WORKING CAPITAL FUNDING AGREEMENT
DATED AS OF JULY 13, 2000
BY AND BETWEEN
OPHTHALMIC IMAGING SYSTEMS
AND
MEDIVISION MEDICAL IMAGING LTD.
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WORKING CAPITAL FUNDING AGREEMENT
This WORKING CAPITAL FUNDING AGREEMENT, dated as of July 13, 2000 (this
"Agreement"), is entered into by and between Ophthalmic Imaging Systems, a
California corporation ("OIS") and MediVision Medical Imaging Ltd., an Israeli
corporation ("MediVision").
WITNESSETH:
WHEREAS, MediVision is willing to purchase from Premier Laser Systems,
Inc. ("Premier") the Premier Debt and Premier Shares, subject to the terms and
conditions of that certain Securities Purchase Agreement, dated July 13, 2000,
by and among OIS, Premier and MediVision (the "Purchase Agreement");
WHEREAS, subject to the terms and conditions of this Agreement,
MediVision wishes to convert the Premier Debt into shares of OIS common stock,
and OIS wishes to retire the Premier Debt in exchange for OIS common stock;
WHEREAS, OIS wishes to borrow from MediVision, and MediVision wishes to
lend to OIS, funds for working capital purposes in a principal amount of one
million five hundred thousand dollars ($1,500,000) (the "Working Capital Loan"),
which borrowings shall be convertible, at MediVision's option, into shares of
OIS common stock;
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE I
PURCHASE AND SALE TERMS; CLOSING
1.1 Defined Terms. All initially capitalized terms used in this
Agreement but not otherwise defined herein shall have the meanings ascribed to
such terms in the Purchase Agreement, unless the context otherwise indicates. In
addition, the masculine form of words includes the feminine and the neuter and
vice versa, and, unless the context otherwise requires, the singular form of
words includes the plural and vice versa. The words "herein," "hereof,"
"hereunder," and other words of similar import, when used in this Agreement,
refer to this Agreement as a whole, and not to any particular section or
subsection.
1.2 Working Capital Loan. Subject to the terms and conditions of this
Agreement, at the Closing (as defined below), OIS shall deliver to MediVision
the Secured Convertible Working Capital Note in the form annexed hereto as
Exhibit A (the "Working Capital Note"), and MediVision shall advance funds to
OIS subject to, and in accordance with, the Working Capital Note.
1.3 Premier Debt Conversion. Subject to the terms and conditions of
this Agreement, at the Closing, MediVision shall convert the Premier Debt,
having an assumed face value of two
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million one hundred eight thousand dollars ($2,108,000), into shares of OIS
common stock, free and clear of any and all restrictions, other than
restrictions imposed by federal or state securities laws, at a conversion price
per share of $ 0.55. Such conversion shall be effected by MediVision's delivery
of a written request for conversion at the Closing, whereupon OIS shall issue
and deliver to MediVision at the Closing a certificate for 3,832,727 shares of
OIS common stock (which number of shares shall be subject to adjustment upon the
occurrence of certain events in accordance with the provisions of Section 6(c)
of the Working Capital Note).
1.4 Closing Deliveries. At the Closing, OIS shall deliver to MediVision
the following: (i) the stock certificate or certificates representing the OIS
common stock being issued by OIS upon the conversion of the Premier Debt; (ii)
the Working Capital Note, duly executed by OIS; (iii) a registration rights
agreement (the "Registration Rights Agreement") in the form of Exhibit C annexed
to the Purchase Agreement granting to MediVision the registration rights
described therein with respect to the OIS common stock issuable upon conversion
of the Premier Debt and the Working Capital Loan; (iv) a certificate, dated as
of the date of the Closing and duly executed by an executive officer or director
of OIS, certifying that each of the representations and warranties of OIS set
forth in Article III hereof is true, correct and complete as of the date hereof
and as of the Closing date, and that OIS has performed and satisfied all
covenants, agreements and obligations required hereunder to be performed and
satisfied by it on or prior to the date of the Closing. The initial drawdown on
the Working Capital Loan, to be applied to purchase the inventory referred to in
Section 1.5 hereof, shall be made by wire transfer on the date of the Closing to
an account designated in writing by OIS, subject to and in accordance with the
terms of the Working Capital Note.
1.5 Use of Proceeds. By separate agreement, OIS has agreed to purchase
up to six hundred and twenty five thousand dollars ($625,000) of inventory from
Premier. The parties hereto agree that up to six hundred and twenty five
thousand dollars ($625,000) of the Working Capital Loan proceeds shall be
applied as and to the extent necessary for such purchase, but that any remaining
amounts of not less than eight hundred seventy-five thousand dollars ($875,000)
may be used by OIS for general working capital purposes.
1.6 Closing. The closing of the Working Capital Loan and the conversion
of Premier Debt into additional shares of OIS common stock, as provided herein
(the "Closing"), shall take place on the first business day following
satisfaction of the conditions to Closing set forth in Article V and approval of
the transactions contemplated herein by the U.S. Bankruptcy Court having
jurisdiction over Premier's proceeding under Chapter 11 of the U.S. Bankruptcy
Code, at the principal business office of Premier or at such other place or date
hereafter as OIS, Premier and MediVision may agree in writing.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF MEDIVISION
MediVision hereby represents and warrants to OIS as follows:
2.1 Power and Capacity; Authorization. MediVision is a corporation duly
organized, validly existing and in good standing under the laws of Israel.
MediVision has full corporate
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power and authority to conduct its business as presently conducted by it and to
own, lease or operate its assets and properties as presently owned, leased and
operated by it and to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by MediVision's board of directors or other governing body
and no other corporate proceedings by MediVision are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by MediVision and, assuming
this Agreement constitutes a legal, valid and binding obligation of the other
party hereto, constitutes a legal, valid and binding agreement of MediVision,
enforceable against MediVision in accordance with its terms (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and similar laws affecting creditors' rights, and, with respect to
the remedy of specific performance, equitable doctrines applicable thereto).
2.2 No Conflicts. The execution, delivery and performance of this
Agreement by MediVision will not (a) constitute a breach or violation of any
provisions of MediVision's articles of incorporation or bylaws or comparable
charter documents, (b) result in a violation of any law, rule, ordinance,
regulation, order, judgment or decree applicable to or by which MediVision or
any of its assets or properties is bound, or (c) conflict with or result in a
breach of or default (or any event which, with the giving of notice or lapse of
time or both, would constitute a breach or default) under any mortgage, lien,
lease, license, permit, agreement, contract or instrument to which MediVision is
a party or by which MediVision or any of its assets or properties is bound,
which conflict, breach or default would have a material adverse effect on the
ability of MediVision to perform its obligations under this Agreement.
2.3 Investigation and Economic Risk. MediVision acknowledges that it
has had an opportunity to discuss the business, affairs, financial condition,
results of operations and current prospects of OIS with the officers, directors
and employees of OIS and to conduct reasonable diligence efforts. MediVision
acknowledges that it is able to fend for itself in the transactions contemplated
by this Agreement and has the ability to bear the economic risks of its
investment pursuant to this Agreement.
2.4 Purchase for Own Account. The shares of OIS common stock issuable
upon conversion of the Working Capital Note and the shares of OIS common stock
acquired upon conversion of the Premier Debt (collectively, the "OIS Shares")
are being acquired by MediVision for its own account, not as a nominee or agent,
and not with a view to or in connection with the sale or distribution of any
part thereof.
2.5 Exempt from Registration and Restricted Securities. MediVision
understands that, except as provided in the Registration Rights Agreement, the
OIS Shares will not be registered under the Securities Act, on the ground that
the sales provided for in this Agreement are exempt from registration under the
Securities Act, and that the reliance of OIS on such exemption is predicated in
part on MediVision's representations set forth in this Agreement. MediVision
understands that the OIS Shares being purchased hereunder are restricted
securities within the meaning of Rule 144 under the Securities Act and that they
are not registered and must be held indefinitely unless they are subsequently
registered or an exemption from such registration is available. It is further
understood that each certificate representing OIS Shares
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and any other securities issued in respect of the any of the foregoing upon any
stock split, stock dividend, recapitalization, merger, or similar event shall be
stamped or otherwise imprinted with an appropriate restrictive legend. Each
certificate representing the purchased shares may be endorsed with any legends
required by any state blue sky laws and/or the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND ARE
"RESTRICTED SECURITIES" AS DEFINED IN RULE 144 PROMULGATED UNDER THE
ACT. THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE
DISTRIBUTED EXCEPT (i) IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SHARES UNDER THE ACT, (ii) IN COMPLIANCE WITH RULE
144, OR (iii) PURSUANT TO AN OPINION OF COUNSEL, SATISFACTORY TO THE
CORPORATION, THAT SUCH REGISTRATION OR COMPLIANCE IS NOT REQUIRED AS TO
SAID SALE, OFFER OR DISTRIBUTION.
2.6 Accredited Investor. MediVision is an "accredited investor" as such
term is defined in Regulation D promulgated under the Securities Act.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF OIS
OIS hereby represents and warrants to MediVision that, except as set
forth in the schedule (the "Disclosure Schedule") attached to the Purchase
Agreement (which Disclosure Schedule shall be deemed to constitute part of these
representations and warranties), the representations and warranties in the
following paragraphs of this Article III are all true and correct:
3.1 Power and Capacity; Authorization. OIS is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California. OIS has full corporate power and authority to conduct its business
as presently conducted by it and to own, lease or operate its assets and
properties as presently owned, leased and operated by it and to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of OIS, and no other corporate proceedings by OIS are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by OIS, and, assuming this Agreement constitutes a legal, valid and
binding obligation of the other party hereto, constitutes a legal, valid and
binding agreement of OIS, enforceable against OIS in accordance with its terms
(subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and similar laws affecting creditors'
rights, and, with respect to the remedy of specific performance, equitable
doctrines applicable thereto).
3.2 No Conflicts. The execution, delivery and performance of this
Agreement by OIS will not (a) constitute a breach or violation of any provisions
of Articles of Incorporation or Bylaws of OIS, (b) result in a violation of any
law, rule, ordinance, regulation, order, judgment
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or decree applicable to or by which any of them or any of their respective
assets or properties is bound, or (c) conflict with or result in a breach of or
default (or any event which, with the giving of notice or lapse of time or both,
would constitute a breach or default) under any mortgage, lien, lease, license,
permit, agreement, contract or instrument to which any of them is a party or by
which any of them or any of their respective assets or properties is bound,
which conflict, breach or default would have a material adverse effect on the
ability of OIS to perform its respective obligations under this Agreement.
3.3 Capitalization. The authorized capital stock of OIS, on the date
hereof, consists of 20,000,000 shares of common stock, of which 4,305,428 shares
are issued and outstanding, 100,000 shares of Series A Preferred Stock, of which
none is outstanding, and 2,000 shares of Series B Preferred Stock, of which 150
shares are outstanding. The rights, preferences and privileges of such shares
are as set forth in the Articles of Incorporation, as amended, and certain
Certificates of Designations thereto. All issued and outstanding shares of the
Company's capital stock (i) have been duly authorized and validly issued, (ii)
are fully paid and nonassessable, and (iii) were issued in compliance with all
applicable state and federal laws concerning the registration and qualification
of the issuance of securities. OIS has reserved an aggregate of 1,544,345 shares
of its common stock for issuance upon exercise of currently outstanding options
granted to employees, consultants and others. Except as set forth on Schedule
3.3, there are no other outstanding options, warrants, rights (including
conversion or preemptive rights and rights of first refusal), proxy or
shareholder agreements, or agreements of any kind for the purchase or
acquisition from OIS of any OIS securities, other than as set forth in the
Purchase Agreement between OIS and Premier.
3.4 Issuance of Stock. The OIS Shares are reserved for issuance , have
been duly authorized by all necessary corporate action and, when issued in
accordance with the terms hereof and the terms of the Working Capital Note, the
OIS Shares shall be validly issued, fully paid and nonassessable.
3.5 Commission Documents; Financial Statements. The common stock of OIS
is registered pursuant to Section 12(b) or 12(g) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and OIS has timely filed all
Commission Documents. As of their respective dates, the Form 10-K for the year
ended August 31, 1999 and the Forms 10-Q for the fiscal quarters ended November
30, 1999, February 29, 2000 and May 31, 2000 (the "Financial Statements") and
all other Commission Documents filed by OIS with the Securities and Exchange
Commission (the "Commission") complied in all material respects with the
requirements of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder and other federal, state and local laws, rules and
regulations applicable to such documents, and, as of their respective dates,
neither the Form 10-K nor the Forms 10-Q referred to above contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The Financial
Statements have been prepared in accordance with generally accepted accounting
principles ("GAAP") applied on a consistent basis during the periods involved
(except (i) as may be otherwise indicated in such financial statements or the
notes thereto or (ii) in the case of unaudited interim statements, to the extent
they may not include footnotes or may be condensed) and fairly present in all
material respects the financial position of OIS as of the dates thereof and the
results of operations and
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cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments).
3.6 Subsidiaries. OIS has no subsidiaries, either partially or wholly
owned.
3.7 No Undisclosed Liabilities. Except as disclosed in the Financial
Statements or on Schedule 3.7 hereto, to its knowledge, OIS has not incurred
since February 29, 2000 any liabilities, obligations, claims or losses (whether
liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent
or otherwise) that would have a Material Adverse Effect.
3.8 Indebtedness. Schedule 3.8 hereto sets forth as of the date hereof
all outstanding secured and unsecured Indebtedness of OIS, or for which OIS has
commitments, other than the Premier Debt. For the purposes of this Agreement,
"Indebtedness" shall mean (a) any liabilities for borrowed money or amounts owed
in excess of $10,000 (other than trade accounts payable incurred in the ordinary
course of business), (b) all guaranties, endorsements and other contingent
obligations in respect of Indebtedness of others, whether or not the same are or
should be reflected in the balance sheet of OIS (or the notes thereto), except
guaranties by endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business; and (c) the present
value of any lease payments in excess of $5,000 due under leases required to be
capitalized in accordance with GAAP. Except as disclosed on Schedule 3.8, OIS is
not in default with respect to any Indebtedness other than Premier Debt.
3.9 Certain Fees. No brokers, finders or financial advisory fees or
commissions will be payable by OIS with respect to the transactions contemplated
by this Agreement.
3.10 Disclosure. Neither this Agreement nor the Schedules hereto nor
any of the Commission Documents furnished to MediVision by or on behalf of OIS
in connection with the transactions contemplated by this Agreement contain any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements made herein or therein, in the light of the
circumstances under and at the time at which they were made herein or therein,
not misleading.
3.11 Employees. OIS does not have any collective bargaining
arrangements or agreements covering any of its employees, except as set forth on
Schedule 3.11 hereto.
3.12 Title to Assets. Except as set forth on Schedule 3.12, OIS has
good and marketable title to all of its real and personal property having a
value in excess of $1,000, free and clear of any Liens, except for those
indicated on Schedule 3.12 hereto.
3.13 Actions Pending. Except as set forth on Schedule 3.13, there is no
action, suit, claim, investigation or proceeding pending or, to the knowledge of
OIS, threatened against OIS which questions the validity of this Agreement or
the transactions contemplated hereby or any action taken or to be taken pursuant
hereto or thereto. Except as disclosed in the Commission Documents filed by OIS,
there is no action, suit, claim, investigation or proceeding pending or, to the
knowledge of OIS, threatened, against or involving OIS, its properties or
assets. Except as disclosed in the Commission Documents filed by OIS, there are
no outstanding orders,
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judgments, injunctions, awards or decrees of any court, arbitrator or
Governmental Body against OIS which could result in a Material Adverse Effect.
3.14 Compliance with Law. Except as set forth on Schedule 3.14 hereto,
the business of OIS has been and is presently being conducted in accordance with
all applicable federal, state and local governmental laws, rules, regulations
and ordinances, domestic and foreign, except where the conduct of the business
of OIS in violation of any of such laws, rules, regulations and ordinances could
not reasonably result in a Material Adverse Effect.
3.15 Taxes. Except as set forth on Schedule 3.15 hereto, OIS has
accurately prepared and filed all federal, state and other tax returns required
by law, domestic and foreign, to be filed by it, has paid or made provisions for
the payment of all taxes shown to be due and all additional assessments, and
adequate provisions have been and are reflected in the financial statements of
OIS for all current taxes and other charges to which OIS is subject and which
are not currently due and payable. Except as disclosed on Schedule 3.15 hereto,
none of the federal income tax returns of OIS for the years subsequent to fiscal
year 1996 have been audited by the Internal Revenue Service or other domestic or
foreign governmental tax agency. Except as disclosed in Commission Filings, OIS
has no knowledge of any additional assessments, adjustments or contingent tax
liability (whether federal or state) pending or threatened against OIS for any
period that would have a Material Adverse Effect, nor of any basis for any such
assessment, adjustment or contingency.
3.16 Intellectual Property. Except as set forth on Schedule 3.16, in
the conduct of its business as now conducted, OIS owns or possesses all patents,
know how, licenses and authorizations from third parties that are necessary for
OIS to conduct its business ("Intellectual Property"), free and clear of all
liens, charges or encumbrances. OIS has not received a notice of a claim of
infringement relating to the Intellectual Property and does not know of any
reasonable basis for a claim that such an infringement or violation exists.
ARTICLE IV
ADDITIONAL COVENANTS AND AGREEMENTS OF THE PARTIES
4.1 Covenants of OIS.
(a) Notice of Breach. OIS agrees to promptly notify in writing
MediVision of any events, facts or occurrences which would constitute or result
in a breach of any representation or warranty made by OIS contained in this
Agreement or a breach of any covenant, agreement or obligation of OIS under this
Agreement; provided, however, that no such disclosure shall be deemed to cure or
relieve any such breach or default.
(b) Conduct of Business. During the period from the date
hereof through the Closing, OIS shall not, except as MediVision may otherwise
consent to in writing:
(i) amend its articles of incorporation or bylaws;
(ii) authorize for issuance, issue, sell, deliver or agree or
commit to issue, sell or deliver (whether through the issuance or
granting of options, warrants, commitments,
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subscriptions, rights to purchase or otherwise) any stock of any class
or any other securities;
(iii) split, combine or reclassify any shares of its capital
stock, declare, set aside or pay any dividend or other distribution
(whether in cash, stock or property or any combination thereof) to any
stockholder or otherwise in respect of its capital stock or redeem or
otherwise acquire any of its securities, or make any payments or
distributions to shareholders or to any Person to which OIS has any
liability (other than trade accounts payable), or make any payments to
any officer or director of OIS, except compensation or payments to
consultants consistent with past practice;
(iv) (1) incur or assume any indebtedness in excess of $5,000
in the aggregate other than the $260,000 Loan contemplated by the
Purchase Agreement and other than trade payables (including, but not
limited to, legal fees); (2) assume, guarantee, endorse or otherwise
become liable or responsible (whether directly, contingently or
otherwise) for any obligations of any other Person in excess of $5,000
in the aggregate; or (3) make any loans, advances or capital
contributions to, or investments in, any other Person (other than loans
or advances to employees) in excess of $3,000 in the aggregate;
(v) enter into, adopt or amend any bonus, profit sharing,
compensation, severance, termination, stock option, stock appreciation
right, restricted stock, performance unit, pension, retirement,
deferred compensation, employment, severance or other employee benefit
agreements, trusts, plans, funds or other arrangements of or for the
benefit or welfare of any employee, or increase in any manner the
compensation or fringe benefits of any employee or pay any benefit not
required by any existing plan and arrangement (including, without
limitation, the granting of stock options, stock appreciation rights,
shares of restricted stock or performance units);
(vi) except to the extent required by applicable law, change
any accounting principle or method or make any election for purposes of
foreign, federal, state or local income taxes;
(vii) acquire, sell, lease, transfer or dispose of any
material property or assets except in the ordinary course of business;
(viii) take or suffer any action that would result in the
creation, or consent to the imposition, of any lien on any of the
properties or assets of OIS;
(ix) make or incur any capital expenditure, lease or
commitment for additions to property, plant, equipment or other capital
assets in excess of $10,000 in the aggregate; or
(x) enter into any agreement to do, or take, or agree in
writing or otherwise to take or consent to, any of the foregoing
actions.
(c) Maintenance of Existence. OIS shall preserve and maintain its
corporate existence and good standing in the jurisdiction of its incorporation
and qualify and remain qualified as a foreign corporation in each jurisdiction
in which qualification is required either
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(1) to own, lease, license or use its properties now owned, leased, licensed or
used and proposed to be owned, leased, licensed or used or (2) to carry on its
business as now conducted or proposed to be conducted, except where the failure
to effect or obtain such qualification, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
(d) Compliance with Regulations. OIS shall comply in all respects with
all Regulations of any Governmental Body if a failure to comply with any such
Regulations, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
4.2 Covenants of MediVision.
(a) MediVision acknowledges and agrees that neither Premier
nor OIS has made any representations or warranties to MediVision in connection
with the transactions contemplated hereby regarding the business, condition
(financial or otherwise), results of operations, prospects or any other aspect
of the operations of OIS.
(b) MediVision agrees to promptly notify in writing OIS of any
events, facts or occurrences which would constitute or result in a breach of any
representation or warranty made by MediVision contained in this Agreement or a
breach of any covenant, agreement or obligation of MediVision under this
Agreement; provided, however, that no such disclosure shall be deemed to cure or
relieve any such breach or default.
(c) Appointment of Directors, CEO. The parties hereto shall
take commercially reasonable steps, in compliance with applicable law and the
bylaws and articles of OIS, to cause the following to occur upon Closing: (i)
the resignation of the current directors of OIS, (ii) the appointment, upon
designation by MediVision, of new directors, who shall constitute a majority of
directors of OIS, and (iii) those MediVision directors shall appoint a designee
of MediVision as acting Chief Executive Officer of OIS.
4.3 Further Assurances. Subject to the terms and conditions provided
herein, MediVision and OIS agree to use all commercially reasonable efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, as
promptly as practicable, all things necessary, proper or advisable under
applicable laws and regulations or otherwise to consummate and make effective
the transactions contemplated by this Agreement.
ARTICLE V
CLOSING CONDITIONS
5.1 Conditions to Each Party's Obligation. The respective obligation of
each party to consummate the transactions contemplated hereby shall be subject
to the satisfaction at or prior to the Closing of each of the following
conditions:
(a) Bankruptcy Court Approval. The federal bankruptcy court
administering Premier's reorganization under Chapter 11 of the U.S. Bankruptcy
Code (Case No. SA00-12031RA) has approved the Purchase Agreement and the
Transactions contemplated hereby and thereby.
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(b) No Injunctions, Restraints or Litigation. No temporary
restraining order, preliminary or permanent injunction or other order issued by
any court of competent jurisdiction or other legal restraint or prohibition
preventing consummation of the transactions contemplated hereby is in effect.
There is no pending or threatened, claim, action, suit or other legal,
administrative, investigative or arbitration proceeding in which it is sought to
restrain, enjoin or prohibit the consummation of the transactions contemplated
hereby or to obtain damages or other monetary or equitable relief in connection
therewith.
(c) Representations and Warranties. The representations and
warranties of the other party hereto contained in this Agreement are true,
accurate and complete in all material respects as of the Closing Date.
(d) Performance of Agreement. The other party hereto has
performed and satisfied in all material respects each of the covenants,
agreements and obligations required to be performed and satisfied by it under
this Agreement and the Purchase Agreement on or prior to the Closing Date.
(e) Purchase Agreement. The transactions contemplated by the
Purchase Agreement shall be consummated contemporaneously with the Closing.
(f) Rights Agreement. OIS shall have amended the Rights
Agreement, dated as of December 31, 1997, as amended from time to time, by and
between OIS and American Securities Transfer, Inc. (the "Rights Agreement"), to
provide that (i) none of the transactions contemplated by this Agreement will
trigger a Distribution Date and (ii) MediVision will not be deemed an Acquiring
Person thereunder, as those terms are defined in the Rights Agreement.
ARTICLE VI
TERMINATION
6.1 Termination. This Agreement may be terminated at any time:
(a) by mutual written consent of MediVision and OIS;
(b) by either party hereto if the Purchase Agreement has been
terminated or the Closing has not occurred by October 31, 2000, and this
Agreement has not previously been terminated; provided, however, that the
failure to consummate the Closing by such date is not a result of either the
failure by the party so electing to terminate this Agreement to perform any of
its obligations hereunder or the breach by the party so electing of its
representations and warranties;
(c) by MediVision or OIS if OIS enters into an agreement
constituting a Superior Proposal;
(d) by any party hereto if the Bankruptcy Court approves an
Overbid by any person or entity other than MediVision or any of its Affiliates;
and
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(e) by any party hereto in the event any court or governmental
agency of competent jurisdiction has issued an order, decree or ruling or taken
any other action restricting, enjoining or otherwise prohibiting the
transactions contemplated hereby and such order, decree, ruling or other action
shall have become final and unappealable.
6.2 Effect of Termination. In the event that this Agreement shall be
terminated pursuant to this Article VI, all further obligations of the parties
under this Agreement other than the obligations set forth in this Section 6.2
shall terminate, and there shall be no liability of any party to another party
except for a party's breach of any of its obligations, representations or
warranties under this Agreement prior to the termination of this Agreement.
ARTICLE VII
MISCELLANEOUS
7.1 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of California (without giving effect
to conflicts of law principles thereof).
7.2 Remedies Cumulative. Except as may otherwise be provided herein,
the remedies provided herein shall be cumulative and shall not preclude
assertion by either party hereto of any other rights or the seeking of any other
remedies against either party hereto.
7.3 Brokerage. Each party hereto will indemnify and hold harmless the
other party against and in respect of any claim for brokerage or other
commission relative to this Agreement or to the transactions contemplated
hereby, based in any way on agreements, arrangements or understandings made or
claimed to have been made by such party with any third party.
7.4 Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provisions shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
7.5 Notices. Notices required under this Agreement shall be deemed to
have been adequately given if delivered in person or sent to the recipient at
its address (or facsimile number, as the case may be) set forth on the signature
page hereto or such other address as such party may from time to time designate
in writing by certified mail (return receipt requested), facsimile or overnight
courier in the manner provided in this Section 7.5.
7.6 Amendments and Waivers.
(a) Any provision of this Agreement and the Working Capital
Note may be amended or waived if, but only if, such amendment or waiver is in
writing and signed, in the case of an amendment, by each of the parties hereto,
or in the case of a waiver, by the party against whom the waiver is to be
effective.
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(b) No waiver by a party of any default, misrepresentation or
breach of a warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default, misrepresentation or breach
of a warranty or covenant hereunder or affect in any way any rights arising by
virtue of any prior or subsequent occurrence. No failure or delay by a party
hereto in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.
7.7 Survival. All representations and warranties made by the parties
contained in this Agreement and the respective covenants, agreements and
obligations of the parties under this Agreement shall survive the execution and
delivery of this Agreement for a period of three years following the Closing.
7.8 Entire Understanding. This Agreement and the agreements to be
executed in connection herewith at the Closing, express the entire understanding
of the parties and supersede all prior and contemporaneous agreements and
undertakings of the parties with respect to the subject matter hereof and
thereof.
7.9 Expenses. Each party will pay all of its own expenses, including
attorney's fees, incurred in connection with the negotiation of this Agreement
and the Working Capital Note, the performance of its obligations hereunder and
under the Working Capital Note and the consummation of the transactions
contemplated by this Agreement. In the event of any action at law, suit in
equity or arbitration proceeding in relation to this Agreement or the Working
Capital Note, the prevailing party shall be paid by the other party a reasonable
sum for attorneys' fees and expenses incurred therein.
7.10 Counterparts. This Agreement may be executed in counterparts and
the signatures delivered by telecopy in the manner provided in Section 7.5, each
of which shall be deemed to be an original but which taken together shall
constitute one agreement with the same effect as if the signatures were upon the
same instrument and delivered in person.
7.11 Assignment; No Third-Party Beneficiaries.
(a) Except as otherwise expressly provided herein, this
Agreement and the rights hereunder shall not be assignable or transferable,
except to an Affiliate, by either party without the prior written consent of the
other party hereto; provided that, if such assignment or transfer is consented
to, such assignee or transferee expressly assumes in writing all of the such
party's obligations hereunder. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns.
(b) This Agreement is for the sole benefit of the parties
hereto and their respective successors and permitted assigns and nothing herein
expressed or implied shall give or be construed to give to any Person, other
than the parties hereto and such successors and permitted assigns, any legal or
equitable rights hereunder.
7.12 Interpretation. This Agreement, including any exhibits, addenda,
schedules and amendments, has been negotiated at arm's length and between
persons sophisticated and
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knowledgeable in the matters dealt with in this Agreement. Each party has been
represented by experienced and knowledgeable legal counsel. Accordingly, any
rule of law or legal decision that would require interpretation of any
ambiguities in this Agreement against the party that has drafted it is not
applicable and is waived.
7.13 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
7.14 Jurisdiction; Service of Process. Each party hereto agrees that in
any action or proceeding brought on or in connection with this Agreement or the
Working Capital Note: (a) the California Superior Court for the County of
Sacramento, or (in a case involving diversity of citizenship) the United States
District Court of the Northern District of California shall have jurisdiction of
any such action or proceeding; and (b) service of any summons and complaint or
other process in any such action or proceeding may be made by either party upon
the other by registered or certified mail directed to the recipient at its
address referenced on the signature page hereto, each party hereby waiving
personal service thereof.
7.15 WAIVER OF THE RIGHT TO TRIAL BY JURY. EACH PARTY HERETO WAIVES THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING, WHETHER IN CONTRACT OR TORT,
AT LAW OR IN EQUITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK.)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of tile date first above written.
OPHTHALMIC IMAGING SYSTEMS
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
Address: 221 Lathrop Way, Suite I
Sacramento, CA 95815
Attention: President
Facsimile No. (916) 646-0207
Telephone No. (916) 646-2020
With a copy to: Gibson, Dunn & Crutcher, LLP
1530 Page Mill Road
Palo Alto, CA 94304
Attention: Lawrence Calof, Esq.
Facsimile No. (650) 849-5333
Telephone No. (650) 849-5300
MEDIVISION MEDICAL IMAGING LTD.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
Address: P.O. Box 45
Industrial Park
Yokneam Elit
20692 Israel
With a copy to: Parker Chapin LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Attention: Henry I. Rothman, Esq.
Tel. No.: (212) 704-6000
Fax No.: (212) 704-6288
{SIGNATURE PAGE TO FUNDING AGREEMENT}
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