SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT, dated as of July 13, 2000 (this
"Agreement"), is entered into by and among Ophthalmic Imaging Systems, a
California corporation ("OIS"), Premier Laser Systems, Inc., a California
corporation ("Premier") and MediVision Medical Imaging Ltd., an Israeli
corporation ("MediVision").
WITNESSETH:
WHEREAS, Premier owns, beneficially and of record, 2,131,758 shares of
OIS common stock (the "Premier Common") and 150 shares of OIS Series B Preferred
Stock (the "Premier Series B Preferred"), and Premier is a party to that certain
Agreement, dated as of October 21, 1999 (the "Series B Purchase Agreement"), by
and between OIS and Premier, whereby Premier has the right to purchase
additional shares of Series B Preferred Stock upon the exercise of outstanding
OIS options held by OIS employees and directors;
WHEREAS, pursuant to that certain Manufacturing Agreement, dated March
7, 1999, by and between OIS and Premier (the "Manufacturing Agreement"), Premier
owns certain inventory of OIS products and materials (the "Premier Inventory")
used in the manufacture of certain OIS products;
WHEREAS, Premier has asserted that OIS owes certain amounts to Premier
including, but not limited to, a promissory note in the principal amount of five
hundred thousand dollars ($500,000), dated April 30, 1998, plus accrued and
unpaid interest thereon and additional advances in the approximate amount of
$1,608,000 (the "Premier Note," and the Premier Note and the additional amounts
owed to Premier are referred to herein as the "Premier Debt");
WHEREAS, OIS has asserted that it has certain defenses and offsets to
the Premier Debt, which Premier disputes;
WHEREAS, OIS and Premier have made claims against each other relating
to the Manufacturing Agreement and certain other aspects of the relationship
between them;
WHEREAS, in connection with the transactions contemplated hereby, OIS
and Premier wish to resolve all disputes and terminate all existing agreements
between the companies;
WHEREAS, Premier wishes to sell to MediVision, and MediVision wishes to
purchase from Premier, the Premier Debt, the Premier Common and the Premier
Series B Preferred;
WHEREAS, Premier wishes to sell and OIS wishes to purchase the Premier
Inventory, on the terms and conditions set forth herein;
WHEREAS, MediVision wishes to provide $1,500,000 of working capital
financing to OIS, which obligations shall be convertible, at MediVision's
option, into shares of OIS common
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stock (the "OIS Common") pursuant to a Working Capital Funding Agreement, dated
as of July 13, 2000, between OIS and MediVision (the "Funding Agreement");
WHEREAS, MediVision is willing to loan OIS up to two hundred and sixty
thousand dollars ($260,000) (the "Loan"), pursuant to a Loan and Security
Agreement between OIS and MediVision (the "Security Agreement"), to allow OIS to
purchase certain inventory, including the Premier Inventory, which Loan will be
secured by the inventory so purchased and the proceeds thereof, as collateral;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, promises and covenants set forth herein, the parties hereto agree as
follows:
ARTICLE I
DEFINED TERMS
1.1. Definitions. The following terms, when used in this Agreement,
have the following meanings, unless the context otherwise indicates:
"Affiliate" has the meaning ascribed to it in Rule 12b-2 under the
Exchange Act.
"Commission Documents" means all reports, schedules, forms, statements
and other documents required to be filed with the Securities and Exchange
Commission pursuant to the reporting requirements of the Exchange Act, including
material filed pursuant to Section 13(a) or 15(d) of the Exchange Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor federal law then in force.
"Governmental Body" means any agency, bureau, commission, court,
department, official, political subdivision, tribunal or other instrumentality
of any government, whether federal, state, county or local, domestic or foreign.
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment, encumbrance, encroachment, lien (statutory or
otherwise), claim, option, reservation, priority, preferential arrangement,
easement, encumbrance or interest of any kind.
"Material Adverse Effect" means any effect on the business, results of
operations, prospects, properties, assets or financial condition of the entity
in question that is material and adverse to such entity.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, governmental entity or any other
entity.
"Premier Assets" means the Premier Debt, the Premier Common, the
Premier Series B Preferred and the Premier Inventory.
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"Registration Rights Agreement" means a registration rights agreement
to be entered into between MediVision and OIS in the form annexed hereto as
Exhibit B with respect to the registration of the capital stock of OIS to be
acquired by MediVision pursuant to this Agreement and the Funding Agreement, as
described therein.
"Regulation" means (1) any applicable law, rule, regulation, ordinance,
judgment, decree, ruling, order, award, injunction, recommendation or other
official action of any Governmental Body, and (2) any official change in the
interpretation or administration of any of the foregoing by the Governmental
Body or by any other Governmental Body or other person responsible for the
interpretation or administration of any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor federal law then in force.
"Transaction Documents" means this Agreement, the Funding Agreement,
the Registration Rights Agreement and the Security Agreement.
"Transactions" means, collectively, the transactions undertaken
pursuant to, or otherwise contemplated by, the Transaction Documents.
1.2 Additional Definitions. Additional defined terms are found in the
body of this Agreement. 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.
ARTICLE II
PURCHASE AND SALE TERMS; CLOSING
2.1 Purchase and Sale of the Premier Debt, Premier Shares and Premier
Inventory.
(a) Purchase and Sale of Premier Debt. Subject to the terms
and conditions of this Agreement, at the Closing (as defined below), Premier
shall sell, assign, transfer, convey and deliver to MediVision, and MediVision
shall purchase, acquire and accept from Premier, all right, title and interest
in and to the Premier Debt, free and clear of any and all Liens. Prior to the
Closing, and as a condition thereto, Premier and OIS shall amend the terms of
the Premier Debt to provide that, subject to, and effective as of, the Closing,
all amounts due and payable with respect to the Premier Debt shall automatically
be converted into OIS Common at a conversion price per share of $0.55, which
amendment (the "Premier Debt Amendment") shall be in form and substance
reasonably satisfactory to MediVision.
(b) Purchase and Sale of Premier Shares. Subject to the terms
and conditions of this Agreement, at the Closing, Premier shall sell, assign,
transfer, convey and deliver to MediVision, and MediVision shall purchase,
acquire and accept from Premier, all right, title and interest in and to the
Premier Common and the Premier Series B Preferred (collectively, the "Premier
Shares"), free and clear of any and all Liens, other than restrictions imposed
by federal
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or state securities laws. Pursuant to the Certificate of Determination of
Preferences of Series B Preferred Stock of OIS, the Premier Series B Preferred
shall automatically convert into shares of OIS common stock upon transfer by
Premier.
(c) Purchase and Sale of Premier Inventory. Subject to the
terms and conditions of this Agreement, at the Closing, Premier shall sell,
assign, transfer, convey and deliver to OIS and OIS shall purchase, acquire and
accept from Premier (with the funding for such purchase to be provided by
MediVision), all right, title and interest in and to the Premier Inventory, free
and clear of all Liens, determined to be in useable and in good condition after
a physical inventory conducted jointly by OIS and Premier, for an aggregate
purchase price of up to six hundred and twenty five thousand dollars ($625,000),
as determined in accordance with Section 2.3.
(d) Payment; Deliveries. At the Closing, Premier shall deliver
to MediVision the following: (i) the original Premier Note and evidence of
transfer of the balance of the Premier Debt, with the Note endorsed in favor of
MediVision in form and substance reasonably satisfactory to MediVision and its
counsel, together with the Premier Debt Amendment, duly executed and delivered
by OIS and Premier; (ii) the stock certificate or certificates representing the
Premier Common Stock and the stock certificate or certificates representing the
Premier Series B Preferred, together with stock powers duly executed by Premier
and in form and substance suitable for transfer of the Premier Shares to
MediVision; (iii) a certificate, dated as of the Closing Date and duly executed
by an executive officer of Premier, certifying that each of the representations
and warranties of Premier set forth in Article III hereof are true, correct and
complete as of the date hereof and as of the Closing Date, and that Premier has
performed and satisfied all covenants, agreements and obligations required
hereunder to be performed and satisfied by it on or prior to the Closing Date;
and (iv) the written consent, if required, of Premier's lenders to the transfer
of the Premier Debt, Premier Shares and/or the Premier Inventory. The aggregate
purchase price for the Premier Debt, the Premier Shares and the Premier
Inventory (with $625,000 (subject to adjustment) of such purchase price
allocated to the Premier Inventory in accordance with Section 2.3) shall consist
of the following (1) two million, two hundred thousand dollars ($2,200,000),
assuming no adjustment to the value of the Premier Inventory, paid by wire
transfer on the Closing Date to an account designated in writing by Premier and
(2) registered and freely transferable ordinary shares of MediVision valued at
$1,000,000 in the aggregate (the "MediVision Shares") delivered to Premier on
the Closing Date, which valuation shall be based on the average closing price of
such MediVision Shares on the Brussels EURO.N.M. for the five (5) trading days
immediately preceding the date of Bankruptcy Court Approval (hereinafter
defined). The delivery of the MediVision Shares shall be conditioned on
Premier's undertaking not to effect any sales of such shares for a period of six
weeks following Bankruptcy Court Approval, with weekly sales thereafter not to
exceed an aggregate of 20% of the number of MediVision Shares originally
delivered to Premier. MediVision shall have the option to repurchase the
MediVision Shares from Premier at any time after the Closing for $1,000,000 in
cash, less any gross proceeds realized by Premier from its prior sales of such
MediVision Shares, in accordance with the provisions of the Put and Call
Agreement, to be entered into by Premier and MediVision at the Closing, in the
form of Exhibit B annexed hereto (the "Put and Call Agreement"). To the extent
that Premier fails to realize $1,000,000 of gross proceeds within eleven weeks
of the Closing, MediVision shall, upon Premier's request, pay to Premier the
difference in cash, in accordance with the terms of the Put
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and Call Agreement. At the Closing, Premier shall deliver the Premier Inventory
to OIS and the Premier Debt and the Premier Shares to MediVision.
(e) Closing. The consummation of the purchase and sale of the
Premier Debt, the Premier Shares and the Premier Inventory (the "Closing"),
shall take place on the first business day following satisfaction of the
conditions in Article VII and approval of the transactions contemplated herein
by the U.S. Bankruptcy Court (the "Bankruptcy Court") having jurisdiction over
Premier's proceeding under Chapter 11 of the U.S. Bankruptcy Code (such approval
referred to herein as the "Bankruptcy Court Approval"), at the principal
business office of Premier or at such other place or date thereafter as Premier,
OIS and MediVision may agree in writing.
2.2 Termination of Certain Agreements. Upon the Closing, the Series B
Purchase Agreement and the Manufacturing Agreement shall terminate, and shall be
of no further force or effect.
2.3 Inventory Adjustments. The purchase price of the Premier Inventory
will be reduced, on a dollar for dollar basis, if and to the extent that, the
value of Premier Inventory is less than $625,000. Such value shall be based upon
a physical inventory conducted by representatives of Premier and OIS jointly, as
soon as possible, after execution of this Agreement and will identify quantities
and types of materials on hand. The value of the Premier Inventory, other than
finished goods, shall then be determined by the application of historical or
current cost, whichever is lower, of the raw materials or material components of
work in process so identified. The value of any finished goods shall be based on
the contract price for those products under the Manufacturing Agreement. Any
purchases of raw materials, work in progress or finished goods from Premier
Inventory by OIS before the Closing shall similarly cause a reduction in the
value of Premier Inventory by the amount of the purchase.
2.4 Mutual Release. At the Closing, OIS and Premier shall execute and
deliver the mutual release referred to in Section 7.1(e).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PREMIER
Premier hereby represents and warrants to MediVision and OIS as
follows:
3.1 Power and Capacity; Authorization. Premier is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California. Subject to the requirements of the Bankruptcy Code, Premier 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 Premier, and no
other corporate proceedings by Premier are necessary to authorize this Agreement
or to consummate the transactions contemplated hereby. Subject to Bankruptcy
Court Approval (as hereinafter defined), this
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Agreement has been duly and validly executed and delivered by Premier, and,
assuming this Agreement constitutes a legal, valid and binding obligation of
each of the other parties hereto, constitutes a legal, valid and binding
agreement of Premier, enforceable against Premier 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. Subject to Bankruptcy Court Approval, the execution,
delivery and performance of this Agreement by Premier will not (a) constitute a
breach or violation of any provisions of Premier's Articles of Incorporation or
Bylaws, (b) result in a violation of any law, rule, ordinance, regulation,
order, judgment or decree applicable to or by which Premier 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 Premier is a party or by
which its assets or properties is bound, which conflict, breach or default would
have a material adverse effect on the ability of Premier to perform its
obligations under this Agreement.
3.3 Ownership of Securities. Premier is the record and beneficial owner
of the Premier Common and Premier Series B Preferred and the holder of all
legal, equitable and beneficial right, title and interest in and to the Premier
Debt, free and clear of any and all Liens, except for, in the case of the
Premier Shares, restrictions imposed by federal or state securities laws.
Premier has not sold, assigned, transferred or conveyed, or attempted or
purported to sell, assign, transfer or convey, to any Person any portion of the
Premier Shares or any right, title or interest therein or in or to the Premier
Debt.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF MEDIVISION
MediVision hereby represents and warrants to Premier and OIS as
follows:
4.1 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 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 each of the other parties 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).
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4.2 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.
4.3 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.
4.4 Purchase for Own Account. The Premier Shares, the Premier Debt and
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.
4.5 Exempt from Registration and Restricted Securities. MediVision
understands that the Premier Shares and the Premier Debt will not be registered
under the Securities Act, on the grounds that the sales provided for in this
Agreement are exempt from registration under the Securities Act, and that the
reliance of Premier and OIS on such exemption is predicated in part on
MediVision's representations set forth in this Agreement. MediVision understands
that the Premier Shares and the Premier Debt 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 Premier Shares 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 Premier 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.
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4.6 Accredited Investor. MediVision is an "accredited investor" as such
term is defined in Regulation D promulgated under the Securities Act.
4.7 Issuance of MediVision Shares. At the time of the delivery thereof
to Premier, the MediVision Shares shall have been duly authorized by all
necessary corporate action and, when paid for and issued in accordance with the
terms hereof, the MediVision Shares shall be validly issued and outstanding,
fully paid and nonassessable.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF OIS
OIS hereby represents and warrants to MediVision and Premier as
follows:
5.1 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 each of the other parties 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).
5.2 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 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.
5.3 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
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(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 Series B Purchase Agreement between OIS and Premier.
5.4 Issuance of Stock. The Premier Shares to be purchased under this
Agreement have been duly authorized by all necessary corporate action and, when
paid for or issued in accordance with the terms hereof, the Premier Shares shall
be validly issued and outstanding, fully paid and nonassessable.
5.5 Commission Documents; Financial Statements. The common stock of OIS
is registered pursuant to Section 12(b) or 12(g) of the Securities and Exchange
Act of 1934, as amended (the "Exchange Act"). 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 and February 29, 2000 (the "Financial
Statements") and all other Commission Documents filed by OIS with the Commission
after December 31, 1998 complied in all material respects with the requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and the
rules and regulations of the Securities and Exchange Commission (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 cash flows for the periods then ended (subject, in
the case of unaudited statements, to normal year-end audit adjustments).
5.6 Subsidiaries. OIS has no subsidiaries, either partially or wholly
owned.
5.7 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.
5.8 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
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incurred in the ordinary course of business, including, but not limited to,
legal fees), (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 in Schedule 3.8, OIS is
not in default with respect to any Indebtedness other than Premier Debt.
5.9 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.
5.10 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.
5.11 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.
5.12 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.
5.13 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, judgments, injunctions, awards or decrees of any court,
arbitrator or Governmental Body against OIS which could result in a Material
Adverse Effect.
5.14 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.
5.15 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
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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.
5.16 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 VI
ADDITIONAL COVENANTS AND AGREEMENTS OF THE PARTIES
6.1 Covenants of OIS.
(a) No Shop Provision. Commencing on the effective date
hereof, OIS and its officers, directors, employees and other agents will not,
until the earlier of (i) October 12, 2000 or (ii) termination of this Agreement,
directly or indirectly, take any action to solicit or initiate an offer or
proposal for a merger or other business combination involving OIS or the
acquisition of a material portion of the assets of OIS outside the ordinary
course of business of OIS or the sale and purchase of any voting securities of
OIS in a single transaction or series of related transactions (each a "Takeover
Proposal"). Notwithstanding the foregoing, if OIS (or any of its agents)
receives an unsolicited, bona fide Takeover Proposal from a person or entity
unaffiliated with OIS, then, to the extent that the Board of Directors of OIS
believes in good faith that such Takeover Proposal could, if consummated, result
in a transaction materially more favorable to the shareholders or creditors of
OIS than the transactions contemplated by this Agreement and, after consultation
with and upon the written advice of its counsel, the Board of Directors of OIS
concludes that the failure to act on such Takeover Proposal could cause a breach
of its fiduciary duties (a "Superior Proposal"), the Board of Directors of OIS
may furnish information to the party making the Superior Proposal and engage in
negotiations with such party, provided, however, that such information may only
be provided pursuant to a written confidentiality agreement reasonably
satisfactory to OIS. OIS will promptly notify MediVision after receipt of any
Takeover Proposal and keep MediVision fully informed of the status and details
of any such negotiations regarding a Takeover Proposal.
(b) OIS Break-Up Fee.
(i) In the event that OIS enters into an agreement with
respect to a Superior Proposal and this Agreement is terminated as a
result thereof, OIS shall, or shall cause the party making the Superior
Proposal to, pay to MediVision a break-up fee of one
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hundred fifty thousand dollars ($150,000), which shall be due and
payable immediately upon the earlier of the execution of such agreement
or the termination of this Agreement.
(ii) In the event that this Agreement is terminated by
MediVision pursuant to Section 8.1(b) due to a failure by OIS to
perform any of its obligations hereunder or the material breach by OIS
of any of its representations or warranties hereunder, OIS shall pay to
MediVision a break-up fee of one hundred fifty thousand dollars
($150,000), which shall be due and payable within five (5) business
days of such termination.
(iii) In the event that this Agreement is terminated pursuant
to Section 8.1(d) due to the Bankruptcy Court's approval of an Overbid
(as defined in Section 6.3(b)) by any person or entity other than
MediVision or any of its Affiliates, then OIS shall pay to MediVision a
break-up fee of one hundred ten thousand dollars ($110,000), which
shall be due and payable upon Bankruptcy Court approval of the Overbid:
(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 (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.
(e) 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, 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
Security Agreement and trade
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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 the ordinary
course of business in accordance with past practices) 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.
(f) Notification of Breach. OIS agrees to promptly notify in
writing the other parties hereto 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.
6.2 Covenants of MediVision. MediVision agrees to promptly notify in
writing the other parties hereto 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.
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6.3 Covenants of Premier.
(a) Termination of Prior Agreements; Assignment. Premier
acknowledges and agrees that, effective at the Closing, the Manufacturing
Agreement and the Purchase Agreement shall terminate and its rights with respect
to the Premier Debt shall be assigned to MediVision.
(b) Overbid Procedure. Upon execution of this Agreement by the
parties hereto, Premier shall prepare and file a motion with the Bankruptcy
Court seeking nunc pro tunc approval of this Agreement and the Transactions by
and among the parties hereto, pursuant to the following terms and conditions
relating to the submission of bids ("Overbids") for the Premier Assets to be
sold hereunder:
(i) Only persons or entities that comply with the following
procedures will be deemed qualified bidders ("Qualified Bidders") at
the hearing on the motion for approval of the sale of the Premier
Assets contemplated herein (the "Sale Hearing"). Only Qualified Bidders
will be entitled to submit Overbids at the Sale Hearing. MediVision
shall be deemed a Qualified Bidder at the Sale Hearing.
(ii) All Qualified Bidders must prequalify at least five (5)
days before the Sale Hearing. In order to prequalify, any person or
entity intending to submit an Overbid must provide to Premier
sufficient evidence of the person or entity's ability to complete the
transaction, satisfactory to Premier, including evidence of the person
or entity's ability to pay cash not less than the minimum initial
Overbid set forth herein.
(iii) Any initial Overbid must have a minimum value of
$3,400,000 (the "Initial Overbid") subject to adjustment with respect
to the Premier Inventory on the same terms and conditions as those set
forth in this Agreement. Any Initial Overbid must be for the purchase
of the Premier Assets on substantially the same terms as set forth in
this Agreement and must be closed within the timeframe required by this
Agreement.
(iv) If a qualified Initial Overbid is received, bidding will
continue at the Sale Hearing in increments of not less than $25,000 in
value.
(v) All Overbids must be for all, and not less than all, of
the Premier Assets and must provide to OIS additional value of not less
than $110,000 in excess of the consideration to be received by OIS
pursuant to the transactions contemplated by this Agreement and the
Funding Agreement.
(c) Break-Up Fee. If a sale of any or all of the Premier
Assets is consummated with a party other than MediVision or any of its
Affiliates, Premier shall, at the closing of the transaction, pay to MediVision
a break-up fee equal to the greater of (i) one hundred ninety thousand dollars
($190,000) and (ii) five percent (5%) of the final value of the Overbid, as
reasonable compensation for the benefit realized by Premier as well as lost
opportunity costs, commitment of time and personnel to the transaction process
and the out-of-pocket expenses of MediVision in connection with this
transaction, including legal fees and costs, fees and costs in connection with
an audit of the Premier Assets, costs relating to
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MediVision's due diligence investigation and additional fees and costs relating
to legal and regulatory reviews.
(d) Notification of Breach. Premier agrees to promptly notify
in writing the other parties hereto of any events, facts or occurrences which
would constitute or result in a breach of any representation or warranty made by
Premier contained in this Agreement or a breach of any covenant, agreement or
obligation of Premier under this Agreement; provided, however, that no such
disclosure shall be deemed to cure or relieve any such breach or default.
6.4 Public Announcements; Confidentiality. On and prior to the
termination of this Agreement, OIS, Premier and MediVision shall advise and
confer with one another prior to the issuance of any reports, statements or
releases concerning this Agreement, the terms hereof and the Transactions,
except as may be required by the securities laws of the relevant jurisdiction.
Nothing contained in this Section 6.4 shall prevent any party at any time from
furnishing any information to any Governmental Body or pursuant to the
requirements of any applicable law; provided, however, that the disclosing party
shall not make any such disclosure without first notifying the other parties and
allowing the other parties a reasonable opportunity to seek relief from (or
protective order with respect to) the obligation to make such disclosure, such
as a request for confidential treatment.
6.5 Further Assurances. Subject to the terms and conditions provided
herein, including Premier's obligations to pursue Overbids and the rights of OIS
to pursue one or more Superior Proposals, MediVision, Premier 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 and the other Transaction Documents.
ARTICLE VII
CLOSING CONDITIONS
7.1 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 Bankruptcy Court
administering Premier's reorganization under Chapter 11 of the U.S. Bankruptcy
Code (Case No. SA00-12031RA) has approved this Agreement and the Transactions
contemplated hereby.
(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.
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(c) Representations and Warranties. The representations and
warranties of each of the other parties 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 parties hereto have
performed and satisfied in all material respects each of the covenants,
agreements and obligations required to be performed and satisfied by them under
this Agreement on or prior to the Closing Date.
(e) Mutual Release. OIS and Premier shall have entered into a
mutual release which shall provide complete waivers and releases of all claims
against one another, plus covenants by both parties that they will not assert
any claims against the other (subject to a single exception for the claim of OIS
against Premier for the Termination Fee provided in the Stock Purchase Agreement
by and between such parties dated as of February 25, 1998).
(f) Funding Agreement. The transactions contemplated by the
Funding Agreement shall be consummated contemporaneously with the Closing.
(g) 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.
(h) Put and Call Agreement. MediVision and Premier shall have
entered into the Put and Call Agreement.
(i) Registration Rights Agreement. MediVision and OIS shall
have entered into a Registration Rights Agreement substantially in the form of
Exhibit B annexed hereto.
7.2 Condition to MediVision's Obligation. The obligation of MediVision
to consummate the transactions contemplated hereby shall be subject to the
satisfaction at or prior to the Closing of the following condition:
(a) No Material Adverse Effect. Since the date of this
Agreement, there shall not have occurred a Material Adverse Effect with respect
to OIS.
ARTICLE VIII
TERMINATION
8.1 Termination. This Agreement may be terminated at any time:
(a) by mutual written consent of Premier, MediVision and OIS;
(b) by any party if the Closing has not occurred by October
12, 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
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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;
(e) by MediVision if Bankruptcy Court Approval is not obtained
by the close of business on August 11, 2000; and
(f) 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.
8.2 Effect of Termination. In the event that this Agreement shall be
terminated pursuant to this Article VIII, all further obligations of the parties
under this Agreement other than the obligations set forth in Sections 6.1(b) and
6.3(c) and 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 IX
MISCELLANEOUS
9.1 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).
9.2 Remedies Cumulative. Except as may otherwise be provided herein,
the remedies provided herein shall be cumulative and shall not preclude
assertion by any party hereto of any other rights or the seeking of any other
remedies against any other party hereto.
9.3 Brokerage. Each party hereto will indemnify and hold harmless the
other parties 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.
9.4 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.
9.5 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
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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 9.5.
9.6 Amendments and Waivers.
(a) Any provision of this Agreement 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.
(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.
9.7 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.
9.8 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.
9.9 Expenses. Each party will pay all of its own expenses, including
attorney's fees, incurred in connection with the negotiation of this Agreement,
the performance of its obligations hereunder and the consummation of the
transactions contemplated by this Agreement.
9.10 Counterparts. This Agreement may be executed in counterparts and
the signatures delivered by telecopy in the manner provided in Section 9.5, each
of which shall be deemed to be an original but which taken together shall
constitute one agreement with the same effect as of the signatures were upon the
same instrument and delivered in person.
9.11 Assignment; No Third-Party Beneficiaries.
(a) Except as otherwise expressly provided herein, this
Agreement and the rights hereunder shall not be assignable or transferable by
any party without the prior written consent of all the other parties 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.
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(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.
9.12 Interpretation. This Agreement, including any exhibits, addenda,
schedules and amendments, has been negotiated at arm's length and between
persons sophisticated and 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.
9.13 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.
(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 the
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
PREMIER LASER SYSTEMS, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
Address: 3 Morgan
Irvine, CA 92618
Attention: President
Facsimile: (949) 859-5241
Telephone No. (949) 859-0656
With a copy to: O'Melveny & Myers LLP
610 Newport Center Drive, #1700
Newport Beach, CA 92660
Attention: Suzzanne Uhland, Esq.
Facsimile: (949) 823-6994
Telephone: (949) 823-6971
[Signature Page to Securities Purchase Agreement]
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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 Securities Purchase Agreement]
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EXHIBIT A
FORM OF PUT AND CALL AGREEMENT
------------------------------
[ATTACHED]
<PAGE>
EXHIBIT B
FORM OF REGISTRATION RIGHTS AGREEMENT
-------------------------------------
[ATTACHED]
