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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ______)*
LASERSIGHT INCORPORATED
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock
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(Title of Class of Securities)
517924106
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(CUSIP Number)
Frederic B. Kremer
200 Mall Boulevard
King of Prussia, PA 19406
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(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
July 29, 1997
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|.
Check the following box if a fee is being paid with this statement |_|. (A fee
is not required only if the filing person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7).
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
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CUSIP No. 517924106 Page 2 of 7 Pages
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1 NAME OF REPORTING PERSON
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Frederic B. Kremer
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
00
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
N/A
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6 CITIZENSHIP OR PLACE OR ORGANIZATION
USA
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NUMBER OF | 7 | SOLE VOTING POWER
SHARES | | 336,385
BENEFICIALLY | 8 | SHARED VOTING POWER
OWNED BY | | 0
EACH | 9 | SOLE DISPOSITIVE POWER
REPORTING | | 336,385
PERSON WITH | 10 | SHARED DISPOSITIVE POWER
| | 0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
336,385
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
See response to Item 5 below.
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.4%
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14 TYPE OF REPORTING PERSON*
IN
- ------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
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SCHEDULE 13D
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CUSIP No. 517924106 Page 3 of 7 Pages
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1 NAME OF REPORTING PERSON
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Linda Kremer
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
00
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
N/A
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6 CITIZENSHIP OR PLACE OR ORGANIZATION
USA
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NUMBER OF | 7 | SOLE VOTING POWER
SHARES | | 206,890
BENEFICIALLY | 8 | SHARED VOTING POWER
OWNED BY | | 0
EACH | 9 | SOLE DISPOSITIVE POWER
REPORTING | | 206,890
PERSON WITH | 10 | SHARED DISPOSITIVE POWER
| | 0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
206,890
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
See response to Item 5 below.
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.1%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
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1. Security and Issuer.
This Statement relates to the common stock ("Common Stock") of
LaserSight Incorporated, a Delaware corporation (the "Issuer"). The address of
the Issuer's principal executive offices is 12161 Lackland Road, St. Louis, MO
63146.
2. Identity and Background.
(a) Name. This Statement is being filed by Frederic B. Kremer ("FK")
and Linda Kremer ("LK"). FK and LK are husband and wife. The filing of this
Statement shall not be construed as an admission that either FK or LK is, for
the purposes of Section 13(d) or 13(g) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), the beneficial owners of any securities covered
by this Statement or that this schedule is required to be filed by such persons
.
(b) Business Address. The business address for each of FK and LK is 200
Mall Boulevard, King of Prussia, PA 19406.
(c) Present Principal Occupation or Employment. FK is an
ophthalmologist and President of Eyes of the Future, P.C. ("Eyes"), 200 Mall
Boulevard, King of Prussia, PA 19406. LK is the Operations Manager of Eyes.
(d) Criminal Convictions. During the last five years, neither FK nor LK
has been convicted in a criminal proceeding, excluding traffic violations and
similar misdemeanors.
(e) Court or Administrative Proceedings. During the last five years,
neither FK nor LK has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which either of
them were or are subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
(f) Citizenship. Both FK and LK are citizens of the United States of
America.
3. Source and Amounts of Funds and Other Consideration.
Pursuant to the terms of an Agreement and Plan of Merger dated July 15,
1997, by and among PhotoMed, Inc., a Pennsylvania corporation ("PhotoMed"), FK,
LK, Robert Satalof, trustee for Mark Adam Kremer u/t/a dated December 27, 1991
and Robert Satalof, trustee for Alan Stewart Kremer u/t/a dated December 27,
1991 (collectively, the "Trusts"), Issuer and Issuer's wholly-owned subsidiary,
PhotoMed Acquisition, Inc., under which PhotoMed merged into PhotoMed
Acquisition, Inc., FK acquired 206,890 shares of the Common Stock of Issuer, LK
acquired 206,890 shares of the Common Stock of Issuer and the two Trusts
established for the benefit of FK and LK's minor children acquired an aggregate
of 17,240 shares (the "Trust Shares") of the Common Stock of Issuer.
Page 4 of 7
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A third party trustee under the Trusts has sole voting and sole dispositive
power with respect to all of the Trust Shares, and FK and LK each disclaim
beneficial ownership with respect to all of the Trust Shares.
Pursuant to the terms of a Patent Purchase Agreement dated July 15,
1997, between FK and Issuer, under which FK sold to Issuer all of his right,
title and interest in a certain patent, FK acquired 104,495 shares of the Common
Stock of Issuer.
Pursuant to the terms of a Consulting Agreement dated July 15, 1997,
between FK and Issuer, under which FK will provide consulting services to
Issuer, FK received from Issuer an option to acquire 25,000 shares of the Common
Stock of Issuer, which is exercisable within 60 days from the date of this
Statement.
4. Purpose of Transaction.
The acquisition of the shares of Common Stock of Issuer by FK and LK is
for investment purposes.
Neither FK nor LK has any present plans or proposals which relate to or
would result in any of the following:
(a) the acquisition by any person of additional securities of the
Issuer, or the disposition of securities of the Issuer;
(b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Issuer or any of its subsidiaries;
(c) a sale or transfer of a material amount of assets of the Issuer or
any of its subsidiaries;
(d) any change in the present board of directors or management of the
Issuer, including any plans or proposals to change the number or term of the
directors or to fill any existing vacancies of the board;
(e) any material change in the present capitalization or dividend
policy of the Issuer;
(f) any other material change in the Issuer's business or corporate
structure;
(g) changes in the Issuer's charter, bylaws or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the Issuer by any person;
(h) causing a class of securities of the Issuer to be delisted from a
national securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association;
Page 5 of 7
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(i) a class of eligible equity securities of the issuer becoming
eligible for termination of registration pursuant to Section 12(g)(4) of the
Exchange Act; or
(j) any action similar to those enumerated above.
5. Interest in Securities of the Issuer.
(a) As of the date hereof, (i) FK may be deemed to be the beneficial
owner of 336,385 shares of Issuer's Common Stock, which represents 3.4% of
Issuer's outstanding Common Stock, and (ii) LK may be deemed to be the
beneficial owner of 206,890 shares of Issuer's Common Stock, which represents
2.1% of Issuer's outstanding Common Stock.
(b) Each of FK and LK have sole voting and sole dispositive power with
respect to the shares of Common Stock beneficially owned by each of them. This
Statement is being filed because FK and LK are husband and wife and share the
same household, and if FK and LK are deemed to beneficially own the shares of
Issuer's Common Stock beneficially owned by the other, then the aggregate amount
of shares of Issuer's Common Stock beneficially owned by them collectively would
represent 5.4% of Issuer's outstanding Common Stock; however, the filing of this
Statement shall not be construed as an admission that either FK or LK is, for
the purposes of Section 13(d) or 13(g) of the Exchange Act, the beneficial
owners of any securities owned by the other or that this schedule is required to
be filed by such persons.
(c) Except as described in Item 3 above, neither FK or LK owns
beneficially any shares of Common Stock of Issuer or has effected any
transaction in shares of Common Stock of Issuer during the 60 days preceding the
date of this Statement.
(d) No person other than FK or LK is known to FK or LK to have the
right to receive or the power to direct the receipt of dividends from, or the
proceeds from the sale of, the shares of Common Stock beneficially owned by each
of them.
(e) Not applicable.
6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
Other than as indicated elsewhere in this Statement, to the best
knowledge of FK and LK, neither FK nor LK is a party to any contract,
arrangement, understanding, or relationship (legal or otherwise) with any person
with respect to any securities of the Issuer, including but not limited to, the
transfer or voting of any of the Issuer's securities, finder's fees, joint
ventures, loan or option arrangements, puts or calls, guarantees of profits,
division of profits or loss, or the giving or withholding of proxies.
Page 6 of 7
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7. Material to be Filed as Exhibits:
Exhibit A: Consulting Agreement dated July 29, 1997, between FK and
Issuer.
Exhibit B: Agreement dated August 6, 1997, between FK and LK.
Signatures:
After reasonable inquiry and to the best of each of the undersigned's
knowledge and belief, the undersigned certify that the information set forth in
this statement is true, complete and correct.
Date: August 6, 1997
/S/ Frederic B. Kremer
-------------------------------
FREDERIC B. KREMER
/S/ Linda Kremer
-------------------------------
August 6, 1997 LINDA KREMER
Page 7 of 7
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EXHIBIT A
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made as of the 29th day of
July, 1997, by and between LASERSIGHT INCORPORATED, a Delaware corporation
("LaserSight"), and FREDERIC B. KREMER, M.D. ("Kremer").
RECITALS
A. LaserSight, Photomed, Inc., Kremer and the other shareholders of
Photomed, Inc. have entered into an Agreement and Plan of Merger dated as of the
date of this Agreement (the "Merger Agreement").
B. LaserSight is engaged in the business of developing, manufacturing
and distributing ophthalmic laser equipment, devices and related technology (the
"Business").
C. LaserSight desires to utilize the knowledge, expertise and
experience of Kremer to assist in the conduct of the Business.
THEREFORE, in consideration of the premises and the covenants and
agreements herein set forth, the parties hereto agree as follows:
1. Consulting Services. Kremer shall serve as a business consultant to
LaserSight for the period commencing on the date hereof and continuing through
the first anniversary of the date hereof (the "Consulting Term"); provided,
however, Kremer's obligations under Section 1(h) shall continue until FDA
Approval (as defined in the Merger Agreement) is obtained or the Termination
Date (as defined in the Merger Agreement) has occurred. During the Consulting
Term, Kremer, at times mutually convenient to Kremer and LaserSight, shall use
his reasonable efforts to perform the following services on behalf of LaserSight
(the "Consulting Services"):
(a) assisting LaserSight in the development and implementation
of a strategy to achieve the approval of the premarket approval
application ("PMA") for a refractive laser to be utilized in connection
with the performance of LASIK procedures (the "Laser");
(b) assisting LaserSight in the development of clinical
protocols and procedures for utilization in connection with LASIK
procedures to support the PMA;
(c) assisting LaserSight in the preparation of materials and
presentations to be made to the FDA advisory panel in connection with
the Laser's PMA;
(d) assisting LaserSight in its interaction with the FDA;
(e) assisting LaserSight in obtaining the FDA's approval for
the use of laser technology in connection with the treatment of
hyperopia;
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(f) assisting LaserSight in developing clinical protocols for
utilizing laser technology in connection with the treatment of
hyperopia;
(g) assisting LaserSight in obtaining the FDA's approval for
the commercial sale and distribution of LaserSight's refractive
scanning laser; and
(h) providing LaserSight from time to time, as determined by
Kremer, with information related to the development and submission of
information to the FDA regarding the PMA.
LaserSight acknowledges that Kremer has a full-time ophthalmology and laser
surgery practice in the Philadelphia area and other substantial business
interests which require his full efforts and that it is not contemplated by this
Agreement that Kremer shall be required to reduce or otherwise interfere with
his practice or other business interests in order to perform his services
hereunder.
2. Consideration for Consulting Services. As consideration for the
Consulting Services to be performed hereunder, Kremer shall be paid as follows:
(a) Cash. Upon the execution of this Agreement, LaserSight
shall deliver to Kremer $50,000.00 in the form of a LaserSight bank
check payable to the order of Kremer (the "Cash Payment");
(b) LaserSight Common Stock. LaserSight hereby grants to
Kremer the option to acquire 25,000 shares of validly issued, fully
paid and nonassessable common stock, $.001 par value, of LaserSight
("LaserSight Common Stock") in accordance with the terms and conditions
of LaserSight's 1996 Equity Incentive Plan, including, without
limitation, the fact that the price at which Kremer may exercise such
options shall be the closing price on the later of (i) the date hereof,
or (ii) on the day the LaserSight Stock Option Committee approves the
grant of such options; and
(c) Royalties. During the period commencing on the date that
LaserSight first sells a refractive laser which was manufactured by or
for LaserSight and sold for use within the United States (the
"Commencement Date") and ending on the first to occur of (i) the
expiration of the 12 month period immediately following the
Commencement Date, or (ii) March 31, 1999, LaserSight shall pay Kremer,
or his designee, a royalty equal to 25% of the gross sales price of any
refractive laser which was manufactured by or for LaserSight and sold
for use within the United States, provided that Kremer, or his
designee, will not be eligible to receive any payments pursuant to this
Section 2(c) until such time as aggregate gross sales of refractive
lasers which were manufactured by or for LaserSight and sold for final
use within the United States exceeds $14,000,000.00. LaserSight shall
use its reasonable best efforts to (i) obtain all necessary
governmental and other approvals to permit it to manufacture and sell a
refractive laser in the United States as soon as reasonably possible,
and (ii) manufacture and sell such a laser in the United States as soon
as reasonably possible.
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For purposes of determining when a royalty commission is
payable under this Section 2(c), LaserSight will consider a refractive
laser sold when (i) a definitive contract to purchase has been executed
by all relevant parties or, if earlier, shipment of a laser, (ii) a
definitive contract to lease a laser has been executed by all relevant
parties (in which case LaserSight shall calculate the royalty due under
this Section 2(c) based on the actual funds LaserSight receives from
transferring all rights in such lease to a third party, or if
LaserSight directly leases the laser to a third party, then the royalty
shall be calculated on actual funds LaserSight periodically receives
pursuant to such lease and LaserSight shall pay such royalty as funds
are actually received by LaserSight even if LaserSight receives
payments after the date on which royalty payments are to cease pursuant
to the first paragraph of this Section 2(c)), or (iii) a definitive
contract to lease a laser on a per procedure or other basis has been
executed by all relevant parties (in which case LaserSight shall
calculate the royalty due under this Section 2(c) based on either (A)
the actual funds LaserSight periodically receives for each procedure
and LaserSight shall pay such royalty as funds are actually received by
LaserSight pursuant to such per procedure lease (even if LaserSight
receives payments in connection with such per procedure lease after the
date on which royalty payments are to cease pursuant to the first
paragraph of this Section 2(c)), or (B) the then current list price of
the laser subject to such lease and LaserSight shall pay the full
amount of such royalty on the first date LaserSight receives payment
pursuant to such lease (even if LaserSight receives payment in
connection with such per procedure lease after the date on which
royalty payments are to cease pursuant to the first paragraph of this
Section 2(c)). Within 30 days after the execution of a per procedure
lease LaserSight shall notify Kremer as to what method will be utilized
to determine the royalty payable to Kremer in connection with such
lease.
Within 60 days after the end of each of LaserSight's fiscal
quarters which commence after the Commencement Date, LaserSight will
(i) provide Kremer with a statement setting forth the amount of sales
of refractive lasers which were manufactured by or for LaserSight and
sold in the United States within the prior quarter and cumulative for
all prior applicable periods, and (ii) deliver to Kremer, or his
designee, a LaserSight check in the amount of any royalties then due
with respect to the immediate prior quarter. LaserSight shall keep,
maintain and preserve during the Consulting Term, and for a period of
one (1) year immediately thereafter (or such longer time, if
applicable, until any existing dispute regarding the royalty is finally
resolved, without further right of appeal), complete and accurate
books, accounts, records and other materials used to calculate the
royalty payments described in this Section 2(c) in a manner such that
the information contained in the statements referred to in this Section
2(c) may be readily determined. Kremer and/or his duly authorized
representatives, shall have the right to inspect and audit such
materials during reasonable business hours and upon at least
forty-eight (48) hours notice by Kremer and/or his representatives. If
Kremer's (or his representative's) inspection and audit reveals that a
miscalculation has been made in the amount of the royalty, Kremer shall
promptly receive from LaserSight (i) payment of the royalty amount that
had been miscalculated by LaserSight, (ii) interest thereon at the
prime interest rate most recently announced in the Wall Street Journal
plus four percent (4%) per annum from
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the date the payment should have originally been made, and (iii)
reimbursement for all reasonable costs and expenses incurred by Kremer
in determining the miscalculation and collecting the amount due
(including, without limitation, reasonable legal fees and costs). If it
is determined by a court of competent jurisdiction, or other neutral
party chosen by the parties to resolve the dispute, that there was no
miscalculation of the royalty, notwithstanding Kremer's assertion to
the contrary, then Kremer will reimburse LaserSight for all reasonable
costs and expenses incurred by LaserSight in connection with Kremer's
inspection and audit (including, without limitation, reasonable legal
fees and costs).
3. Restrictive Covenant. In consideration of the receipt of the
payments hereunder, Kremer agrees that during the Consulting Term and for a
period of 2 years immediately following the termination of this Agreement for
any reason (the "Noncompete Term"), Kremer shall not, without the prior written
consent of LaserSight, directly or indirectly, as a stockholder, partner,
officer, director, independent contractor, consultant, employee, agent or
otherwise:
(a) engage in the business of the manufacture, sale or
distribution in the United States of excimer refractive lasers or
microkeratomes, or endorse, or allow his name to be utilized in
connection with, an excimer refractive laser manufactured or
distributed by a competitor of LaserSight;
(b) purposefully interfere or attempt to interfere with any of
LaserSight's agreements, contracts or business relationships
(regardless of whether these agreements or contracts are in writing or
verbal but only if these agreements, contracts or business
relationships are known to Kremer), provided that the operation of
Centers (as defined in the Merger Agreement) by Kremer or a Kremer
Affiliate (as defined in the Merger Agreement) will not be deemed a
violation of this Section unless in connection therewith he tortiously
interferes with any of LaserSight's agreements, contracts or business
relationships which are known to Kremer; and
(c) purposefully interfere with the business relationship of
or solicit the business or orders of (A) any customer of LaserSight, or
(B) a prospective or potential customer of LaserSight for the purposes
of selling excimer refractive lasers or microkeratome to such
customers; and
Notwithstanding anything else contained in this Section 3, Kremer may
own, for investment purposes only, up to five percent (5%) of the stock of any
publicly-held corporation whose stock is either listed on a national stock
exchange or on the NASDAQ National Market System, provided that Kremer is not
otherwise affiliated with such corporation and Kremer or any Kremer Affiliate
may sell or lease excimer refractive lasers for LASIK procedures to any other
Kremer Affiliate as long as such excimer refractive laser was purchased or
leased from LaserSight if the terms and conditions of sale by LaserSight are
generally equivalent to that of competitors offering similar lasers for sale or
lease. Furthermore, notwithstanding anything to the contrary, Kremer or any
Kremer Affiliate may, in any capacity, be engaged in the business of providing
laser eye surgery services to the public, including, but not limited to, as an
owner or manager of such business.
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If pursuant to Section 2.2(b) of the Merger Agreement Kremer delivers
the Unwind Shares to LaserSight, then Kremer shall not be bound by the
restrictions contained in this Section 3.
4. Intellectual Property. Kremer acknowledges and agrees that in
consideration for the payments to be received hereunder all creative works
Kremer produces in connection with the Consulting Services performed hereunder
which relate to the field of refractive surgery and LaserSight's actual or
demonstrably anticipated research or development in such field, including,
without limitation, any invention, formula, pattern, compilation, computer
program (and related documentation and source code), device, method, technique,
drawing, process or other intellectual property or property right, shall be
considered to have been prepared for LaserSight as a part of and pursuant to
this Agreement. Kremer shall disclose to LaserSight the existence of such works
when he becomes aware of their existence, and Kremer hereby grants to LaserSight
the option to acquire any and all proprietary interests in any such work for a
period of 60 days after LaserSight receives notice from Kremer of any such
works' existence. If LaserSight and Kremer are unable to enter into a binding
agreement within such 60 day period, Kremer may transfer such property to a
third party, provided that prior to consummating such a transfer, Kremer must
give LaserSight notice of such intent to transfer which will contain the name of
the proposed transferee and all material terms of such transfer. LaserSight will
have 10 days in which to notify Kremer that it will match the terms of the
proposed transfer, and if LaserSight so elects, the parties shall use their good
faith efforts to finalize such a transfer to LaserSight within 10 days of
LaserSight's notice.
5. Place of Performance. Kremer shall provide the Consulting Services
described hereunder at such location or locations as may be reasonably and
mutually determined by Kremer and LaserSight from time to time; provided,
however, it is presently contemplated that substantially all of his consulting
services will be provided from Kremer's various places of business in and around
the Philadelphia area, and, to the extent necessary, in the Washington, D.C.
metropolitan area in connection with the presentation to the Food and Drug
Administration panel which may be assigned to review the Pre-Market Approval for
excimer laser relating to LASIK procedures which LaserSight intends to obtain.
Kremer also may provide services by telephone.
6. Expenses. LaserSight will reimburse Kremer for all business travel
expenses reasonably incurred by Kremer in connection with all trips taken at the
request of LaserSight provided that expenses in excess of $500.00 be
pre-approved by LaserSight. Kremer shall maintain such records as LaserSight
reasonably determines appropriate to document all expenses paid for or
reimbursed hereunder in accordance with LaserSight's general policies for
reimbursement.
7. Remedies. In the event of a breach by Kremer of any of the
provisions of this Agreement, LaserSight, in addition and as a supplement to
such other rights and remedies as may exist in its favor, may apply to any court
of law or equity having jurisdiction to enforce the specific performance of this
Agreement to the extent traditionally available and/or may apply for injunctive
relief against any act which would violate any of the provisions of this
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Agreement. If LaserSight shall breach this Agreement, Kremer shall have all
rights and remedies available at law or in equity.
8. Notice. Any notice required or permitted hereunder shall be given in
writing and shall be effective for all purposes if hand delivered to the party
designated below, sent via overnight delivery utilizing a nationally recognized
overnight delivery service or placed in the United States mail, postage prepaid,
addressed to the addresses set forth below, or to such other address and persons
as shall be designated from time to time by any party hereto in a written notice
to the other in the manner provided for in this paragraph. The notice shall be
deemed to have been given upon deposit in the United States mail, postage
prepaid, or at the time of delivery if hand delivered. A party receiving notice
which does not comply with the technical requirements for notice under this
paragraph may elect to waive any deficiencies and treat the notice as having
been properly given.
If to Kremer: 200 Mall Boulevard
King of Prussia, Pennsylvania 19406
with a copy to: Blank Rome Comisky & McCauley
Four Penn Center Plaza
Philadelphia, Pennsylvania 19013
Attn: Steven Dubow, Esq.
or, from and after Blank Rome Comisky & McCauley
September 1, 1997 One Logan Square
Philadelphia, Pennsylvania 19103
Attn: Steven Dubow, Esq.
If to LaserSight: LaserSight Incorporated
12161 Lackland Road
St. Louis, Missouri 63146
Attn: Chief Executive Officer
with a copy to: Alan B. Bornstein, Esq.
Sonnenschein Nath & Rosenthal
One Metropolitan Square, Suite 3000
St. Louis, Missouri 63102
Telephone: (314) 241-1800
9. Amendment. This Agreement may only be amended or modified in whole
or in part by an instrument in writing executed in the same manner as this
Agreement and making specific reference thereto.
10. Entire Agreement. This Agreement constitutes the entire agreement
of the parties hereto with respect to Kremer's consulting obligations, covenants
not to compete and the consideration therefor.
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11. Waivers. The failure of any party to enforce at any time any of the
provisions of this Agreement or to require at any time performance by the other
party of any of the provisions hereof shall in no way be construed to be a
waiver of such provisions or to affect either the validity of this Agreement, or
any part hereof, or the right of such party thereafter to enforce each and every
provision in accordance with the terms of this Agreement.
12. Severability. The parties acknowledge that the laws and public
policies of the various states of the United States might differ as to the
validity and enforceability of the covenants contained in Section 3 of this
Agreement. It is the intention of the parties that the activities of Kremer be
restricted only to the extent necessary for the protection of the legitimate
business interests of LaserSight, that the provisions of Section 3 shall, to the
fullest extent permissible under the law and public policy, be enforced by the
courts of each state and jurisdiction in which enforcement is sought, and that
the unenforceability (or the modification necessary to conform the covenants
contained in Section 3 with such law and public policy) of any part of Section 3
shall not be deemed to render unenforceable any other part of Section 3.
Accordingly, if any part of Section 3 shall be adjudicated to be invalid or
unenforceable in any action or proceeding in which Kremer or his heirs or
personal representatives, and LaserSight or its successors or assigns, are
parties, whether in its entirety or as modified as to duration, territory or
otherwise, then such part shall be deemed deleted from this Agreement or
amended, as the case may be, in order to render the remainder of Section 3 valid
and enforceable. Any such deletion or amendment shall apply only where the court
rendering the same has jurisdiction. In addition, the invalidity or
unenforceability of any particular provision of this Agreement shall not affect
the other provisions hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision were omitted.
13. Successors. This Agreement shall be binding upon and shall inure to
the benefit of LaserSight and any assignee of LaserSight which is a wholly owned
subsidiary of LaserSight. This Agreement shall also be binding upon and inure to
the benefit of Kremer and his heirs and personal representatives.
14. Controlling Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Pennsylvania, without regard to such
state's conflict of law provisions.
15. LaserSight Venue. LaserSight hereby irrevocably and unconditionally
consents and submits to the jurisdiction of Pennsylvania courts in connection
with all actions, suits or proceedings filed by Kremer relating to LaserSight's
misrepresentation or breach of the terms of this Agreement. LaserSight
irrevocably waives any objection it may have to the venue of any such action,
suit or proceeding brought in such courts or the convenience of the forum and
LaserSight irrevocably waives the right to proceed in any other jurisdiction.
Final judgment in any such action, suit or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment, a certified or
true copy of which shall be conclusive evidence of the fact and the amount of
any indebtedness or liability of LaserSight therein described. LaserSight agrees
that services of process in any action or proceeding hereunder may be made upon
LaserSight by certified mail, return receipt requested to the address for notice
set forth in Section 8.
7
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16. Kremer Venue. Kremer hereby irrevocably and unconditionally
consents and submits to the jurisdiction of a court chosen by LaserSight from
time to time which has legal jurisdiction over any actions, suits or proceedings
filed by LaserSight relating to Kremer's misrepresentations or breach of the
terms of this Agreement. Kremer irrevocably waives any objection he may have to
the venue of any such action, suit or proceeding brought in such courts or the
convenience of the forum and Kremer irrevocably waives the right to proceed in
any other jurisdiction. Final judgment in any such action, suit or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment, a certified or true copy of which shall be conclusive evidence of the
fact and the amount of any indebtedness or liability of Kremer therein
described. Kremer agrees that services of process in any action or proceeding
hereunder may be made upon Kremer by certified mail, return receipt requested to
the address for notice set forth in Section 8.
16. Indemnification. From and after the date hereof, LaserSight agrees
to indemnify and hold Kremer 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 and other expenses incurred in litigation or otherwise,
assessed, incurred or sustained by or against Kremer with respect to or arising
out of Kremer's performance of the Consulting Services, provided that LaserSight
will not be obligated to indemnify Kremer for (i) Kremer's actions outside of
the scope of the Consulting Services, or (ii) Kremer's willful, wanton or
grossly negligent actions.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed effective as the day and year first above written.
LASERSIGHT INCORPORATED
By: /s/ Michael R. Farris
---------------------------------------
Michael R. Farris
President/Chief Executive Officer
/s/ Frederic B. Kremer
-----------------------------------------
Frederic B. Kremer, M.D.
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EXHIBIT B
AGREEMENT
Agreement, dated August 6, 1997, between Frederic B. Kremer ("FK") and
Linda Kremer ("LK").
Whereas, FK and LK are each required to file a statement on Schedule
13D pursuant to the rules and regulations of the Securities and Exchange
Commission ("SEC") under the Securities Exchange Act of 1934, as amended, with
respect to the securities of LaserSight Incorporated, of which FK and LK may
each deemed to be the beneficial owners pursuant to such rules; and
Whereas, FK and LK have prepared one statement for filing with the SEC
to reflect such beneficial ownership pursuant to such rules.
NOW, THEREFORE, intending to be legally bound hereby, the undersigned
agree that the Statement on Schedule 13D prepared by FK and LK with respect to
the securities of LaserSight Incorporated, when filed with the SEC, will be
filed on behalf of each of FK and LK.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
signed as of the date set forth above.
/S/ Frederic B. Kremer
------------------------------
FREDERIC B. KREMER
/S/ Linda Kremer
------------------------------
LINDA KREMER
