranty to Parent.
<PAGE>
SECTION 7. REPRESENTATIONS AND WARRANTIES OF PARENT.
Seller hereby represents and warrants to Parent and covenants and
agrees, as of the Closing Date, as follows:
7.1 Corporate Organization. Parent is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, with all requisite power and authority (corporate and other) to
own its properties and assets and to conduct its business as now conducted.
7.2 Corporate Authority. As of the Closing Date, Parent will have the
corporate power to enter into this Agreement and to carry out its respective
obligations hereunder and thereunder. As of the Closing Date, the execution and
delivery of this Agreement and the performance of Parent's obligations
hereunder, will have been duly authorized by the Board of Directors of Parent,
and no other corporate proceedings on the part of Parent will be necessary to
authorize such execution, delivery and performance. This Agreement has been duly
executed by Parent and, as of the Closing Date, will constitute valid and
legally binding obligations of Parent, enforceable against Parent in accordance
with the terms hereof and thereof, except to the extent that such enforcement
may be subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally,
and the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefore may be brought.
7.3 No Violation. Neither the execution, delivery nor the performance
by Parent of this Agreement violates or will violate any provision of law, of
any order, judgment or decree of any court or other governmental or regulatory
authority, or of the charter documents or by-laws of Parent, nor violates or
will result in a breach of or constitute (with due notice or lapse of time or
both) a default under any contract, lease, loan agreement, mortgage, security
agreement, trust indenture or other agreement or instrument to which Parent is a
party or by which it is bound or to which any of its properties or assets is
subject, nor will result in the creation or imposition of any lien, charge or
encumbrance of any kind whatsoever upon any of the properties or assets of
Parent.
7.4 Consents and Approvals. Other than requirements of federal and
state securities laws, no filing or registration with, no notice to and no
permit, authorization, consent or approval of any third party or any public or
governmental body or authority is necessary for the consummation by Parent of
the transactions contemplated by this Agreement.
7.5 Accuracy of Information. None of the representations, warranties or
statements contained in this Agreement, in the exhibits hereto, in the SEC
Filings or in any other agreement, instrument or document executed or delivered
by or on behalf of Parent in connection with the transactions contemplated by
this Agreement contains any untrue statement of a material fact or omits to
state any material fact necessary in order to make any of such representations,
warranties or statements not misleading.
Except as set forth in this Section VII, Parent does not make any representation
or warranty to Seller.
SECTION 8. CONDITIONS AND ADDITIONAL AGREEMENTS.
8.1 Parent's Conditions to Close. The Closing and all obligations of
Parent pursuant to this Agreement shall be conditioned upon the following:
(a) all representations and warranties contained in Section 6
shall be true in all material respects as of the Closing Date;
<PAGE>
(b) there shall not have been any material change in the
Assets (either individually or in the aggregate) from the date of
Parent's execution of this Agreement through the Closing Date if the
date of execution of this Agreement and the Closing Date are not one
and the same;
(c) Seller shall have performed all of his obligations under
this Agreement required to be performed as of the Closing Date;
(d) the transactions contemplated hereby shall not: (i)
require the consent, waiver, authorization or approval of any
governmental authority, domestic or foreign, or of any other person,
entity or organization, or (ii) conflict with or result in any breach
or violation of the terms and conditions of, or constitute (or with
notice or lapse of time, or both, constitute) a default under
applicable federal, state, local or foreign statute, regulation, order,
judgment or decree; and
(e) The merger contemplated by the Agreement and Plan of
Merger among Parent, Newco, Eye Diagnostics & Surgery, P.A., John W.
Norris, M.D. and Bernard Spier, M.D. (the "EDS Merger Agreement") shall
have been consummated and conditions precedent contained in such
agreement shall have been satisfied or waived and the merger
contemplated by the Agreement and Plan of Merger among Parent, Newco,
Cataract Hotline, Inc. and Michael R. Norris (the "CH Merger
Agreement") shall have been consummated and conditions precedent
contained in such agreement shall have been satisfied or waived.
In the event that any of the foregoing conditions is not satisfied, then Parent
may, at its option, terminate this Agreement in which event Parent shall be
relieved of all obligations hereunder and this Agreement shall be deemed null,
void and of no force or effect.
8.2 Parent's Deliveries. At or prior to the Closing, Parent shall
deliver to Seller (i) the Cash Payment or the Note, as applicable; and (ii) the
Parent Common Stock.
8.3 Seller's Conditions To Close. The Closing and all obligations of
Seller pursuant to this Agreement shall be conditioned upon the following:
(a) all representatives and warranties contained in Section 7
shall be true as of the Closing Date;
(b) Parent shall have performed all of its obligations under
this Agreement required to be performed as of the Closing Date;
(c) The merger contemplated by the EDS Merger Agreement shall
have been consummated and conditions precedent contained in such
agreement shall have been satisfied or waived and the merger
contemplated by the CH Merger Agreement shall have been consummated and
conditions precedent contained in such agreement shall have been
satisfied or waived; and
(d) the transactions contemplated hereby shall not: (i)
require the consent, waiver, authorization or approval of any
governmental authority, domestic or foreign, or of any other person,
entity or organization, or (ii) conflict with or result in any breach
or violation of the terms and conditions of, or constitute (or with
notice or lapse of time, or both, constitute) a default under
applicable federal, state, local or foreign statute, regulation, order,
judgment or decree.
In the event Seller believes that any of the foregoing conditions is not
satisfied, then Seller may, at its option, terminate this Agreement in which
<PAGE>
event Seller shall be relieved of all obligations hereunder and this Agreement
shall be deemed null, void and of no force or effect.
8.4 Seller's Deliveries. At or prior to the Closing, Seller shall
deliver to Parent the following documents:
(a) Bill of Sale. The Bill of Sale, conveying all of Seller's
right, title and interest in the Assets to Parent; and
(b) Other Purchase Documents. All such documents and
instruments Parent and its counsel may reasonably request in
connection with the consummation of the transactions contemplated by
this Agreement.
8.5 Registration Rights.
(a) Seller may at any time beginning immediately after the Valuation
Date and ending six (6) months following the Valuation Date demand Parent to
register the Additional Stock under the Securities Act. Seller, jointly or
individually, must exercise the demand registration rights granted pursuant to
this Section 8.5 during such six (6) month period or such rights shall expire
and such rights may only be exercised once during such six (6) month period.
Upon Seller's exercise of his demand registration rights pursuant to this
Section 8.5 Parent shall use reasonable efforts to (i) file the required
registration statement, (ii) have such registration statement become effective,
and (iii) keep the registration statement effective for a four (4) month period.
(b) In addition, if at any time or from time to time Parent proposes or
is required to file with the SEC a registration statement under the Securities
Act relating to any shares of Parent Common Stock (other than a registration
statement on Form S-8 or Form S-4 or any successor forms thereto, or any
registration form that does not permit the inclusion therein of the Additional
Stock issued pursuant to this Agreement) (the "Registration Statement"), Parent
will each such time give prompt written notice of its intention to do so to all
holders of Additional Stock issued pursuant to this Agreement then outstanding.
Upon the written request of any such holders (collectively, the "Requesting
Holders") given within 10 days after the delivery or mailing of such notice from
Parent, Parent will use all commercially reasonable efforts to cause all
Additional Stock issued pursuant to this Agreement then outstanding which such
Requesting Holders shall have requested to be included (subject to the
limitations set forth in Sections 8.5(c) and 8.5(d) below) in such Registration
Statement ("Requested Shares") so as to permit the public sale or other
disposition of such Requested Shares.
(c) If the Registration Statement of which Parent gives notice relates
to an underwritten public offering, Parent shall so advise the holders as a part
of the written notice given pursuant to Section 8.5(b) above. In such event, the
right of any Requesting Holder to registration shall be conditioned upon such
Requesting Holder's execution of the underwriting agreement agreed to by Parent
and the managing underwriters selected by Parent for such underwritten offering.
(d) Notwithstanding any other provisions of this Section 8.5, if the
managing underwriters advise Parent that marketing factors require a limit on
the number of shares to be underwritten, Parent may (subject to the limitations
set forth below) exclude all Requested Shares from, or limit the number of
Requested Shares to be included in, the Registration Statement and underwriting.
In such event, Parent shall so advise all Requesting Holders, and the number of
Requested Shares and other shares ("Other Shares") requested to be included in
such Registration Statement and underwriting by other persons or entities that
are then stockholders of Parent ("Other Holders"), after providing for all
shares that Parent proposes to offer and sell for its own account, shall be
allocated among the Requesting Holders and the Other Holders pro rata on the
basis of (i) the number of Requested Shares then held by such Requesting Holders
and (ii) the aggregate number of Other Shares then held by the Other Holders. If
any Requested Shares or Other Shares are excluded or withdrawn from such
Registration Statement and underwriting for any reason other than pursuant to
the previous sentence, then Parent shall offer to Requesting Holders and Other
Holders the right to include additional Requested Shares or Other Shares, as
applicable, in the Registration Statement and underwriting in an amount equal to
the number of shares so excluded or withdrawn, with such additional shares to be
allocated among the Requesting Holders and Other Holders requesting additional
inclusion, on the same basis as in the preceding sentence.
<PAGE>
(e) In the case of each Registration Statement effected by Parent
pursuant to the terms described herein, Parent will keep each Requesting Holder
advised in writing as to the initial filing of each Registration Statement and
as to the effectiveness thereof. Parent will use reasonable efforts to: (i)
furnish such number of prospectuses and other documents incident thereto,
including any amendment of or supplement to the prospectus, as a Requesting
Holder from time to time may reasonably request; and (ii) cause all such
Requested Shares that are registered under a Registration Statement to be listed
on each securities exchange or national market system on which similar shares
issued by Parent are then listed.
(f) Seller shall from time to time promptly supply to Parent in writing
any information relating to Seller, his holdings of Parent Common Stock, and his
intended plan of distribution as Parent may reasonably request in order for it
to comply with the rules of the Securities and Exchange Commission relating to
such registration statement.
(g) All reasonable expenses incurred in connection with the
registration effected pursuant to this Section 5.7, including without limitation
all registration, filing, and qualification fees (including blue sky fees),
printing expenses, escrow fees, fees and disbursements of counsel for Parent,
expenses of special audits incidental to or required by such registration, the
premiums for insurance, if any, and all discounts and brokers' and underwriters'
fees and commissions shall be allocated among Parent, Seller and any other
stockholders of Parent registering shares at the same time, if applicable, in
proportion to the number of shares of stock to be registered by each such party
as compared to the total number of shares of stock to be registered by all such
parties in such registration.
8.6 Transfer Taxes. Parent shall pay all taxes required by NJSA
54:32B-1, et.al. which arise as a result of Parent's purchase of the Assets, or
Parent shall provide Seller with evidence that such taxes are not applicable.
8.7 Transfer of Assets. Parent shall transfer the Assets to Newco
promptly after the Closing.
8.8 Insurance. So long as Parent has any indemnification obligations
under Section 10.1 hereof, Parent shall or Parent shall require Newco to
maintain in effect insurance coverage with substantially similar coverage limits
as are contained in the policies described as items 1 and 2 on Schedule 3.21 to
the EDS Merger Agreement.
SECTION 9. TERMINATION AND ABANDONMENT.
9.1 Methods of Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Closing:
(a) By the mutual written consent of Seller and Parent;
(b) By Parent, if all of the conditions set forth in Section
8.1 of this Agreement shall not have been satisfied or waived on or
prior to the Closing Date;
(c) By Seller, if all of the conditions set forth in Section
8.3 of this Agreement shall not have been satisfied or waived on or
prior to the Closing Date; or
(d) By Seller or Parent at any time after June 17, 1996.
If this Agreement is terminated pursuant to this Section 9.1, it shall become
null and void and of no further force or effect, except as provided in Section
9.2
9.2 Procedure Upon Termination. In the event of termination and
abandonment of this Agreement by Seller or Parent pursuant to Section 9.1
hereof, written notice thereof shall forthwith be given to the other party or
parties as provided herein and this Agreement shall terminate and the
transactions contemplated hereby shall be abandoned, without further action by
Seller or Parent, and Seller and Parent shall each return to the other party any
documents or copies thereof in possession of such party furnished by such other
party in connection with the transactions contemplated by this Agreement. If
this Agreement is terminated as provided herein, no party to this Agreement
shall have any liability or further obligation to any other party to this
<PAGE>
Agreement with respect to this Agreement or the transactions contemplated hereby
except as provided in this Section 9.2; provided, however, that no termination
of this Agreement pursuant to the provisions of this Section 9 shall relieve any
party of liability for a breach of any provision of this Agreement occurring
prior to such termination.
SECTION 10. INDEMNIFICATION.
10.1 Indemnification.
(a) Seller agrees, to indemnify and hold Parent and Parent's
affiliates, officers, directors and agents harmless from damages, losses or
expenses suffered or paid, directly or indirectly, as a result of any and all
claims, demands, suits, causes of action, proceedings, judgments and
liabilities, including reasonable counsel fees incurred in litigation or
otherwise, assessed, incurred or sustained by or against any of them with
respect to or arising out of the failure of any representation or warranty made
by Seller in this Agreement or in any Schedule delivered pursuant hereto to be
true and correct in all material respects as of the date of this Agreement and
as of the Closing Date or the breach by or nonperformance of Seller of any
covenants contained in this Agreement, provided that the indemnification
covenant contained in this Section will not require Seller to indemnify in
connection with consequential damages sustained by the parties eligible for
indemnification hereunder.
(b) Parent agrees to indemnify and hold Seller and his heirs and
assigns harmless from damages, losses or expenses suffered or paid, directly or
indirectly, as a result of any and all claims, demands, suits, causes of action,
proceedings, judgments and liabilities, including reasonable counsel fees
incurred in litigation or otherwise, assessed, incurred or sustained by or
against any of them with respect to or arising out of (i) the failure of any
representation or warranty made by Parent in this Agreement to be true and
correct in all material respects as of the date of this Agreement and as of the
Closing Date or (ii) the breach by or nonperformance of Parent of any covenants
contained in this Agreement, including without limitation Sections 8.6, 8.7 and
8.8, provided that the indemnification covenant contained in this Section will
not require Seller to indemnify in connection with consequential damages
sustained by the parties eligible for indemnification hereunder.
(c) The party indemnified hereunder (the "Indemnified Party") shall
notify in writing the indemnifying party (the "Indemnifying Party") within (i)
60 days after a claim is presented to the Indemnified Party or the Indemnified
Party becomes aware of substantial facts that would reasonably appear to the
Indemnified Party to be likely to give rise to a claim for indemnity hereunder,
or (ii) five days if the Indemnified Party receives formal notice of the filling
of a suit, petition or claim or the scheduling of a hearing related to a matter
which may give rise to claim for indemnity hereunder. The Indemnifying Party
shall promptly defend, settle, compromise or litigate such claim in good faith.
If the Indemnifying Party does not promptly defend, settle, compromise or
litigate such claim in good faith, the Indemnified Party may do so without the
Indemnifying Party's participation, in which case the Indemnifying Party may
settle or compromise such claim without the Indemnifying Party's consent. If the
Indemnified Party fails to notify the Indemnifying Party of claim in accordance
with the terms of this Section, and the Indemnifying Party is thereby materially
prejudiced by such failure of notice in its defense of the claim, the
Indemnifying Party's obligation to indemnify hereunder shall be extinguished
with respect to such claim to the extent that the Indemnifying Party has been
prejudiced by the failure to give such notice.
(d) The Indemnified Party shall not be entitled to indemnification for
any claim until the aggregate amount of claims hereunder exceeds $20,000.00 (the
"Threshold Amount"), and then the Indemnified Party may only recover the amount
in excess of the Threshold Amount. Prior to seeking indemnification hereunder
the parties must first utilize proceeds available from relevant insurance
policies of the Indemnified Party or Newco if Newco is the Indemnified Party. In
addition, the Indemnifying Party's obligation under this Section 10.1 shall not
exceed $290,664.00.
(e) Notwithstanding the foregoing, Seller may claim a breach of Section
10.1(b) and may seek indemnification hereunder, without regard to the Threshold
Amount, if Parent breaches Section 8.6, 8.7 or 8.8.
<PAGE>
(f) The obligations of under this Section 10.1 shall survive the
Closing for a period of two years. The rights and remedies provided under this
Section 10.1 shall be exclusive of any other rights and remedies to which any of
the Indemnified Parties may be entitled under this Agreement or otherwise at law
or in equity.
SECTION 11. GENERAL PROVISIONS.
11.1 Survival of Provisions. The respective representations,
warranties, covenants and agreements of each of the parties to this Agreement
(except covenants and agreements which are expressly required to be performed
and are performed in full on or prior to the Closing Date) shall survive the
Closing Date and the consummation of the transactions contemplated by this
Agreement for a period of two years. In the event of a breach of any of such
representations and warranties, the party to whom such representations and
warranties have been made shall have all rights and remedies for such breach
available to him under the provisions of this Agreement or otherwise, whether at
law or in equity, regardless of any disclosure to, or investigation made by or
on behalf of such party on or before the Closing Date.
11.2 Publicity. So long as this Agreement shall be in effect, neither
Seller nor Parent shall issue or cause the publication of any press release or
other announcement with respect to this Agreement or the transactions
contemplated hereby without the consent of the other party, which consent shall
not be withheld where such release or announcement is required by applicable
law.
11.3 Successors and Assigns. This Agreement shall inure to the benefit
of, and be binding upon, the parties hereto and their respective successors and
assigns; provided, however, that neither party shall assign or delegate this
Agreement or any of the rights or obligations created hereunder without the
prior written consent of the other party. Notwithstanding the foregoing, Parent
shall have the unrestricted right to assign this Agreement and all or any part
of his rights hereunder and to delegate all or any part of its obligations
hereunder to any affiliate of Parent, but in such event Parent shall remain
fully liable for the performance of all of such obligations in the manner
prescribed in this Agreement. Nothing in this Agreement shall confer upon any
person, firm or corporation not a party to this Agreement, or the legal
representatives of such person, firm or corporation, any rights or remedies of
any nature or kind whatsoever under or by reason of this Agreement.
11.4 Brokers and Finders. Each of parties represents and warrants to
the other that he has not engaged any broker, finder or investment banker in
connection with the transactions contemplated by this Agreement. Each of Parent
and Seller agrees to indemnify and hold harmless the other against any brokerage
fee, commission, finder's fee, or financial advisory fee due to any person, firm
or corporation acting on his behalf in connection with the transactions
contemplated by this Agreement.
11.5 Expenses. Except as otherwise expressly provided in this
Agreement, including, without imitation, the obligations set forth in Section
8.6, all legal and other fees, costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such fees, costs or expenses.
11.6 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been given or
made if in writing and delivered personally or sent by registered or certified
mail (postage prepaid, return receipt requested) to the parties at the following
addresses:
<PAGE>
1. if to Seller, to:
John W. Norris, M.D.
71 South Second Street
South Orange, New Jersey 07070
with a copy to:
Nixon, Hargrave Devans & Doyle, LLP
990 Stewart Avenue
Garden City, New York 11530
Attn: Michael J. Taubin
2. if to Parent, to:
LaserSight Incorporated
12161 Lackland Road
St. Louis, Missouri 63146
Attn: Chief Executive Officer
with a copy to:
Sonnenschein Nath & Rosenthal
One Metropolitan Square
Suite 3000
St. Louis, Missouri 63102
Attn: Alan Bornstein
or to such other persons or at such other addresses as shall be furnished by
either party by like notice to the other, and such notice or communication shall
be deemed to have been given or made as of the date so delivered or mailed.
11.7 Entire Agreement. This Agreement, together with the exhibits
hereto, represents the entire agreement and understanding of the parties with
reference to the transactions set forth herein and no representations or
warranties have been made in connection with this Agreement other than those
expressly set forth herein or in the exhibits, certificates and other documents
delivered in accordance herewith. This Agreement supersedes all prior
negotiations, discussions, correspondence, communications, understandings and
agreements between the parties relating to the subject matter of this Agreement
and all prior drafts of this Agreement, all of which are merged into this
Agreement.
11.8 Waivers and Amendments. Each of Parent and Seller may by written
notice to the other (a) extend the time for the performance of any of the
obligations or other actions of the other; (b) waive any inaccuracies in the
representations or warranties of the other contained in this Agreement; (c)
waive compliance with any of the covenants of the other contained in this
Agreement; (d) waive performance of any of the obligations of the other created
under this Agreement; or (e) waive fulfillment of any of the conditions to his
own obligations under this Agreement. The waiver by any party hereto of a breach
of any provision of this Agreement shall not operate or be construed as a waiver
of any subsequent breach. This Agreement may be amended, modified or
supplemented only by a written instrument executed by the parties hereto.
11.9 Severability. This Agreement shall be deemed severable, and the
invalidity or unenforceability of any term or provision hereof shall not affect
the validity of enforceability of this Agreement or of any other term or
provision hereof.
11.10 Article and Section Headings. The Article and Section headings
contained in this Agreement are solely for convenience of reference and shall
not affect the meaning or interpretation of this Agreement or of any term or
provision hereof.
11.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
<PAGE>
11.12 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have duly executed this Asset
Purchase Agreement as of the date and year first above written.
SELLER: Parent:
LASERSIGHT INCORPORATED
/s/John W. Norris /s/Michael R. Farris
- ------------------------------ By:-----------------------------
John W. Norris, M.D. Chief Executive Officer
Its:----------------------------
<PAGE>
Exhibit A
PROMISSORY NOTE
$340,000.00 _____________, 1996
FOR VALUE RECEIVED, the undersigned promises to pay JOHN W. NORRIS,
M.D. the principal sum of Three Hundred Forty Thousand Dollars ($340,000.00)
plus interest at the rate herein described. The principal sum of this Note and
interest accrued thereon from the date hereof shall be paid in one (1)
installment on June 14, 1996. Interest shall be charged on the unpaid principal
until the full amount of principal has been paid at an annual rate of 5.05%.
Payments of principal and interest accrued hereon shall be made either
(i) via a wire transfer to an account designated by Norris, or (ii) via
certified check delivered to 19 Robin Hill Road, North Caldwell, New Jersey
07006, or such other place which the holder of this Note may from time to time
shall direct in writing.
At the option of the undersigned, all or any portion of the principal
sum due on this Note may be prepaid without premium or penalty.
If default be made in the payment of all or a part of the principal and
interest accrued thereon when due (i) the holder of this Note may, at the option
of said holder, declare all unpaid indebtedness evidenced by the Note
immediately due and payable, and if this Note is turned over to attorneys for
collection, the undersigned maker agrees to pay all costs of collection,
including reasonable attorneys' fees and court costs, and (ii) the unpaid
principal balance hereof shall bear interest at a rate of 10% until paid in
full.
The maker of this Note hereby waives presentment, demand for payment,
notice of dishonor, protest, notice of protest and all other notices or demands
in connection with delivery, acceptance and performance of this Note. The
parties acknowledge and agree that the undersigned shall have no right of offset
against amounts due pursuant to the terms of this Note.
If any provision of this Note or the application thereof is held
invalid or unenforceable, the remainder of this Note will not be affected
thereby and the provisions of this Note shall be severable in any such instance.
No waiver of any term, provision or condition of this Note, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be, or
shall constitute a waiver of any other provision hereof, whether or not similar,
nor shall such waiver constitute a continuing waiver, and no waiver shall be
binding unless executed in writing by the party making the waiver.
This Note has been executed under and shall be governed by the laws of
the State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Note as of the
day and year first above written.
LASERSIGHT INCORPORATED
By:--------------------------
Title:-----------------------
<PAGE>
Exhibit B
BILL OF SALE
THIS BILL OF SALE, dated as of ____________, 1996, from JOHN W. NORRIS,
M.D. ("Seller"), to LASERSIGHT INCORPORATED, a Delaware corporation ("Parent").
WHEREAS, Seller has agreed, pursuant to the terms of the Asset Purchase
Agreement dated as of April 18, 1996 by and between Parent and Seller (the
"Purchase Agreement"), to sell, assign, transfer and convey unto Parent the
Assets, as that term is defined in the Purchase Agreement;
NOW, THEREFORE, in consideration of the payment of the Purchase Price,
as that term is defined in the Purchase Agreement, the receipt and sufficiency
of which is hereby acknowledged, and intending to be legally bound;
Seller does hereby assign, transfer, convey and deliver to Parent, free
and clear of all liens, pledges, claims, charges, security interests or
encumbrances of any nature whatsoever, all of Seller's right, title and
interest, legal and equitable, in and to the Assets.
Seller warrants to Parent that on the date hereof, Seller is the true
and lawful owner of the Assets, holds good and marketable title in and to all of
the Assets, has full power and authority to sell and convey the same, in each
case free and clear of all liens.
Seller shall at any time and from time to time, execute and deliver to
Parent all other and further agreements, assignments, conveyances, deeds and
other instruments necessary or desirable to vest in Parent full right, title and
interest in or to any of the property or other interest in property which this
instrument purports to transfer to Parent.
Seller shall indemnify and hold Parent harmless, pursuant to the terms
of the Purchase Agreement, from and against any and all liabilities,
obligations, claims, damages, costs and expenses, including costs and reasonable
attorneys fees, related to or arising from any third party claim that Parent is
not vested with full legal title the Assets.
This Bill of Sale shall be construed under the laws of the State of New
York.
IN WITNESS WHEREOF, Seller has caused this instrument to be executed by
its duly authorized officer the day and year first above written.
--------------------------
John W. Norris, M.D.
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AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT TO ASSET PURCHASE AGREEMENT ("Amendment") is entered
into and is effective as of June 17, 1996, by and between LASERSIGHT
INCORPORATED, a Delaware corporation ("Parent"), and JOHN W. NORRIS, M.D.
(the "Seller").
R E C I T A L S
WHEREAS, Parent, and the Seller entered into an Asset Purchase
Agreement dated as of April 18, 1996 (the "Agreement");
WHEREAS, Parent and the Seller desire to amend certain provisions of
the Agreement as provided for herein.
NOW, THEREFORE, the parties agree as follows:
1. Section 3.1(a) of the Agreement shall be deleted and the following
shall be inserted in its place:
(a) Cash or Promissory Note. At the Closing Parent shall deliver to
Seller Three Hundred Forty Thousand Dollars ($340,000.00) in cash or by a
certified or official bank check payable to the order of Seller (the "Cash
Payment") or a Promissory Note (the "Note") payable to Seller in the form
of Exhibit A hereto in the principal amount of Three Hundred Forty Thousand
Dollars ($340,000.00), as the parties may mutually agree.
2. Section 5.1 of the Agreement shall be deleted and the following
shall be inserted in its place:
5.1 Closing Date. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place on the earlier of (i) July 15,
1996, (ii) if the conditions set forth in Section 6.2(n) of the EDS Merger
Agreement (as defined herein) have been satisfied, on such earlier date as
Parent and the Stockholders shall mutually agree, or (iii) on such other
date as Parent and the Stockholders shall mutually agree, at the offices of
Sonnenschein, Nath & Rosenthal, 1221 Avenue of the Americas, 24th Floor,
New York, New York 10020, or at such other place as the parties shall
agree, and shall be effective as of the Effective Time (the "Closing
Date").
3. The date "June 17, 1996" referenced in Section 9.1(d) of the
Agreement shall be deleted and the date "July 15, 1996" shall be inserted in its
place.
4. The date "June 14, 1996" referenced in the first paragraph of
Exhibit A to the Agreement shall be deleted and the date "September 13, 1996"
shall be inserted in its place.
5. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall be considered
one and the same amendment.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment to Asset Purchase Agreement as of the date and year first above
written.
SELLER: PARENT:
LASERSIGHT INCORPORATED
/s/John W. Norris /s/Michael R. Farris
By:--------------------------- By:------------------------------
John W. Norris, M.D. Chief Executive Officer
Its:-----------------------------
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EXHIBIT 2.(viii)
LIST OF OMITTED SCHEDULES
EDS from Exhibit 2.(i)
Schedule Description
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3.2 Capitalization of the Company
3.5 No Violation
3.7 Financial Statements
3.9 Tax Matters
3.12 Leases
3.13 Personal Property
3.14 Trademarks, Tradenames, etc.
3.15 Permits and Licenses
3.17 Litigation
3.18 Contracts
3.20 Employee Plans
3.21 Insurance
3.24 Ownership Interests of Interested Persons
3.26 Banking Relations and Compensation
CHI from Exhibit 2.(iv)
Schedule Description
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3.5 Violations
3.7 Financial Statements
3.9 Audits
3.12 Leases
3.13 Personal Property
3.14 Trademarks, services marks, tradenames, patents,
copyrights, trade secrets and proprietary know-how
3.15 Licenses, permits, franchises, authorizations
and approvals issued or granted to the Company
3.17 Litigation
3.18 Contracts
3.21 Insurance Policies
3.24 Transactions with Directors, Officers & Affiliates
3.26 Banking Relations
Assets from Exhibit 2.(vi)
Schedule Description
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1 List of Assets
