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): October 27, 1999
(October 23, 1999)
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.
3300 University Boulevard, Suite 140, Winter Park, Florida 32792
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Address of Principal Executive offices
Registrant's telephone number, including area code: (407) 678-9900
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Item 5. Other Events
On October 23, 1999, LaserSight entered into a Distribution Agreement with
Becton, Dickinson and Company, pursuant to which Becton, Dickinson will, subject
to limited exceptions, become the exclusive distributor of LaserSight's
MicroShape family of keratome products in the United States, the United Kingdom,
Ireland and Japan. Also on that date LaserSight and Becton, Dickinson also
entered into an amendment to their Manufacturing and Marketing Agreement
pursuant to which Becton, Dickinson manufactures keratome blades for LaserSight.
Copies of the First Amendment to the Manufacturing and Marketing Agreement and
of the Distribution Agreement are attached hereto as exhibits 10.1 and 10.2,
respectively, and are incorporated herein by reference.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits
Exhibit 10.1 ** First Amendment to Manufacturing and Marketing
Agreement, dated October 23, 1999, by and between
LaserSight Technologies, Inc. and Becton, Dickinson
and Company.
Exhibit 10.2 ** Distribution Agreement dated October 23, 1999,
by and between Lasersight Technologies, Inc. and
Becton, Dickinson and Company.
** Confidential treatment has been requested for portions of this document.
The redacted material has been filed separately with the commission
pursuant to an application for confidential treatment.
SIGNATURES
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: October 27, 1999 By: /s/ Michael R. Farris
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Michael R. Farris
Chief Executive Officer
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CONFIDENTIAL TREATMENT REQUESTED
FIRST AMENDMENT TO
MANUFACTURING AND MARKETING AGREEMENT
-------------------------------------
This First Amendment to Manufacturing and Marketing Agreement
("Amendment") is dated October 23, 1999 (the "Effective Date") between BECTON,
DICKINSON AND COMPANY, a New Jersey corporation ("BD") and LASERSIGHT
TECHNOLOGIES, INC., a Delaware corporation ("LASERSIGHT").
RECITALS
A. BD and LASERSIGHT have entered into that certain Manufacturing and
Marketing Agreement effective as of May 14, 1999 (the "Agreement").
B. BD and LASERSIGHT desire to amend certain terms of the Agreement as
provided herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, the parties hereto agree as follows:
1. Definition of BD. For purposes of this Agreement, BD shall mean and
include Becton, Dickinson and Company and its affiliates, including but not
limited to all corporations, partnerships, sole proprietorships and other forms
of business organizations which are controlled by Becton Dickinson and Company,
any corporation in which Becton, Dickinson and Company owns at least 50 percent
of the stock entitled to vote for directors, and any corporation, firm,
partnership, proprietorship or other form of business in which Becton, Dickinson
and Company has the maximum amount of ownership permitted by local law.
2. BD and LASERSIGHT acknowledge and agree and that the meaning of the
terms Product (as defined in the Agreement) and Specifications (as defined in
the Agreement) shall be expanded to include those additional products described
on Exhibit A-1 attached hereto ("Additional Products"), and those additional
specifications described on Exhibit B-1 that will be supplied by BD as soon as
possible after the date of this Amendment.
3. BD and LASERSIGHT acknowledge and agree that the number of
Additional Products purchased by LASERSIGHT during each year of the Agreement
shall be included when determining whether LASERSIGHT has satisfied the Purchase
Minimum (as defined in the Agreement) during each year of the Agreement.
4. Section 1.4 of the Agreement is hereby deleted and the following new
Section 1.4 shall be inserted in its place:
1.4 Other Activities. During the term of this Agreement, BD
agrees to manufacture keratome blades utilized in connection with
performing refractive surgery exclusively for LASERSIGHT. BD shall
not manufacture such keratome blades for any party except
LASERSIGHT. During the term of this Agreement LASERSIGHT shall not
purchase blades utilized in connection with performing refractive
surgery from any party except BD.
** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS DOCUMENT.
THE REDACTED MATERIAL HAS BEEN INDICATED WITH A DOUBLE ASTERISK AND FILED
SEPARATELY WITH THE COMMISSION.
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5. Section 1.6 of the Agreement is deleted in its entirety.
6. Section 2.1 of the Agreement is hereby deleted and the following new
Section 2.1 shall be inserted in its place:
2.1 Pricing. The price per Product is set forth on Exhibit
C-1. These prices are based on LASERSIGHT purchasing the Purchase
Minimum. If LASERSIGHT purchases more than 200,000 Products in any
twelve month period then BD and LASERSIGHT will negotiate in good faith
to reduce the per Product price for the following 12 months provided
that the prior 12 months' purchases become the new purchase minimum
going forward.
If BD develops technology that enhances the value of the Product or
Additional Products, then BD will discuss such technology with
LASERSIGHT and prior to such technology being implemented into the
manufacturing of the Product or Additional Products BD and LASERSIGHT
will negotiate a revision to the prices set forth on Exhibit C-1 for
the effected Product or Additional Products, as applicable.
7. The following new Section 7.3 shall be added to the Agreement:
7.3 Termination by Either Party. After July 1, 2003 either
party may terminate this Agreement with or without cause by providing
at least 180 days advance written notice.
8. Except as specifically set forth herein, all other terms and
conditions of the Agreement shall remain in effect as originally set forth
therein.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed in multiple counterparts, each of which shall be deemed an original
instrument but all of which together shall constitute one and the same document,
by their duly authorized representatives as of the Effective Date.
BECTON, DICKINSON AND COMPANY LASERSIGHT TECHNOLOGIES, INC.
By: /s/Mark C. Throdahl By: /s/Michael R. Farris
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Name: Mark C. Throdahl Name: Michael R. Farris
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Title: Senior Vice President Title Executive Officer/President
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EXHBIT A-1
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Additional Products
1. Hansatome Keratome Blade
2. Moria CB Keratome Blade
3. Moria LSK-1 Keratome Blade
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EXHIBIT B-1
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Additional Specifications
[Engineering Drawings]
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EXHIBIT C-1
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Pricing
Product Per Blade Price
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1. Non-Sterile Keratome Blade **
2. ACS Keratome Blade **
3. Hansatome Keratome Blade **
4. Moria CB Keratome Blade **
5. Moria LSK-1 Keratome Blade **
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CONFIDENTIAL TREATMENT REQUESTED
DISTRIBUTION AGREEMENT
----------------------
THIS DISTRIBUTION AGREEMENT ("Agreement") is made, entered into and
effective as October 23, 1999 (the "Effective Date"), by and between LASERSIGHT
TECHNOLOGIES, INC., a Delaware corporation ("LaserSight"), and BECTON DICKINSON
AND COMPANY, a New Jersey corporation ("BD").
RECITALS:
A. LaserSight is in the business of manufacturing or arranging for the
manufacture of keratomes, keratome products and other refractive surgery
products and accessories.
B. LaserSight desires to engage BD as a distributor of the Products (as
herein defined) to customers in the Territory (as herein defined) on the terms
and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the recitals and mutual promises
and covenants contained in this Agreement, the parties agree as follows:
1. Definition of BD. For purposes of this Agreement, BD shall mean and
include Becton, Dickinson and Company and its affiliates, including but
not limited to all corporations, partnerships, sole proprietorships and
other forms of business organizations which are controlled by Becton
Dickinson and Company, any corporation in which Becton, Dickinson and
Company owns at least 50 percent of the stock entitled to vote for
directors, and any corporation, firm, partnership, proprietorship or
other form of business in which Becton, Dickinson and Company has the
maximum amount of ownership permitted by local law.
2. Engagement of BD. LaserSight hereby engages BD as a distributor of
the products and accessories described on Exhibit A attached hereto
(collectively, the "Products") in the territory described on Exhibit B
attached hereto (the "Territory") during the Term (as defined herein),
and BD hereby accepts such appointment. In accordance with the terms of
this Agreement, LaserSight hereby grants to BD the right to promote,
market, distribute and sell the Products within the Territory. Except
as described in Section 3(a) below, BD agrees not to promote, market,
distribute or sell the Products outside the Territory without
LaserSight's prior written consent, which consent shall not be
unreasonably withheld. Except as may be specifically provided for
herein, BD will not be an agent of LaserSight and will have no
authority to contract for, or act on behalf of, LaserSight.
3. Agreements Regarding Distribution and Sale of Products.
(a) During the Term BD shall have the exclusive right to
distribute the Products in the Territory, provided that BD agrees not
to solicit or take orders for TLC The Laser Center Inc. ("TLC") and its
affiliated corporate centers as listed on Exhibit C (the "Direct
Account") and BD acknowledges that LaserSight may sell Products to the
Direct Account. The parties acknowledge and agree that Exhibit C may be
amended from time by either party providing notice to the other that
TLC has established or closed any corporate centers. If BD develops a
** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS DOCUMENT.
THE REDACTED MATERIAL HAS BEEN INDICATED WITH A DOUBLE ASTERISK AND FILED
SEPARATELY WITH THE COMMISSION.
<PAGE>
kit of instruments and supplies to be utilized in connection with
refractive surgery that includes any of the Products (a "Kit"), then
nothing in this Agreement shall restrict BD from marketing the Kit to
any account, including, but not limited to the Direct Account and
accounts outside the Territory.
(b) If either party desires to distribute, market or sell a
New Product (as defined herein) then prior to taking any such action
the party desiring to take such action shall notify the other party and
for a period of 30 days after the date of such notice the parties agree
to explore possibilities for the parties to jointly develop and market
the New Product. If the parties agree to jointly pursue the development
and marketing of the New Product then the parties shall agree to an
amendment to this Agreement that will include such New Product as a
"Product". If at the conclusion of such 30 day period the parties are
unable to agree on terms for jointly developing and marketing the New
Product, then for the next 15 days the parties shall attempt to agree
on the terms for excluding such New Product from the terms of this
Agreement. If at the conclusion of such 15 day period the parties are
unable to agree on the terms of such exclusion, then either party may
terminate this Agreement by providing at least 180 days advance written
notice of such termination.
For purposes of this Section 2(b) "New Product" shall mean products
related to refractive surgery, including enhanced Products and products
that compete with the Products. The term New Products shall not include
laser systems, laser related capital products and products in that BD
product catalog that is most current as of the Effective Date (a copy
of which shall be promptly provided to LaserSight).
(c) Notwithstanding the foregoing, nothing contained in this
Agreement shall limit or preclude LaserSight from (i) marketing,
displaying or selling the Products at any trade show or exhibition or
in connection with marketing and selling its excimer laser, as long as
LaserSight complies with the terms of Section 5(e) in connection with
such sales, or (ii) receiving and filling sales orders directly from
the Direct Account.
4. Term and Renewal. The term of this Agreement (the "Term") and BD's
engagement hereunder, shall begin on the Effective Date and shall
continue for the five year period immediately following the Purchase
Minimum Commencement Date (as defined in Section 7(a)), unless sooner
terminated pursuant to the terms of this Agreement.
5. Pricing of the Products; Orders and Delivery.
(a) LaserSight and BD have agreed to the per unit transfer
price (the "Transfer Price") for each of the Products and standard
payment terms (the "Payment Terms") for each of the Products all as set
forth on Exhibit D attached hereto. After consultation with LaserSight,
from time to time BD will establish a per unit purchase price (the
"Purchase Price") that BD will utilize for marketing and selling the
Products to end users.
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(b) The Transfer Price may be amended by LaserSight providing
at least 90 days advance written notice to BD. Prior to LaserSight
amending the Transfer Price LaserSight agrees to consult with BD.
(c) In addition, the Transfer Price for those Products that
are keratome blades may be amended by BD pursuant to this Section 4(c)
if market conditions require BD to lower the Purchase Price for such
keratome blades in order for such products to be competitively priced.
The reductions in Transfer Price contemplated by this Section 4(c)
shall be implemented by BD providing LaserSight with written notice of
such reduction and such reduction becoming effective as of the first
day of the calendar quarter immediately following the date of such
notice. The reductions in Transfer Price contemplated by this Section
4(c) may only be implemented once per calendar quarter. In no event
will this Section 4(c) allow BD unilaterally to reduce the Transfer
Price for those Products that are keratome blades by an aggregate
amount in excess of 10% of the Transfer Price for such Products that is
set forth on Exhibit D as of the Effective Date.
(d) As provided for herein each of BD and LaserSight will
solicit orders for the Products. With respect to end users ordering the
UltraShaper(TM) durable keratome or the keratome console and orders
from the Direct Account LaserSight shall ship the applicable Products
directly to such parties. With respect to all other orders, BD shall
ship the applicable Products to the end users. On a quarterly basis, or
more frequently if reasonably requested by LaserSight, BD will provide
LaserSight with a list of customers that have purchased Products since
the date of the last report. Such list shall contain a description of
the type and volume of Products purchased. In addition, LaserSight
shall ship Products to BD in order to allow BD to fill orders from
international end users and create the Kits. With respect to end users
outside of the United States and end users that purchase the Kits BD
shall ship the applicable Products to such parties. LaserSight and BD,
as applicable, shall use its reasonable best efforts to ship the
Product or Products within 10 days after such party's receipt of all
required documentation with respect to an order. Upon shipping Products
LaserSight shall invoice BD for the Products shipped (the "LaserSight
Invoice"). The LaserSight Invoice shall require BD to pay LaserSight
the Transfer Price for all Products shipped and such payment will be
made in accordance with the Payment Terms.
If the parties determine that the Product handling processes
contemplated by this Section 5(d) are creating end user
dissatisfaction, then the parties will discuss an alternative Product
handling process in order to resolve such dissatisfaction.
(e) If LaserSight receives orders for Products from parties
other than the Direct Account, then LaserSight shall forward such
orders to BD.
6. LaserSight's Duties.
(a) LaserSight agrees to accept all orders submitted by BD in
accordance with the terms of this Agreement. Subject to Section 9,
LaserSight shall use its reasonable best efforts to ship the Products
within 10 days after LaserSight's receipt of all required documentation
with respect to such an order.
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(b) LaserSight will be responsible for obtaining all
applicable regulatory approvals necessary for marketing and selling the
Products in the Territory.
(c) LaserSight shall provide the technical support and service
support that is necessary to satisfy LaserSight's written warranty
obligations related to the Products. LaserSight shall promptly supply
BD with copies of LaserSight's written warranties related to the
Products and such warranties shall be in a form reasonably acceptable
to BD.
(d) LaserSight agrees to cooperate with BD to develop the
market for the Products in an attempt to obtain as large a sales volume
as commercially practicable in the Territory.
(e) LaserSight agrees to provide technical support to BD's
sales staff in order to support an aggressive sales effort and to
facilitate BD's fulfillment of its obligations under this Agreement.
(f) LaserSight agrees to actively advertise and promote the
Products, including, with out limitation, displaying and demonstrating
the Products at trade shows and exhibitions.
(g) Upon BD's request, LaserSight shall participate in any BD
planning and training activities related to the marketing and sale of
the Products. LaserSight shall make a good faith effort to have
appropriate sales personnel participate, at LaserSight's sole cost and
expense, in such activities, if any.
(h) LaserSight shall utilize assistance offered by BD's sales
staff and coordinate joint presentations by such staff with LaserSight
representatives.
(i) LaserSight shall communicate to LaserSight representatives
all sales information related to the Products as reasonably requested
by BD.
(j) LaserSight shall not take any action which will cause BD
to be in violation of any law of any jurisdiction in the Territory
including, but not limited to antitrust laws, the U.S. Foreign Corrupt
Practices Act of 1977, the U.S. Export Control laws and the U.S.
Anti-Boycott laws.
7. BD's Duties and Restrictions.
(a) Beginning on the Purchase Minimum Commencement Date (as
defined herein) and continuing during the two years of the Term
immediately thereafter, BD agrees to buy, on an annual basis, at least
that aggregate dollar value of the Products set forth on Exhibit E
attached hereto (the "Purchase Minimums"). The parties acknowledge that
the product mix contained on Exhibit E is for planning purposes and
does not indicate required purchase minimums for any of the Products.
For purposes hereof the term "Purchase Minimum Commencement Date" shall
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mean July 1, 2000, provided that on such date there is a sufficient
number of Products available for commercial shipment; such Products are
performing in a manner consistent with the specifications established
by LaserSight; and LaserSight has supplied BD with clinical validations
from sources mutually agreeable to both parties.
For purposes of determining whether BD has satisfied the
Purchase Minimums a Product shall be deemed purchased by BD if BD has
delivered to LaserSight a valid purchase order for such Product. If BD
fails to sell the Purchase Minimums, LaserSight may terminate this
Agreement by providing at least 15 days prior written notice. If after
the Purchase Minimum Commencement Date there is not a sufficient number
of Products available for commercial shipment, such Products are not
performing in a manner consistent with the specifications established
by LaserSight and/or LaserSight has not supplied BD with clinical
validations from sources mutually agreeable to both parties, then the
Purchase Minimums for such Product shall cease to be applicable until
all of these conditions are again satisfied. Any time period during
which any of these conditions are not met shall not be applicable to
determining whether Purchase Minimums have been satisfied; Purchase
Minimums are counted only against those 12 month periods, whether or
not consecutive, when each of these conditions is satisfied.
During the second year of the Term LaserSight and BD shall
attempt to agree on purchase minimums for the third, fourth and fifth
years of this Agreement (the "Final Minimums"). If the parties are
unable to agree on the Final Minimums at least 90 days prior to the
third anniversary of the Effective Date then this Agreement will
terminate as of the date that is the third anniversary of the Effective
Date.
(b) BD shall notify all parties that purchase Products from BD
that the Products may not be resold outside of the Territory. If BD
becomes aware that a party is reselling the Products outside of the
Territory, BD shall immediately notify LaserSight and immediately cease
soliciting orders for the Products from such party.
(c) LaserSight's obligations with respect to the Products are
strictly limited to LaserSight's standard written warranty (copies of
which will be promptly provided in a form reasonably acceptable to BD)
included with the Products from time to time, and BD shall not make any
representation, warranty or guaranty purporting to bind LaserSight,
except as set forth in such standard written warranty, if any.
(d) BD agrees to cooperate with LaserSight to develop the
market for the Products in an attempt to obtain as large a sales volume
as commercially practicable in the Territory.
(e) BD shall, train and maintain a sales staff which is
adequate to support an aggressive sales effort and would reasonably be
expected to facilitate BD's fulfillment of its obligations under this
Agreement.
(f) BD agrees to actively advertise and promote the Products,
including, with out limitation, displaying and demonstrating the
Products.
(g) Upon LaserSight's request, BD shall participate in any
LaserSight planning and training activities related to the marketing
and sale of the Products. BD shall make a good faith effort to have
appropriate sales personnel participate, at BD's sole cost and expense,
in such activities, if any.
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(h) BD shall utilize assistance offered by LaserSight's
manufacturer representatives and coordinate joint presentations by such
representatives with BD's sales representatives.
(i) BD shall communicate to BD's customers all sales
information related to the Products as reasonably requested by
LaserSight.
(j) BD shall not take any action which will cause LaserSight
to be in violation of any law of any jurisdiction in the Territory
including, but not limited to antitrust laws, the U.S. Foreign Corrupt
Practices Act of 1977, the U.S. Export Control laws and the U.S.
Anti-Boycott laws.
8. Advertising Materials; Trademarks; Indemnification.
(a) BD shall produce and supply advertising materials in
quantities agreed to by the parties. The Products sold pursuant to this
Agreement shall be co-branded in a manner agreed to by the parties.
(b) During the Term, LaserSight hereby agrees to allow BD the
use of copyrighted promotional material and the trademarks and trade
names owned by LaserSight relating to the Products that are reasonably
necessary in promoting and selling the Products; provided, however,
that none of such copyrights, trademarks and trade names owned by
LaserSight shall be used directly or indirectly in connection with the
promotion or sale of any goods other than those of LaserSight. BD
agrees to obtain LaserSight's prior written approval before utilizing
LaserSight's copyrights, trademarks or trade names in any manner or
form which was not prepared or supplied by LaserSight. LaserSight and
BD agree that all such LaserSight copyrights, trademarks and trade
names are and shall remain the exclusive property of LaserSight and
LaserSight has the sole and exclusive right to use, and to grant
licenses to others to use, such copyrights, trademarks or trade names.
Upon termination of this Agreement, BD shall immediately cease
utilizing or associating itself with LaserSight's copyrights,
trademarks and trade names unless otherwise permitted under the terms
and conditions of a written agreement executed by an authorized
representative of LaserSight and BD.
(c) During the Term and continuing thereafter, BD shall not,
directly or indirectly, (i) infringe upon, initiate or use LaserSight's
patents, copyrights, trademarks or trade names except as expressly
provided herein; or (ii) contest, challenge or assist in contesting the
validity or ownership of any of LaserSight's patents, copyrights,
trademarks or trade names. In the event that the infringement of any
patent, copyright, trademark, trade name, or brand name comes to BD's
attention, BD agrees to promptly notify LaserSight of such
infringement.
(d) LaserSight shall defend, at its expense, any claim or
action brought against BD which is based on (i) a claim that the
Products infringe a patent, trademark, trade name or copyright of a
third party, or (ii) claims of product liability related to the design
or manufacture of the Products (except for any claims of product
liability related to the design or manufacture of the Products, or any
component of any of the Products, which have been designed or
manufactured by BD) (collectively a "Claim"), and LaserSight shall
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indemnify BD against the liabilities and reasonable costs, if any,
incurred by BD with respect to any Claim, provided that BD notifies
LaserSight in writing of the Claim within 10 business days after
receiving notice thereof, LaserSight is permitted to control fully the
defense in any litigation or settlement of such Claim, and BD shall
cooperate fully in such defense. If BD continues to promote and sell
any of the Products after LaserSight has notified BD that any of the
Products should not be promoted or sold pursuant to this Section, then
LaserSight shall not be responsible for defending BD from any Claim
brought against BD relating to Products sold after the date of such
notice.
(e) During the Term, BD hereby agrees to allow LaserSight the
use of copyrighted promotional material and the trademarks and trade
names owned by BD reasonably necessary in promoting and selling the
Products; provided, however, that none of such copyrights, trademarks
and trade names owned by BD shall be used directly or indirectly in
connection with the promotion or sale of any goods other than the
Products. LaserSight agrees to obtain BD's prior written approval
before utilizing BD's copyrights, trademarks or trade names in any
manner or form which was not prepared or supplied by BD. LaserSight and
BD agree that all such BD copyrights, trademarks and trade names are
and shall remain the exclusive property of BD and BD has the sole and
exclusive right to use, and to grant licenses to others to use, such
copyrights, trademarks or trade names. Upon termination of this
Agreement, LaserSight shall immediately cease utilizing or associating
itself with BD's copyrights, trademarks and trade names unless
otherwise permitted under the terms and conditions of a written
agreement executed by an authorized representative of LaserSight and
BD.
(f) During the Term and continuing thereafter, LaserSight
shall not, directly or indirectly, (i) infringe upon, initiate or use
BD's patents, copyrights, trademarks or trade names except as expressly
provided herein; or (ii) contest, challenge or assist in contesting the
validity or ownership of any of BD's patents, copyrights, trademarks or
trade names. In the event that the infringement of any patent,
copyright, trademark, trade name, or brand name comes to LaserSight's
attention, LaserSight agrees to promptly notify BD of such
infringement.
9. Inability to Perform. Neither party shall be liable to the other for
any failure to perform any obligation hereunder by reasons of events outside the
reasonable control of such party, including without limitation, acts of God,
litigation commenced against such party that relates to the production,
distribution or sale of the Products, regulations or laws of any government,
war, civil commotion, destruction or production facilities or materials by fire,
earthquake or storm, labor disturbances, epidemic and general failure of public
utilities or common carriers. The party claiming the benefit of this Section
shall give immediate written notice to the other party, shall use its best
efforts to avoid or remove such cause or causes of non-performance, and shall
otherwise continue to perform hereunder. Either party may terminate this
Agreement upon 10 days advance written notice given to the other party, if the
other party has invoked this Section to excuse its performance for a continuous
period of at least 30 days. Suspension of a party's performance for such cause
as described herein shall not affect the running of the term of this Agreement.
In the event of a shortage of supply of any of the Products the Purchase
Minimums are suspended during the time of such shortage and LaserSight hereby
expressly reserves the right without liability to BD to determine the proportion
of the available supply thereof to be allocated to any of its distributors and
other agents and representatives. LaserSight agrees to exercise good faith in
making such allocations.
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10. Termination. During the Term, this Agreement may be terminated as
follows:
(a) Either party may terminate this Agreement upon the
occurrence of a default or material breach of the terms hereof by the
other party, provided that such right to terminate may not be exercised
unless such default or breach has not been cured within 10 business
days after written notice of such default or breach has been supplied
to the defaulting or breaching party.
(b) This Agreement may be terminated at any time by mutual
written agreement of the parties.
(c) If either party goes into liquidation, has a receiver
appointed for all or any portion of its property or estate, is adjudged
bankrupt or insolvent, files a voluntary petition or insolvency, has a
petition in bankruptcy filed against it or makes an assignment for the
benefit of its creditors, and whether any such event is the outcome of
the voluntary act of such party or otherwise, the other party, at its
option, may terminate this Agreement immediately by providing notice of
such termination.
(d) After July 1, 2003 either party may terminate this
Agreement with or without cause by providing at least 180 days advance
written notice.
11. Miscellaneous Provisions.
(a) This Agreement shall be binding on the parties hereto,
their successors and assigns including, without limitation, any
purchaser or other successor of all or substantially all of either a
party's assets as a going business.
(b) BD hereby agrees to indemnify and save LaserSight harmless
against any and all claims, losses, demands, liabilities and expenses,
including, without limitation, reasonable attorney's fees, resulting
directly from claims made by third parties based upon (i) advertising
or representations by BD which warrant performance of the Products
beyond the written representations of the Products supplied by
LaserSight to BD, (ii) advertising or representations by BD which
warrant performance of the Products beyond LaserSight's standard
written warranty, or (iii) business or trade practices engaged in by
BD.
LaserSight hereby agrees to indemnify and save BD harmless against any
and all claims, losses, demands, liabilities and expenses, including,
without limitation, reasonable attorney's fees, resulting directly from
claims made by third parties based upon (i) the written representations
of the Products supplied by LaserSight to BD, (ii) advertising or
representations by LaserSight which warrant performance of the Products
beyond the written representations of the Products supplied by
LaserSight to BD, (iii) LaserSight's standard written warranty for the
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Products, (iv) advertising or representations by LaserSight which
warrant performance of the Products beyond LaserSight's standard
written warranty, or (v) business or trade practices engaged in by
LaserSight.
(c) BD acknowledges and agrees that neither BD nor any person
acting on behalf of BD is or shall be considered an employee of
LaserSight for any reason whatsoever. Except as may be specifically
provided for herein, neither BD nor any person acting on behalf of BD
is or shall be deemed to be the legal representative or agent of
LaserSight for any purpose whatsoever, and BD is not authorized by
LaserSight to transact business, incur obligations, express or implied,
or otherwise act in any manner, in the name of or on behalf of
LaserSight, or to make any promise, warranty, or representation with
respect to the Products or any other matter in the name of or on behalf
of LaserSight. No manufacturing or licensing rights or rights of use of
any patent are granted by this Agreement. Nothing contained in this
Section 11(c) shall alter LaserSight's obligations under LaserSight's
standard written warranty.
(d) Any notice or other communication required or permitted
hereunder shall be deemed given on the date delivered if delivered
personally or by facsimile with proper evidence of transmission, or
five days after deposit in the United States mail, by registered or
certified mail, postage prepaid, addressed:
if to BD: Becton, Dickinson and Company
1 Becton Drive
Franklin Lakes, New Jersey 07417-1880
Attention: Mark Throdahl
Facsimile: (201) 847-7489
if to LaserSight: LaserSight Technologies, Inc.
3300 University Boulevard, Suite 140
Winter Park, Florida 32792
Attention: President
Facsimile: (407) 678-9982
or at such other address as any party may designate by 10 days advance
written notice to the other party.
(e) This Agreement and the exhibits hereto which are
incorporated herein by this reference, supersede and replace any and
all previous working agreements, understandings, policies, and
practices whether or not in writing between LaserSight and BD
concerning the subject matter hereof, and contains the entire
understanding between the parties hereto with respect to the subject
matter hereof. If the terms of this Agreement conflict with the terms
of any purchase order or invoice issued by either party the terms of
this Agreement shall control. Unless otherwise specifically provided in
this Agreement, no amendment, modification or waiver hereof shall be
made or be binding unless in writing and signed by both parties hereto.
Neither party may assign or delegate its rights, obligations or
responsibilities hereunder without the other party's prior written
consent.
(f) If any provision of this Agreement shall be deemed invalid
or unenforceable in whole or in part due to U.S. or any foreign law,
9
<PAGE>
statute, regulation or judicial decision, such provision shall be
limited to the extent necessary to render the same valid, or shall be
excised from this Agreement, as the circumstances require, and this
Agreement shall be construed in all respects as if said provision had
been incorporated herein as so limited, or as if said provision had not
been included herein, as the case may be.
(g) This Agreement is to be governed by and construed in
accordance with the laws of the State of Florida, without regard to any
conflict of law principles to the contrary.
(h) Any action brought under this Agreement by LaserSight may
only be brought in a court of competent jurisdiction sitting in the
State of Florida. The parties irrevocably submit to the personal
jurisdiction of any federal court sitting in the State of Florida over
any suit, action or proceeding arising out of or relating to this
Agreement which is brought by LaserSight. The parties irrevocably
waive, to the extent permitted by law, any objection which they may now
or hereafter have to the laying of the venue of any such suit, action
or proceeding brought in such a court and any claim that any such suit,
action or proceeding has been brought in an inconvenient forum.
Sections 11(g) and 11(h) do not apply to any actions brought under this
Agreement by BD.
(i) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
(j) This Agreement and the terms and transactions
contemplated hereby shall be kept confidential until the parties hereto
mutually agree upon the language and timing of a press release or until
such time as one such party determines, based on the advice of
counsel, that a public announcement is required by law, in which case
the parties hereto shall use reasonable best efforts to agree on any
public announcements or public statements with respect thereto. If the
parties are unable to so agree, a party will not be deemed in violation
of this Section for subsequent public announcements or public
statements.
10
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
BECTON, DICKINSON AND COMPANY LASERSIGHT TECHNOLOGIES, INC.
By: /s/Mark C. Throdahl By: /s/Michael R. Farris
------------------------ ------------------------
Its: Senior Vice President Its: Chief Executive Officer
------------------------ ------------------------
11
<PAGE>
EXHIBIT A
---------
Description of the Products
MicroShape(TM) Console
UniShaper(TM) Single Use Keratome
UltraShaper Durable Keratome
Tubing Sets
Keratome Blades
ACS
UltraShaper
Hansatome
Moria CB
Moria LSK-1
12
<PAGE>
EXHIBIT B
---------
Territory
Ireland
Japan
United Kingdom
United States
13
<PAGE>
EXHIBIT C
---------
Direct Account
TLC The Laser Center Inc. affiliated corporate centers.
14
<PAGE>
EXHIBIT D
Purchase Minimums
I. Transfer Price
Product Transfer Price Per Unit
MicroShape Console **
UniShaper Single Use Keratome **
UltraShaper Durable Keratome **
Tubing Sets **
Keratome Blades
ACS **
UltraShaper **
Hansatome **
Moria CB **
Moria LSK-1 **
Payment Terms
F. O. B. Shipping Point Net 30
Prepaid and Add
(Note: A more detailed description of Payment Terms will be promptly provided
upon request of BD and must be in a form reasonably acceptable to BD.)
15
<PAGE>
EXHIBIT E
---------
Sales Minimums
Year 1 Total Transfer
Units Price Total ($)
- -------------------------------------------------------------------------
MicroShape Console ** ** **
UniShaper ** ** **
UltraShaper ** ** **
Tubing ** ** **
- -------------------------------------------------------------------------
Subtotal 11,911,575.00
Keratome Blades
- -------------------------------------------------------------------------
ACS ** ** **
UltraShaper ** ** **
Hansatome ** ** **
Moria CB ** ** **
Moria LSK-1 ** ** **
- -------------------------------------------------------------------------
Subtotal 8,141,640.00
Year 1 Total 20,053,215.00
Year 2 Total Transfer
Units Price Total ($)
- -------------------------------------------------------------------------
MicroShape Console ** ** **
UniShaper ** ** **
UltraShaper ** ** **
Tubing ** ** **
- ------------------------------------------------------------------------
Subtotal 17,238,000.00
Keratome Blades
- -------------------------------------------------------------------------
ACS ** ** **
UltraShaper ** ** **
Hansatome ** ** **
Moria CB ** ** **
Moria LSK-1 ** ** **
- -------------------------------------------------------------------------
Subtotal 12,102,480.00
Year 2 Total 29,340,480.00
16
